Vol. 76, No. 5, May
2003
Private Reprimand Summaries
The Wisconsin Supreme Court permits the Office
of Lawyer Regulation (OLR) to publish, for educational purposes, in
an official State Bar publication a summary of facts and professional
conduct rule violations in matters in which the OLR imposed private
reprimands. The summaries do not disclose information identifying the
reprimanded attorneys. The following summaries of selected private
reprimands, imposed by the OLR, are printed to help attorneys avoid
similar misconduct problems. Some of the summaries may indicate
violations of the rules that were in effect prior to Jan. 1, 1988. The
current rules proscribe the same types of misconduct. Under the new
rules of lawyer regulation, a court-appointed referee will impose
private reprimands with consent of the attorney. See SCR 22.09
(2000).
Sexual Relationship with a Client
Violation of SCR 20:1.8(k)
In 2001 an attorney was retained by a client to represent him in his
divorce. The attorney and the client did not have a sexual relationship
before the attorney-client relationship was established. For
approximately one month during the attorney's representation of the
client, the attorney and the client were involved in a consensual sexual
relationship. For several weeks after the termination of their sexual
relationship, the attorney continued to represent the client. The
attorney then reported her conduct to the Office of Lawyer Regulation
(OLR) and withdrew from representing the client.
By engaging in sexual relations with her client when the attorney did
not have a sexual relationship before the attorney-client relationship
was established, the attorney violated SCR 20:1.8(k)(2).
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Conflict of Interest
Violation of SCR 20:1.9(a)
A father retained an attorney to terminate the parental rights (TPR)
of his son's biological mother and to handle the adoption of his son by
his wife. The attorney met with the husband and wife to obtain the
necessary information to prepare the TPR and adoption documents. The
attorney was listed as the wife's attorney on the petition for adoption
and as the attorney handling the case on the report of adoption. The
court granted the wife's petition for adoption.
Subsequently, the husband retained the attorney to represent him in a
divorce from his wife. The attorney filed a petition for divorce on
behalf of the husband wherein the husband requested joint custody of the
minor children, including the adopted son, primary physical placement,
and child support. The attorney voluntarily withdrew from the
representation after the wife's attorney raised the issue of a conflict
of interest.
By representing the husband in the divorce, the attorney represented
a person in a matter substantially related to the adoption in which the
husband's interests were materially adverse to the interests of the
wife, a former client, without the former client's written consent, in
violation of SCR 20:1.9(a).
The attorney had no prior discipline.
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Expediting Litigation: Disobeying Obligation
Under Rules of Tribunal
Violations of SCR 20:3.2 and 20:3.4(c)
An attorney represented a defendant in a civil action. On motion of
the plaintiff's attorney, the judge in the case granted judgment in the
plaintiff's favor because the attorney for the defendant failed to
comply with discovery requests, failed to comply with specific court
orders pertaining to discovery, and failed to advance the litigation in
compliance with court directives. The attorney stated that his failure
to advance the litigation was due to his client's failure to cooperate,
despite the attorney's repeated requests that the client do so. However,
the evidence showed that the attorney's failure to comply with a court
order regarding discovery and his failure to timely communicate his
choice of a mediator were not caused by the client's lack of
cooperation.
By failing to comply with specific court orders pertaining to
discovery, and by failing to make a timely selection of a mediator, the
attorney violated SCR 20:3.2, which requires a lawyer to make reasonable
efforts to expedite litigation, and SCR 20:3.4(c), which provides that a
lawyer shall not knowingly disobey an obligation under the rules of a
tribunal.
The attorney had a previous private reprimand.
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Lack of Diligence: Failure to Deposit and
Hold Advance Payment of Fee in Trust
Violations of SCR 20:1.3, 20:1.15(a), and
20:1.15(d)
A client paid an attorney an advance fee of $4,000 that was to be
applied toward the attorney's hourly fees to seek help for the client's
mentally ill son. The client was concerned that her son was not
receiving adequate mental health care while he was incarcerated. The
attorney failed to deposit the advance payment into his client trust
account.
Over the next seven months, the attorney did nothing to advance the
case. He did not contact the son, any treatment providers, the public
defender who had recently represented the son in a mental capacity
proceeding, or the facility where the son was incarcerated. The
attorney's records showed that the file would come up for review once a
month, at which time the attorney would do some legal research into the
medical treatment rights of inmates and on the question of whether the
client's son was legally competent to sign medical releases. When the
attorney finally wrote to the son to request his signature on a medical
release form, he learned that the son had already been released. The
attorney promised to refund the advance fee as soon he was able to do
so, but had not done so when the client filed a grievance two months
later. Approximately one month after the initial contact by the OLR, the
attorney did provide a full refund check.
The OLR found, and the attorney agreed, that this conduct constituted
a failure to act with reasonable diligence and promptness on behalf of
the client, contrary to SCR 20:1.3; a failure to hold funds belonging to
a client in the attorney's client trust account, contrary to SCR
20:1.15(a); and a failure to hold fees in trust until there had been an
accounting and severance of interests, contrary to 20:1.15(d).
The attorney had no prior discipline.
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Misrepresentations to Third Party and to
Office of Lawyer Regulation
Violations of SCR 20:8.4(c) and 22.03(6)
The grievant's son is the president and majority shareholder of a
corporation. In 1996 the son proposed that the grievant and his wife
sell the shares of corporate stock they owned to the son for
approximately $14,000, which equaled the stock's cost basis. The stock's
actual value at the time of the transfer was approximately $187,000. The
grievant's son proposed, and the grievant and his wife agreed, that the
transfer of the stock for less than the actual value would serve as a
pre-inheritance transfer.
On July 14, 1999, the grievant's son filed a divorce action against
his wife. An attorney, who was then in-house counsel for the
corporation, appeared "of counsel" in the divorce case for several
months in 1999. The corporation's attorney attended court hearings,
participated in settlement discussions, and was aware of the issues in
the case, one of which was the value of the corporation's stock.
On Jan. 7, 2000, a pretrial conference was held in the divorce case.
The divorce attorney for the grievant's son represented to the court
that the son's shares of stock in the corporation were a marital asset
and thus could be divided equally. At some time after the pretrial
conference, it was brought to the attention of the attorney for the
grievant's son that certain shares had been gifted to the grievant's son
from the grievant and that the son wanted the court to treat certain
shares as not subject to property division in the divorce as a result of
this gift. The son's attorney states she expressed an interest in having
documentation to support this claim.
On Jan. 24, 2000, the corporation's attorney and the son's attorney
had a phone conversation regarding the stock transfer. Around this same
time, the corporation's attorney sent the son's attorney a draft of an
affidavit prepared for the grievant's signature regarding the transfer.
The son's attorney suggested several revisions to the affidavit and
provided those revisions to the corporation's attorney. On Feb. 4, 2000,
the corporation's attorney accompanied the grievant's son on a visit to
the grievant to obtain his signature on the affidavit regarding the 1996
stock transfer. The affidavit incorporated the majority of the revisions
made by the son's attorney. The last sentence of the last paragraph of
the affidavit states: "At the time of the transfer of the stock my
intent and that of my wife was to gift this stock solely to my son, to
the extent of its value beyond the $14,904.57 he paid." Before making
the visit, the corporation's attorney never contacted the grievant to
discuss his recollection of the events resulting in the transfer.
The corporation's attorney told the grievant that the affidavit was
for the purpose of preparing for an IRS audit of either the corporation
or the grievant's son. The divorce proceeding and the potential use of
the affidavit in the divorce were not discussed. The grievant read the
affidavit and signed it. The grievant did not ask the corporation's
attorney about the fact that the affidavit stated the gift was given
solely to the grievant's son, and the corporation's attorney did not
explain any implications of the affidavit stating that the gift was
given solely to the son.
Shortly after the affidavit was filed in the divorce proceeding, the
grievant learned of this fact and was upset that the affidavit had been
used in the divorce. The grievant stated that he had been misled by the
corporation's attorney and his son regarding the purpose of the
affidavit. The grievant states that he never would have signed the
affidavit if he knew it was going to be used in the divorce, especially
if he knew that it would be used by his son in an attempt to keep the
shares of stock away from his wife. The grievant stated that it was his
intention to provide the stock to his son's entire family and not to his
son solely and that the transfer was not a gift.
The corporation's attorney maintains that the reason the affidavit
was prepared was to document the 1996 transfer in case of an IRS audit
of the corporation. The attorney claimed that, based on his
conversations with the grievant's son about the transfer, he believed
that the transfer was a gift.
In the course of its investigation, the OLR asked the corporation's
attorney if he had had contact with the attorney for the grievant's son
concerning the affidavit before it was signed by the grievant. The
corporation's attorney responded that he did not have contact with the
son's attorney regarding the affidavit before it was signed.
By telling the grievant that the affidavit was for the purpose of
preparing for an IRS audit of either the corporation or the grievant's
son and by withholding from the grievant the fact that the true purpose
of the affidavit was for use in the divorce proceeding, the
corporation's attorney engaged in conduct involving dishonesty, fraud,
deceit, or misrepresentation in violation of SCR 20:8.4(c).
By informing the OLR that he had no contact with the son's attorney
before the affidavit was signed, the corporation's attorney engaged in
conduct involving dishonesty, fraud, deceit, or misrepresentation in
violation of SCR 20:8.4(c) and 22.03(6).
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Failure to Act with Reasonable Diligence,
Failure to Communicate, and Conduct Involving Misrepresentation
Violations of SCR 20:1.3, 20:1.4, and 20:8.4(c)
In late summer 1995, a client retained an attorney to pursue
post-conviction relief. The client expected the attorney to review the
entire file, prepare a motion for post-conviction relief, and present
the motion to an appropriate tribunal. While the work was ultimately
done, the vast majority of the work was not completed until after a
grievance was filed (in 2001) and after several letters from the client.
In connection with the representation, the attorney violated SCR 20:1.3
by failing to act with reasonable diligence and promptness, SCR 20:1.4
by failing to keep the client reasonably informed and by failing to
comply with reasonable requests for information, and SCR 20:8.4(c) by
misleading the client about the status of the matter.
The attorney had no prior discipline.
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Lack of Communication, Lack of Diligence, and
Improper Withdrawal in a Civil Matter
Violations of SCR 20:1.4(a), 20:1.3, and
20:1.16(d)
A client retained an attorney to represent him following a fall on an
escalator at an establishment. Shortly thereafter, the establishment's
insurer requested confirmation of a meeting with the attorney. The
attorney did not confirm the meeting but called the insurer four days
after the scheduled meeting and stated he needed to reschedule and would
call back with a new date and time. The attorney had no further contact
with the insurer. The next month, the attorney received a copy of a
letter from the insurer to an escalator company. The letter denied
liability on behalf of the insured and stated that the insured had a
contract with the escalator company to maintain and repair the
escalators. The attorney never contacted the escalator company about its
possible liability. Four months later, the attorney was informed that
the insurer had denied his client's claim. The attorney tried to call
the client, but the client's phone was disconnected. The attorney made
no further attempts to contact the client.
The next contact between the client and the attorney occurred almost
two and a half years later, when, in light of the impending statute of
limitations' expiration, the client wrote asking for a copy of his file
and an update of his case. The attorney sent the client his file along
with a letter stating that he would be making no further claim on the
matter. The client was incarcerated at this time. The client wrote back
asking for a copy of his medical bills and any investigation the
attorney had completed. The client also expressed dismay at not being
told of the denial of his claim. The attorney responded, saying he had
no medical bills and the client had been provided with his complete
file. Despite the fact that the client's file contained a signed medical
release, the attorney had obtained no medical records. The file was void
of evidence that the attorney completed an investigation into the
client's claim.
By failing to timely inform the client that the insurer had denied
his claim, the attorney failed to keep a client reasonably informed
about the status of the matter, in violation of SCR 20:1.4(a). By
failing to meet with the insurer, contact the escalator company, obtain
the client's medical records, or complete any investigation, the
attorney failed to act with reasonable diligence and promptness in
representing a client, in violation of SCR 20:1.3. By withdrawing
approximately one month before the statute of limitation ran and while
the client was incarcerated, the attorney did not give reasonable notice
of the withdrawal to the client and did not allow time for the
employment of other counsel, in violation of SCR 20:1.16(d).
The attorney has no prior discipline.
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Lack of Diligence
Violation of SCR 20:1.3
An attorney represented a defendant who was convicted and sentenced
in federal court. The attorney was appointed as the defendant's
appellate counsel and was ordered to file the appellant's opening brief
by Jan. 17, 2001. After the court issued an order to show cause for the
attorney's failure to file the appellate brief, the attorney filed his
first of three motions for an extension to file the brief. The court
granted each of the motions.
When the attorney still failed to file the brief by the extended
deadline, the court issued a second order to show cause. The attorney
responded that he had completed the brief and that it would be filed no
later than July 6, 2001. When the attorney filed neither a brief nor a
request for further extension by that date, the court issued a third
order directing the attorney to show cause why he should not be
disbarred for failing to prosecute the appeal and for making false
promises to the court. The attorney responded that he would be filing an
Anders brief and motion to withdraw on Sept. 5, 2001, which he did.
Subsequently, the court censured the attorney for failing to meet
deadlines, failing to keep multiple promises made to the court, and
giving preference to the interests of other clients over the interests
of an imprisoned client who needed a vigorous appellate advocate.
Ultimately, the court accepted the Anders brief, granted the attorney's
request for leave to withdraw, and dismissed the defendant's appeal.
By failing to meet multiple filing deadlines and failing to keep
multiple promises made to the court, the attorney failed to act with
reasonable diligence and promptness in representing the defendant, in
violation of SCR 20:1.3.
The attorney had a prior private reprimand.
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Failure to Calendar Deadline for Filing
Federal Estate Tax Return and Failure to Inform Client of Missed
Deadline
Violations of SCR 20:1.3, 20:1.4(a), and
20:8.4(c)
In December 1999, an attorney began representing the personal
representative of an estate. Based on the decedent's date of death of
Dec. 8, 1999, the deadline for filing the federal estate tax return or a
request for extension of time to file the return with a tender of the
estimated tax liability was Sept. 8, 2000. Due to the attorney's failure
to calendar the Sept. 8, 2000 deadline, the tax return was not timely
filed nor was an extension request with a tax tender made. As a result,
the IRS and the Wisconsin Department of Revenue assessed interest and
penalties in the combined amounts of approximately $28,000, and $60,000,
respectively.
The attorney did not become aware that the deadline had been missed
until January 2001, when a paralegal who was working on the file brought
the matter to the attorney's attention. In April 2001, the attorney made
a tender of the tax liability and informed the personal representative
of the amount of the tax tender, that the estate tax return was late,
and that interest and penalties were due. The attorney did not inform
the personal representative of the specific amounts of the interest and
penalties and did not disclose that the interest and penalties were due
because the attorney had missed the Sept. 8, 2000 deadline.
Upon review of the file in July 2001, the paralegal informed the
firm's office manager that the estate tax return had not yet been filed.
After an investigation by firm management, the personal representative
and his brother were informed by the firm in August 2001 that the
attorney had missed the Sept. 8, 2000 deadline and what the specific
amounts of the interest and penalties were. The firm's malpractice
carrier was advised of the attorney's conduct, and the attorney was
terminated at the end of August 2001. On Aug. 23, 2001, the attorney
reported his conduct to the OLR. The firm's malpractice carrier has
reimbursed the estate for the amounts of interest and penalties.
By failing to calendar the Sept. 8, 2000 deadline, and by failing to
take prompt action upon learning that the deadline had been missed,
which resulted in significant interest and penalties to the estate, the
attorney failed to act with reasonable diligence and promptness in
representing a client, in violation of SCR 20:1.3. By failing to inform
the personal representative in January 2001 that the deadline for filing
the estate tax return had been missed and the amounts of the interest
and penalties due, the attorney failed to keep a client reasonably
informed about the status of a matter, in violation of SCR 20:1.4(a). By
failing to disclose to the personal representative in April 2001 that
the attorney had missed the Sept. 8, 2000 deadline to file the estate
tax return or request an extension, that the interest and penalties were
attributable to the attorney's error, and what the specific amounts of
the interest and penalties were, the attorney engaged in conduct
involving misrepresentation by omission, in violation of SCR
20:8.4(c).
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Communication with Party Represented by
Counsel
Violation of SCR 20:4.2
In March 2001, an attorney filed two petitions for termination of
parental rights (TPR) on behalf of a woman who wanted to terminate the
parental rights of the father of her two children. In April 2001, a
lawyer was appointed by the State Public Defender's Office to represent
the father. At a May 2001 plea hearing, the lawyer requested a jury
trial on the father's behalf, and a trial date was scheduled for August
2001.
In June 2001, the woman's attorney retrieved a voicemail message from
the father stating that he "wanted to sign voluntarily terminations."
Shortly after the attorney listened to the voicemail message, the father
arrived at the attorney's office. The attorney told the father that she
should not talk to him because he was represented by an attorney. The
father responded that he did not have an attorney. The attorney then
called the father's lawyer to determine whether the lawyer was still
representing the father. The father's lawyer was not in the office, so
the attorney left a voicemail message.
The attorney then completed two affidavits of consent to TPR,
obtained the father's signature on both affidavits, and notarized the
affidavits. The attorney also obtained the father's signatures on a
stipulation and order, drafted by the attorney, which set the amount of
child support arrears owed by the father to zero. The attorney did not
explain the documents or their legal significance to the father.
The attorney then faxed a letter and copies of the documents to the
father's lawyer and to the guardian ad litem. In the letter, the
attorney stated that the father appeared in her office that morning
requesting to sign the TPR consent forms. She further indicated that she
was concerned about speaking with the father because he was represented,
but he indicated he wished to proceed without an attorney. The attorney
also wrote a letter to the court that stated the father had recently
signed the affidavits of consent to the TPR. Two days later, the
father's lawyer wrote to the court indicating that the affidavits were
obtained from the man without the lawyer's consent. The father's lawyer
continued to represent the father through the conclusion of both
cases.
By obtaining the father's signature on the affidavits of consent to
the TPR and the stipulation concerning child support, when the attorney
knew the father was represented by a lawyer and without the lawyer's
consent, the attorney knowingly communicated about the subject of the
representation with a party she knew to be represented by another lawyer
without consent of that lawyer, in violation of SCR 20:4.2.
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Lack of Competence, Unreasonable Fee, Lack
of Diligence, Lack of Communication, Failure to Return an Unearned Fee,
and Failure to Obtain a Written Waiver for a Potential Conflict of
Interest
Violations of SCR 20:1.1, 20:1.5(a), 20:1.3, 20:1.4(b),
20:1.16(d), and 20:1.7(b)
The private reprimand is based upon the attorney's representation of
three clients in three separate matters. In the first matter, a client
paid the attorney $500 in May 2000 to file a post-conviction motion for
a sentence modification. The client told the attorney that he was
improperly sentenced under the truth-in-sentencing law. The attorney
converted the client's assertions into an affidavit and attached the
affidavit to a motion that he eventually filed in circuit court. The
attorney admitted that, prior to drafting the motion, he had only
reviewed an old statute book from 1995-1996 for the sentence ranges and
that he was unaware that truth-in-sentencing had changed the length and
structure of criminal sentences. The attorney also relied on the
original judgment of conviction that he had received from the client.
The attorney was not aware that the court had issued a corrected
judgment, because he had never reviewed the docket sheet or the court
file.
The court ultimately denied the client's motion because the sentence
was proper under truth-in-sentencing. The attorney eventually refunded
$500 to the client in September 2002. By failing to perform the minimal
research necessary to determine whether the client's sentence was
correct under the truth-in-sentencing law and by failing to review the
court file prior to filing the motion, the attorney failed to provide
the client with competent representation, in violation of SCR 20:1.1. By
charging the client $500 to file a motion that had no good legal or
factual basis, the attorney charged an unreasonable fee, in violation of
SCR 20:1.5(a).
In a second matter, a client retained the attorney to file a
postconviction motion for a sentence modification. The client paid the
attorney a flat fee of $1,950. After reviewing the file, the attorney
filed a writ of habeas corpus. In May 2001 the district attorney filed a
motion to quash the petition. The district attorney argued that the writ
was deficient for the following two reasons: 1) the petition did not
comply with the requirements of Wis. Stat. section 782.04(4) because the
client had failed to attach a copy of the "order or process" that
resulted in his imprisonment; and 2) the petition failed to show that
the client had exhausted all of his administrative remedies. Before the
attorney responded, the court issued an order quashing the petition on
May 17, 2001, based upon the district attorney's arguments. While the
attorney maintained that he had attached all of the necessary documents
to the petition, he made no effort to rectify the ministerial error
after the court had quashed the petition. In a letter dated May 22,
2001, the attorney advised the client of the court's decision but did
not explain specifically why the court had quashed the petition or what
further action the client could take to challenge the dismissal.
By failing to provide the necessary documents to cure the deficiency
in the petition, the attorney failed to act with reasonable diligence
and promptness, in violation of SCR 20:1.3. By failing to explain to the
client the court's decision or a course of action to challenge the
dismissal, the attorney failed to explain a matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation, in violation of SCR 20:1.4(b). By not
returning the fee that the client had paid to him after failing to take
simple steps to cure the deficiency in the writ of habeas corpus
petition, the attorney failed to return an advance payment of fee that
had not been earned, in violation of SCR 20:1.16(d).
In a third matter, a client retained the attorney to amend a trust.
The attorney drafted several documents for the client, including a new
will, an amended trust, a general durable power of attorney, and a power
of attorney for health care. In the will, the attorney was named as the
personal representative. In the general durable power of attorney and
power of attorney for health care, the attorney was named as attorney in
fact. The attorney did not give the client written disclosure of the
potential conflict of interest entailed in naming himself as the
personal representative of her estate and as attorney in fact in the
general durable power of attorney and power of attorney for health care.
Further, he did not obtain the client's written consent acknowledging
disclosure of the potential conflict of interest. The attorney engaged
in a violation of SCR 20:1.7(b) when he failed to obtain from the client
a written consent waiving the potential conflict of interest, since his
representation of the client might have been materially limited by his
own interests.
The private reprimand was conditioned on the attorney returning the
$1,950 fee to the second client. The attorney had no prior
discipline.
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Lack of Diligence and Failure to Cooperate
with OLR's Investigation
SCR 20:1.3, 21.15(4), and 22.03(6)
In February 1999 a client retained an attorney to represent him at
his parole revocation hearing. The hearing was held on Tuesday, April 6,
1999. At the attorney's request, the record was held open so that the
attorney could submit written closing arguments by the end of the week,
Friday, April 9, 1999. Six days after the closing arguments were due, on
April 15, 1999, the attorney requested from the hearing examiner an
extension to submit closing arguments by April 16, 1999. The hearing
examiner granted the extension. The attorney, however, failed to submit
the written closing arguments by April 16, 1999. On April 19, 1999, the
hearing examiner issued a written opinion revoking the client's parole.
In the decision, the hearing examiner noted that she had not received
any closing arguments on the client's behalf, even though she had held
open the record until April 16, 1999.
The attorney also failed to cooperate with the OLR's investigation of
the client's grievance. The attorney's response to the grievance was due
on Dec. 28, 2000. Despite the OLR's numerous requests for a response,
the attorney did not submit his response until June 7, 2001.
Subsequently, the OLR requested additional information from the
attorney. The attorney, however, never submitted a response to the
second request for information.
By failing to file written closing arguments after the client's
revocation hearing, the attorney failed to act with reasonable diligence
and promptness in representing a client, in violation of SCR 20:1.3.
Further, by failing to respond to the OLR's requests for information,
the attorney failed to cooperate with the OLR in its investigation of a
grievance, in violation of SCR 21.15(4) and 22.03(6).
The attorney had previously been privately reprimanded.
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Conflict of Interest Involving Former
Client
Violation of SCR 20:1.9(a)
A man was charged with felony child abuse and disorderly conduct
arising from his mistreatment of his stepson (his wife's son from a
prior relationship). The man retained the attorney to defend the
charges, which were ultimately the subject of a plea agreement pursuant
to which the man was convicted of battery and disorderly conduct. The
man was sentenced to a jail term and probation. While that case was
pending, the attorney also represented the man's wife in placement
issues between her and the father of the child victim. The custody
issues arose from the same events that gave rise to the criminal
charges. The custody issues were resolved by stipulation and order.
The man subsequently filed for divorce against his wife. The attorney
did not represent either party. Both parties hired other counsel to
represent them. The court awarded joint custody of their minor daughter,
with primary placement being awarded to the woman.
The man subsequently commenced proceedings seeking to limit or
terminate the woman's placement rights, alleging, in part, that she had
earlier abandoned her daughter and had made inappropriate child care
arrangements. The woman initially requested that the respondent attorney
represent her in the child placement case. The attorney asked the man to
sign a conflict of interest waiver so that the attorney could represent
the woman in the placement matter, but the man, through his own counsel,
refused to grant a waiver. The woman hired another attorney to represent
her.
The respondent attorney told OLR that he sought the waiver because he
believed it would be "an inherent conflict" to represent one of his
former clients in litigation against the other in light of the subject
matter of the dispute. The attorney recognized the need for a waiver and
acknowledged it was clearly refused and would not likely ever be
granted.
The court held de novo hearings regarding the man's efforts to modify
the placement arrangement. The man's own status as a convicted child
abuser came up as well. The wife's attorney called the respondent
attorney to testify regarding a business venture in which the woman was
involved. The purpose of the respondent's testimony was to establish
that the woman had not abandoned her child, but rather had taken a
legitimate business trip. During cross-examination by the man's
attorney, the respondent acknowledged that he had sought a waiver of
conflict of interest from the man so he could represent the woman and
that it was refused.
The man prevailed in the placement case. The woman wanted to appeal
the adverse decision, but she no longer had counsel. The woman requested
assistance from the respondent attorney, who acknowledged assisting the
woman in preparing documents to effect an appeal of the adverse order.
The respondent attorney's assistance included drafting language
describing the nature of the action and the formulation of the issues to
be presented to the court of appeals as well as the appropriate standard
of review and statutory sections deemed to support the appeal. The
attorney also assisted the woman in preparing a notice of appeal and
reporter's statement on transcript.
In assisting the woman to prepare an appeal in a child placement
matter against the man, a former client, when the man had previously
refused to consent to the attorney's representation of the woman in the
case, and when the attorney had previously represented the man in a
matter relating to the man's treatment of one of the woman's children,
the attorney violated SCR 20:1.9(a), which states that a lawyer who has
formerly represented a client in a matter shall not represent another
person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former
client unless the former client consents in writing after
consultation.
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Lack of Diligence and Failure to Enter into
a Written Contingent Fee Agreement in a Civil Matter
Violations of SCR 20:1.3 and 20:1.5(c)
A client was referred to an attorney for representation relating to
an automobile accident. The referring attorney advised the new attorney
that the client was seeking to recover lost income resulting from his
truck being in disrepair. The referring attorney also indicated that the
fee agreement between the new attorney and the client would remain as it
was between the referring attorney and the client, with the new attorney
receiving one-third of the recovery.
Shortly thereafter, the client and attorney met, and it was decided
that a small claims action would be filed. On the same day, the client
made a payment to the attorney for payment of the filing fees. The
client and attorney discussed the fee agreement, but it was never
reduced to writing.
Approximately six months after their initial meeting, the client
called the attorney to check on the status of his case and was told that
nothing had been done. The attorney asserts that nothing had been done
because of difficulties reaching the client, but there was no evidence
the attorney ever tried to reach the client. The attorney later admitted
that following the initial meeting, the attorney had all the information
needed to file an action.
Approximately seven months after their initial meeting, the attorney
filed a small claims action on the client's behalf. The case was
ultimately dismissed for lack of jurisdiction.
By failing to file an action on the client's behalf for almost seven
months despite having all the information needed to do so, the attorney
failed to act with reasonable diligence and promptness in representing a
client, in violation of SCR 20:1.3. By failing to enter into a written
contingent fee agreement with the client, the attorney violated SCR
20:1.5(c). As a condition of this reprimand, the attorney reimbursed the
client the amount of the filing fee.
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