Vol. 78, No. 3, March
2005
Lawyer Discipline
The Office
of Lawyer Regulation (formerly known as the Board of Attorneys
Professional Responsibility), an agency of the Wisconsin Supreme Court
and component of the lawyer regulation system, assists the court in
carrying out its constitutional responsibility to supervise the practice
of law and protect the public from misconduct by persons practicing law
in Wisconsin. The Office of Lawyer Regulation has offices located at
Suite 315, 110 E. Main St., Madison, WI 53703, and Suite 300, 342 N.
Water St., Milwaukee, WI 53202. Toll-free telephone: (877)
315-6941.
Disciplinary Proceeding against William J.
Gilbert
On Nov. 24, 2004, the Wisconsin Supreme Court suspended the law
license of William J. Gilbert for six months. Disciplinary
Proceedings Against Gilbert, 2004 WI 144. The suspension was made
retroactive to April 7, 2004, the date on which Gilbert was eligible to
apply for reinstatement of his license from an earlier six-month
suspension. SeeDisciplinary Proceedings Against Gilbert, 2003
WI 131. The court also ordered Gilbert to make restitution to his client
of $15,797.37, plus post-judgment interest, and to pay the costs of the
disciplinary proceeding.
Gilbert's misconduct consisted of borrowing $10,500 from a client on
terms that were unfair and unreasonable, based on Gilbert's failure to
offer collateral, failure to disclose his financial circumstances,
failure to offer the client the opportunity to seek independent counsel,
and failure to obtain the client's written consent, in violation of SCR
20:1.8(a). By failing to disclose to the client the extent of Gilbert's
financial difficulties, despite his knowledge that he was an extremely
poor credit risk, Gilbert also violated SCR 20:8.4(c) which prohibits
conduct involving dishonesty, fraud, deceit, or misrepresentation.
Additionally, Gilbert violated SCR 20:1.16(d) by failing to promptly
forward the client's files to his new attorney on termination of
Gilbert's representation, and he violated SCR 22.03(2) and SCR 20:8.4(f)
by failing to submit a written response to the client's grievance. With
respect to the last violation, however, the court noted that Gilbert's
wife was very ill at the time he failed to file a written response to
the grievance and that Gilbert did cooperate later in the
investigation.
Disciplinary Proceeding against Bruce B.
Jacobson
On Dec. 23, 2004, the Wisconsin Supreme Court suspended the law
license of Bruce B. Jacobson, 59, Milwaukee, for five months, commencing
Jan. 27, 2005. The court also imposed the following conditions on
Jacobson's license: 1) payment of restitution of $2,058 to the Client
Security Fund and $100 to a client; 2) filing for two years of semi-
annual reports regarding his psychological condition; 3) on
reinstatement, monitoring of his practice by an attorney approved by the
Office of Lawyer Regulation (OLR) for two years; and 4) on
reinstatement, filing for two years of quarterly reports on his trust
account. The court also ordered Jacobson to pay the $18,705.19 costs of
the disciplinary proceeding.
The court found 12 counts of misconduct relating to Jacobson's
representation of six clients. In one matter, Jacobson represented a
client regarding a personal injury claim. After withholding $2,058 from
the client's settlement to pay six health care providers, Jacobson
failed to disburse those proceeds to the care providers or notify them
of the settlement, violating SCR 20:1.15(b), currently SCR
20:1.15(d)(1). Instead, Jacobson disbursed $2,000 to himself, thereby
converting the funds, violating SCR 20:8.4(c). Jacobson's failure to pay
the care providers also harmed the client's credit and resulted in the
client having to pay approximately $100 in interest for late payments.
The Client Security Fund (now known as the Wisconsin Lawyers' Fund for
Client Protection) ultimately reimbursed the client for the $2,058
converted by Jacobson. During the investigation, Jacobson led the OLR to
believe that he was unaware that the care providers had not been paid
and misrepresented to the OLR that no one had contacted him about the
lack of payment, despite the fact that the client and a third party had
contacted him about the problems, violating SCR 20:8.4(f) and SCR
22.03(6).
In a second matter, Jacobson represented a client in both criminal
court and family court regarding a failure to pay child support. In
March 2000, the client gave Jacobson $4,000. Jacobson disbursed the
entire amount to himself for fees, without notice to the client. The
client subsequently learned that the funds were no longer in trust and
requested an accounting, which Jacobson failed to provide, violating SCR
20:1.15(b), currently SCR 20:1.15(d)(1), and SCR 20:1.4(a). In addition,
Jacobson misrepresented to the OLR that he had sent the client a bill,
although in fact he had not prepared a bill until after the OLR's
investigation commenced, violating SCR 20:8.4(c).
In a third matter, Jacobson deposited a $3,500 fee advance into his
trust account on May 4, 2000. Before the deposit was made, the account
was overdrawn by approximately $500. Two days after depositing the
advance, Jacobson had a heart attack and consequently performed no
services for the client. Since he had not reimbursed the account for the
$500 overdraft or the related service charge before refunding the
client's $3,500 advance, Jacobson used funds belonging to his client to
cover the shortfall, violating SCR 20:1.15(a), currently SCR
20:1.15(b)(1).
In the fourth matter, Jacobson failed to pay $890 to a client's care
provider from the proceeds of a July 2000 personal injury settlement,
despite receiving several calls from the care provider. Instead,
Jacobson used a portion of the settlement proceeds to make the $3,500
refund noted in the third matter, violating SCR 20:8.4(c). While
Jacobson did issue a check to this provider, there were insufficient
funds in the trust account to cover the check, and there is no evidence
that the provider ever received or negotiated it. Further, Jacobson
never notified the provider of his receipt of the funds, violating SCR
20:1.15(b), currently SCR 20:1.15(d)(1). More than a year later, during
the OLR investigation, Jacobson paid the $890 to this provider.
In the fifth matter, Jacobson failed to notify a subrogated worker's
compensation carrier of his receipt of $20,000 to which the carrier was
entitled, and he did not pay the carrier for more than three months,
violating SCR 20:1.15(b), currently SCR 20:1.15(d)(1). In addition,
Jacobson failed to reconcile his trust account in the year preceding the
$20,000 payment, violating SCR 20:1.15(e), currently SCR
20:1.15(f)(1)g.
In the sixth matter, Jacobson failed to communicate the basis or rate
of his fee when he began representing a couple in 1996 regarding a
dispute with a home builder, violating SCR 20:1.5(b). He also failed to
provide the couple with a copy of a demand letter that he had
purportedly sent to the builder. When the clients subsequently made
repeated requests for an accounting of the $2,000 that they had paid
him, Jacobson never provided one, violating SCR 2:1.4(a).
The OLR originally recommended a two-year suspension, restitution,
and trust account supervision. The referee initially recommended an
18-month suspension with those conditions. The court subsequently
remanded the proceeding for submission of mitigating evidence regarding
Jacobson's physical and mental condition. After hearing testimony from
Jacobson's psychiatrist and other witnesses, the referee concluded that
most of the misconduct was causally connected with Jacobson's May 2000
heart attack and his diagnosed depression, and the referee reduced the
length of her recommended suspension to 90 days. Both parties
appealed.
The court agreed with the OLR that some of the misconduct, including
the conversion of more than $2,000, had occurred before the heart
attack, and the court found significant Jacobson's ability to serve some
of his clients free of misconduct during his medical difficulties. The
court nevertheless adopted the referee's conclusion that there was a
direct causal connection between Jacobson's depression and some of his
misconduct. Ultimately, the court determined that Jacobson's "serious
and persistent failure to comply with Rules" merited a suspension in
excess of the referee's amended recommendation, and it imposed a
five-month suspension.
Disciplinary Proceeding against Paul
Kasprowicz
On Dec. 21, 2004, the Wisconsin Supreme Court publicly reprimanded
Paul Kasprowicz, Waukesha, for having committed 16 counts of
professional misconduct involving six separate client matters, as
alleged in a complaint filed by the OLR. Disciplinary Proceedings
Against Kasprowicz, 2004 WI 151. Kasprowicz also was
ordered to pay the $5,760.16 costs of the proceeding.
A referee and the court found that Kasprowicz's misconduct included
four counts of neglect; three counts of failure to properly communicate
with his client; and one count each of incompetence, acting outside the
scope of the representation, failing to promptly turn over a client's
file to successor counsel, and charging a percentage fee in an estate in
violation of a state statute and case law. Further, Kasprowicz did not
timely cooperate with the OLR's investigation in five of the six
matters. The OLR had sought a 60-day suspension.
The referee found that the misconduct, while serious, was not
malicious or intentionally deceptive; that at least two of the counts
were based on Kasprowicz's apparent misunderstanding of the law; that
Kasprowicz's primary problem was in failing to act and then avoiding his
clients when questioned about that failure; that his conduct was not
intended to - and did not - provide him with any monetary gain or
benefit; and that his behavior was a result of the medical and emotional
problems he was experiencing over a two-year period, as borne out by
medical and other evidence received at the disciplinary hearing.
Disciplinary Proceeding against Joe E.
Kremkoski
On Dec. 21, 2004, the Wisconsin Supreme Court publicly reprimanded
Joe E. Kremkoski, Racine, for having committed five counts of
professional misconduct involving two separate client matters, as
alleged in a complaint filed by the OLR. Kremkoski also was ordered to
obtain continuing legal education credits focusing on ethics education
each year for the next three years and to pay the $4,116.33 costs of the
proceeding. Disciplinary Proceedings Against Kremkoski, 2004 WI
150.
A referee and the court found that Kremkoski's misconduct included
representing a client in the same or a substantially related matter in
which the person's interests were materially adverse to the interests of
a former client; failing to hold money in trust; failing, on termination
of representation, to refund an unearned advance fee payment; failing to
act with reasonable diligence and promptness in representing a client;
and failing to keep a client reasonably informed about the status of a
matter and comply with reasonable requests for information.
The referee recommended a private reprimand, concluding that it was
an appropriate disciplinary response to Kremkoski's misconduct, giving
recognition to Kremkoski's claim that he was under stress during the
time of his misconduct.
Although no appeal was filed, the supreme court imposed a public
reprimand, as originally recommended by the OLR. The court considered
Kremkoski's 1997 receipt of a private reprimand for neglect of a client
matter, the serious nature of Kremkoski's instant misconduct, and the
possibility of deterring Kremkoski and others from engaging in similar
misconduct in the future. The court emphasized that stress did not
explain Kremkoski's failure to appreciate the serious conflict of
interest he faced in representing a client in the same or a
substantially related matter in which the person's interests were
materially adverse to the interests of a former client.
Disciplinary Proceeding against Lynn
Morrissey
On Jan. 14, 2005, the Wisconsin Supreme Court suspended the law
license of Lynn Morrissey for 60 days for professional misconduct
arising from her handling of two client matters. Disciplinary
Proceedings Against Morrissey, 2005 WI 2.
In the first matter, Morrissey was retained to represent a client in
the sale of real estate in Washington County. The client's former wife
had previously been given a lien on the real estate by a Colorado
divorce order. In July 2001, Morrissey sent a draft satisfaction of lien
to the client's former wife and requested that she sign it. Morrissey
assured the client's former wife that the satisfaction would not be
recorded until the check had been sent. The client's former wife signed
the satisfaction and sent it to Morrissey, relying on the representation
that the satisfaction would not be filed until payment had been made.
Morrissey recorded the satisfaction and proceeded with the real estate
sale and closing without providing for payment to the client's former
wife. The proceeds were instead disbursed to Morrissey's client.
By representing to the client's former wife that the satisfaction of
lien would not be filed until payment of the lien amount was mailed, by
receiving and filing the satisfaction of lien prior to remitting
payment, and by failing to include or provide for payment of the lien
from the proceeds of the sale, Morrissey engaged in conduct involving
dishonesty, fraud, deceit, and misrepresentation, in violation of SCR
20:8.4(c).
In the second matter, Morrissey represented a client in a divorce. At
the final hearing the court directed Morrissey to file findings of fact,
conclusions of law, and a judgment. On July 15, 2003, a family court
commissioner clerk notified Morrissey that the findings were
insufficient and faxed Morrissey a list of provisions to include in the
findings. On Sept. 18, 2003, Morrissey was again faxed a list of
mandatory provisions to include in the findings. Morrissey failed to
submit the completed findings until Dec. 22, 2003, more than seven
months after the final divorce hearing, five months after the clerk had
first faxed her a list of the missing provisions, and only after the
guardian ad litem had written the court and the court had set three show
cause dates.
By failing to file acceptable findings of fact, conclusions of law,
and a judgment in the client's divorce with reasonable promptness,
Morrissey violated SCR 20:1.3.
Morrissey also willfully failed to respond to questions relating to
both grievances and was thus found to have violated SCR 22.03(2), SCR
22.03(6), and SCR 20:8.4(f).
Disciplinary Proceeding against Seth P.
Hartigan
On Jan. 19, 2005, the Wisconsin Supreme Court suspended the law
license of Seth P. Hartigan, formerly of Milwaukee, for six months, for
Hartigan's commission of six counts of professional misconduct involving
two separate client matters, as alleged in a complaint filed by the OLR.
Hartigan also was ordered to pay the $8,035.53 costs of the proceeding.
Disciplinary Proceedings Against Hartigan, 2005 WI 3.
A referee and the court found that Hartigan's misconduct included
engaging in conduct involving dishonesty, fraud, deceit, and
misrepresentation by accepting a laptop computer as payment for legal
fees and by retaining the laptop for his own personal benefit; falsely
informing the OLR during the course of its investigation that his
employer was aware he had accepted a laptop as payment for legal
services; and failing to take steps to the extent reasonably practicable
to protect his client's interests, by failing to inform or send a copy
of his motion to withdraw to his client. Hartigan's misconduct also
included engaging in conduct involving dishonesty, fraud, deceit, and
misrepresentation by representing to the court in his motion to withdraw
that his client failed to abide by the terms of the written fee
agreement when he knew this information to be false; failing to explain
a matter to his client to the extent reasonably necessary to permit the
client to make informed decisions regarding her representation in her
parole hearing and pro se cases; and failing to comply promptly with the
client's reasonable requests for information, by failing to return her
papers to her for more than two months despite multiple requests that he
do so.
The referee recommended a six-month suspension, emphasizing that
Hartigan breached his duties to many parties, including his law firm, a
colleague at his law firm, his client, tribunals before which he was
appearing, and the OLR. The referee stressed that Hartigan attempted
more than once to lie his way out of the troublesome situations; caused
harm to one of his clients, who was arrested and jailed probably by
reason of Hartigan's false statements to a court; caused harm to another
client, who was imprisoned and desperate for legal services; and made
intentionally false statements and submitted false and misleading
evidence to the OLR's investigators.
The supreme court imposed the recommended six-month suspension,
characterizing Hartigan's misconduct as "serious infractions of the
rules governing lawyers' professional behavior and
responsibilities."
Hearing to Reinstate Gerald M. Schwartz
On May 12, 2005, at 10 a.m., in Room 260-A, State Office Building,
819 N. Sixth Street, Milwaukee, a public hearing will be held before
Referee Kathleen Callan Brady on the petition of Gerald M. Schwartz,
Glendale, to reinstate his Wisconsin law license. Any interested person
may appear at the hearing and be heard in support of, or in opposition
to, the petition for reinstatement.
Schwartz's law license, which had been suspended in the mid-1980s for
90 days, was suspended again for 60 days in 1993 for misconduct
consisting of Schwartz's failure to keep his clients advised of
significant developments in a personal injury action, acting contrary to
his clients' explicit direction in seeking a settlement of their claim,
failure to timely conclude a settlement, and failure to promptly deliver
the clients' file to successor counsel. Disciplinary Proceedings
Against Schwartz, 174 Wis. 2d 312, 496 N.W.2d 605 (1993).
Without having been reinstated, Schwartz's law license was suspended
for 18 months in 1995 when Schwartz was found to have failed to pursue a
client matter with reasonable diligence and promptness, failed to
communicate with his clients regarding the matter, failed to provide an
accounting of his work and refund the unearned portion of his retainer,
and failed to take appropriate steps to protect the clients' interests
on terminating his representation. In another matter, Schwartz failed to
appear on his client's behalf in an action; failed to respond to letters
from opposing counsel; failed to notify his client, opposing counsel,
and the court of his administrative suspension from the practice of law
for failure to comply with continuing legal education requirements; and
failed to promptly withdraw from the client's representation. In
addition, Schwartz continued to practice law while suspended, failed to
respond to numerous inquiries from the Board of Attorneys Professional
Responsibility and the district committee investigating his conduct, and
made false statements of material fact in the course of that
investigation. Disciplinary Proceedings Against Schwartz, 193
Wis. 2d 157, 532 N.W.2d 450 (1995).
In the instant reinstatement proceeding, Schwartz must demonstrate by
clear, satisfactory, and convincing evidence that, among other things,
he has not practiced law or engaged in certain law-related activities
violative of SCR 22.26(2) during the suspension; his conduct since the
revocation has been exemplary and above reproach; he has a proper
understanding of and attitude toward the standards that are imposed on
members of the bar and will act in conformity with the standards; he can
safely be recommended to the legal profession, the courts, and the
public as a person fit to be consulted by others and to represent them
and otherwise act in matters of trust and confidence, and in general to
aid in the administration of justice as a member of the bar and as an
officer of the courts; he has fully described all of his business
activities during the suspension; and he has made restitution to or
settled all claims of persons injured or harmed by his misconduct or, if
not, has explained his failure or inability to do so.
Schwartz also must demonstrate by clear, satisfactory, and convincing
evidence that he has the moral character to practice law in Wisconsin
and that he has fully complied with the terms of the suspension and with
the requirements of SCR 22.26.
Relevant information may be provided to or obtained from OLR
Investigator Melody Rader-Johnson or OLR Litigation Counsel William J.
Weigel, 110 E. Main St., Suite 315, Madison, WI 53703; toll free (877)
315-6941.
Wisconsin Lawyer
