The Wisconsin Supreme Court affirmed a referee’s findings of misconduct in two of four charged instances but reduced the proposed 60 day suspension to a public reprimand with costs. The attorney had represented a bridal shop owner in a conversion action brought against a bank and its lawyer that had seized assets of the client’s prior business in a replevin action. The lawyer had missed a court appearance, leading to dismissal of the case. He thereafter appeared and claimed that a health issue had prevented him from appearing. The judge found that he had not established good cause and refused to reinstate the matter.
The referee rejected charges that the conversion claim was frivolous. The court agreed:
The tests that we apply in this disciplinary matter are whetherthere was clear, satisfactory, and convincing evidence that Attorney Osickaknowingly advanced a claim or defense that was unwarranted under existing lawor could not be supported by a good-faith argument for an extension,modification or reversal of existing law, and whether therewas clear, satisfactory, and convincing evidence that Attorney Osicka knowinglyadvanced a factual position without a basis for doing so that was not frivolous. In other words, the OLR was obligated to showthat Attorney Osicka, in fact, knew the claim or factual position he wasadvancing was unwarranted.
The referee concluded that the OLR had not met thesestandards. This is supported by thereferee’s finding that the OLR, through the testimony of the attorneys for theBank, never disproved that the Bank had improperly seized L.A.’spersonal property and records that were not subject to its securityinterest. Similarly, the referee made nofinding that Attorney Osicka knew that L.A.had not started a new, legally separate business, but nonetheless wentforward with his claim that the Bank had improperly seized assets belonging tothe new business. To the contrary, thereferee pointed out that L.A. had stated inher affidavit that she had created a new business entity with separateinventory. Moreover, the referee foundthat Attorney Kostka may have had personal knowledge before the execution ofthe replevin order that L.A. had separated inventory items between her twobusiness entities, but nonetheless participated as an agent of the Bank in theexecution of a replevin order that resulted in a seizure of assets withoutconsideration of which entity owned the assets. We agree with the referee that the evidence presented in this proceedingsimply did not meet the rather high burden of showing that Attorney Osickasubjectively knew he did not have a good-faith basis for advancing his factualassertions or claims, but nonetheless went forward with those factualassertions and claims.
The court agreed with the referee that, in an unrelated matter, the lawyer had failed to fully respond to the bar’s request for information. The lawyer’s actions in providing the information on the day before a proposed interim suspension for failure to respond violated the duty to cooperate.
In another matter, the attorney had failed to return an unearned fee. The attorney had made a late-blooming assertion that the fee was non-refundable. (Mike Frisch)
