Suspended But No Written Statement Required
An attorney who had mishandled two ciminal defense matters was suspended for five months by the Wisconsin Supreme Court.
The attorney had a record of prior discipline
Attorney C. was admitted to the practice of law in Wisconsin in 1987 and practices in Appleton. In 1992 he received a private reprimand for failing to hold funds in trust in which both he and his former law firm claimed an interest. In 1997 he received a private reprimand for performing work for a client after his services were terminated and for misrepresenting that he had filed a motion on behalf of the client. In 1999 he received a public reprimand for neglect of a matter, failing to communicate with a client, and failing to return a retainer.
In 2002 Attorney C.’s license was suspended for one year for eight counts of professional misconduct, four of which related to trust account and fee matters, and the other four involving failure to diligently pursue a client’s claim, failure to keep a client reasonably informed about the status of a matter, failure to disclose to and cooperate with the Board of Attorneys Professional Responsibility (the predecessor to the Office of Lawyer Regulation (OLR)), and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation...While suspended, Attorney C. consented to the issuance of a public reprimand for pre-suspension conduct involving loaning funds to a personal injury client in conjunction with pending litigation…
The referee said given the number of violations proven and Attorney C.’s disciplinary history, the sanction suggested by Attorney C. was inappropriate and unduly lenient. The referee concluded that a five-month suspension was appropriate. In reaching this conclusion, the referee noted that the OLR failed to meet its burden of proof as to three of the ten counts alleged in its complaint. The referee found no proof of actual harm resulting from Attorney C.’s misconduct. The referee noted that both T.R. and J.H. were convicted after trials. T.R.’s convictions were appealed. Although Attorney C. failed to properly initiate the appeal process in one case, failed to obtain a written conflict waiver, and misrepresented certain information to T.R., the referee pointed out that the court of appeals allowed both appeals to go forward. Thus, the referee reasoned Attorney C.’s misconduct caused the potential for harm to T.R. in the appellate process as opposed to actual harm.
The court rejected one proposal
We choose not to follow the referee’s recommendation that Attorney C. be required to file a written statement that he has read, understands, and agrees to be bound by and obey the court’s rules concerning professional conduct for attorneys and the rules governing disciplinary proceedings. As noted in the Preamble to Wisconsin Rules of Professional Conduct for Attorneys, “Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings.” SCR Chapter 20 Preamble, ¶[16]; see also id., ¶[7] (“A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.”) All lawyers who practice law in Wisconsin are bound by the rules of professional conduct for attorneys and are presumed to know the rules and follow them. Requiring an attorney to file a written statement averring that he or she understands and agrees to be bound by the rules is redundant and unnecessary.
(Mike Frisch)