Wisconsin Lawyer
Vol. 81, No. 7, July 2008

Lawyer Discipline

• Disciplinary proceedings against Jennelle London Joset
• Disciplinary proceedings against Lilah J. Zajac
• Disciplinary proceedings against Steven D. Robinson
• Public reprimand of Edward J. Ritger

Disciplinary proceedings against Jennelle London Joset

The Wisconsin Supreme Court suspended the law license of Jennelle London Joset, 36, Milwaukee, for six months, effective May 16, 2008, and ordered her to pay the cost of the disciplinary proceedings. Disciplinary Proceedings Against Joset, 2008 WI 41.

Joset's misconduct related to three cases in which the State Public Defender (SPD) had appointed her to represent defendants in appellate postconviction matters. In the first case, Joset failed to visit the client or answer his correspondence. The client eventually asked Joset to send him the case file so that he could represent himself but Joset did not reply. An SPD staff member had to retrieve the case file from Joset. Joset failed to respond to multiple letters from an Office of Lawyer Regulation (OLR) district committee investigator. The court concluded that Joset failed to act with reasonable diligence, contrary to SCR 20:1.3; failed to respond to requests for information from the client, contrary to SCR 20:1.4(a); and failed to cooperate with the investigation, contrary to SCR 22.03(6).

In the second case, Joset represented a client at a postconviction hearing but then stopped communicating with him. After receiving complaints from the client, the court of appeals ordered Joset to prepare an order relating to the postconviction hearing and fined Joset when she failed to timely file that order. Joset also failed to timely prepare a no-merit report. After providing some information to the OLR, Joset stopped responding in the OLR's investigation. The court concluded that Joset violated SCR 20:1.3, 20:1.4(a), and 20:3.4(c), relating to violating court orders, and SCR 22.03(6).

In the third matter, Joset failed to inform a client of events throughout the representation, including that the court of appeals had denied an appeal, that Joset had filed a petition for review, and that the supreme court had denied the petition. The client learned of case developments by contacting court offices.

After the third client filed a grievance, Joset did not respond to the OLR. On Jan. 20, 2006, the court temporarily suspended Joset's law license for her failure to cooperate with the OLR.

In the disciplinary case, the court determined that Joset violated SCR 20:1.4(a), 22.03(2), and 22.03(6) regarding the third client's matter.

Joset had no prior discipline.

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Disciplinary proceedings against Lilah J. Zajac

On May 16, 2008, the supreme court suspended the law license of Lilah J. Zajac, Wauwatosa, for 60 days. Disciplinary Proceedings Against Zajac, 2008 WI 42. On May 19, 2008, the court amended the effective date of the suspension to June 6, 2008.

Zajac's suspension was based on eight counts of misconduct related to her representation of a client in two related estate probate matters.

Zajac violated SCR 20:1.3 by failing to: 1) adequately pursue whether the late filing of a claim against one of the estates could serve as a defense to the enforcement of that claim; 2) properly calendar and attend a May 11, 2004, order-to-show-cause hearing; and 3) request direction from the probate court or explain to the court difficulties Zajac was having in closing one of the estates.

Zajac violated former SCR 20:1.4(a) by failing to sufficiently and adequately communicate to her client information that would allow her client to make informed decisions in the following respects: 1) the necessity to close one of the estates within a certain time and the consequences for not doing so; 2) the consequences for not obtaining a title report regarding a house included in the estate assets; and 3) whether the date of a late-filed claim could serve as a defense to its enforcement against the estate.

Zajac violated SCR 20:1.8(a) and (e) by paying from her personal funds a claim filed against one of the estates, thereby loaning funds to her client or the estate, because: 1) the transaction and terms on which Zajac acted were not fully disclosed and transmitted in writing to the client in a manner that the client could reasonably understand; 2) the client was not given a reasonable opportunity to seek the advice of independent counsel in the transaction; and 3) the client did not consent in writing.

Zajac violated SCR 20:1.16(d) by failing to promptly advise her client that she had decided not to file a motion seeking to reinstate the client as personal representative of one of the estates, when Zajac had previously advised the client that she would file such a motion, and she was aware that the client was relying on her to immediately file such a motion.

Zajac violated SCR 20:8.4(c) by converting $344 paid by the client toward Zajac's firm's legal fees and by representing to the client, her sister, successor counsel, and the probate court that a claim filed against one of the estates had been paid in February or March 2004, when it had not.

Zajac violated SCR 22.03(6) by: 1) advising the OLR that she had mailed a specified check and correspondence to a creditor of the estate; 2) advising the OLR that on or about April 14, 2004, she had advised her client of the May 11, 2004 hearing; and 3) providing the OLR with a photocopy of a handwritten note purporting to have been created on or about April 14, 2004, to document a contemporaneous telephone call to her client, although the note was created after the issuance of the court's May 13, 2004 order.

Zajac also violated SCR 22.03(2) and (6) by failing to cooperate with the OLR's investigation of this matter.

Zajac had no prior discipline.

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Disciplinary proceedings against Steven D. Robinson

On May 29, 2008, the supreme court publicly reprimanded Steven D. Robinson, Wausau, and ordered him to pay the cost of the disciplinary proceeding. Disciplinary Proceedings Against Robinson, 2008 WI 49.

In March 2001, Robinson was appointed by the SPD to represent a client in postconviction proceedings. Between his appointment in 2001 and the appointment of successor counsel in December 2005, Robinson failed to advance any postconviction motions on behalf of his client, file an appeal, or close out the case with a no-merit report or other form of proper notice. Robinson therefore violated SCR 20:1.3, which requires an attorney to represent a client with reasonable diligence and promptness. Robinson also failed for more than a year to initially contact the client and thereafter failed to communicate regularly with the client concerning the status of his case and failed to respond to client requests for information, thus violating former SCR 20:1.4(a).

In 2004, Robinson had received a private reprimand for failing to act with reasonable diligence and for failing to keep a client reasonably informed about the status of a matter and to promptly comply with reasonable requests for information.

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Public reprimand of Edward J. Ritger

The OLR and Edward J. Ritger, Random Lake, agreed to the imposition of a public reprimand pursuant to SCR 22.09(1). A referee appointed by the supreme court thereafter approved the agreement and issued the public reprimand on May 6, 2008, in accordance with SCR 22.09(3).

Ritger was hired to probate the estate of a woman who died in an automobile accident (the deceased); another woman ran a stop sign in her vehicle and hit the deceased's car. The other woman also died in the accident. The deceased had two young adult children, a son and a daughter. Their father, who was recently divorced from the deceased, and the son were named as copersonal representatives for the deceased's estate.

The other woman's automobile insurance policy (first insurer) had a $150,000 policy limit. The deceased had underinsured motorist (UIM) benefits up to $300,000 with a different insurance company. It was believed that additional amounts, up to the statutory limit, could be collected from the other woman's estate.

The family initially attempted to negotiate with the insurance companies themselves and thought they could handle the wrongful death matter on their own. Subsequently, Ritger agreed to represent the family with respect to their claims against the other woman's estate and with respect to the disposition of the insurance proceeds.

The first insurer's attorney sent Ritger a letter stating that his client was willing to pay its policy limit of $150,000 but would first require a release from the deceased's estate and all four of her natural children, including two estranged sons. This letter stated that it would be appropriate for Ritger to notify the UIM carrier that the first insurer had offered its policy limit so the UIM carrier could preserve any subrogation claim it might have. Despite this advice, Ritger did not send the UIM carrier a letter notifying it that the first insurer had offered its policy limits. Based on the family's prior contacts with the UIM carrier's claims adjuster, Ritger believed the UIM carrier would pay the underinsured motorist benefits as soon as the first insurer paid its policy limits.

The first insurer's attorney sent Ritger a general release for all the parties to sign. Ritger said he did not attempt to distinguish the kind of release provided by the first insurer because he "believed that both [the first insurer] and [the UIM carrier] knew the [family's] intention of pursuing the full statutory amount."

Ritger obtained all the required signatures on the first insurer's general release and returned the signed release to the first insurer's attorney. Ritger received the first insurer's check for $150,000 and placed it in his trust account. Subsequently, the UIM claims adjuster informed Ritger that the UIM carrier had lost its subrogation rights because of the executed general release and said that Ritger had failed to provide the UIM carrier with notice of the first insurer's offer before accepting it, in violation of the UIM carrier's policy requirements and established case law.

Ritger admitted that, at the time, he was unfamiliar with the procedure for giving notice of settlement as prescribed in the case law. The first insurer did not accept Ritger's attempt to return the $150,000 in exchange for a return of the release.

In November 2003, Ritger filed a wrongful death lawsuit on behalf of the son, the daughter, and the estate against the two insurance companies and the other woman's estate, asking in part for reformation of the release and for damages for negligence and wrongful death. Ritger notified his malpractice insurance carrier of the lawsuit in March 2004, and the malpractice carrier hired an attorney to represent its and Ritger's interests in the wrongful death matter.

In May 2004, another attorney agreed to enter the wrongful death case as Ritger's cocounsel. Ritger remained cocounsel in the wrongful death lawsuit until he was granted permission by the court to withdraw in November 2004. The family did not sign a written consent to Ritger's continued representation. When Ritger withdrew, cocounsel was substituted as successor counsel of record.

Although Ritger remained as cocounsel in the wrongful death lawsuit until November 2004, successor counsel stated that, after he was hired in May 2004, his firm assumed exclusive responsibility for the case and Ritger was only nominally involved. Nevertheless, Ritger was kept up-to-date on the status of the wrongful death lawsuit by successor counsel, and Ritger also had several direct contacts with the family pertaining to the lawsuit.

Even though the deceased's estate and its personal representatives, the son and his father, were plaintiffs in the wrongful death lawsuit, Ritger continued to represent the deceased's estate.

Successor counsel said he recommended to the family that Ritger, represented by his malpractice carrier's attorney, be involved in mediation for the wrongful death lawsuit, even though Ritger was not a party to the lawsuit. Successor counsel said he explained to the family that Ritger would be present at the mediation as an adverse party. Additionally, successor counsel said he explained to the family that he represented the estate only for purposes of the insurance litigation and at mediation, and that Ritger represented the estate in all other matters.

The wrongful death case settled at mediation in April 2005, with Ritger and his malpractice carrier contributing to the settlement. The settlement released Ritger from any potential malpractice claims and further stated that, although Ritger waived his fees for the wrongful death matter, he was entitled to his fees for his work on the deceased's estate.

By having his clients sign the first insurer's general release, which released all parties from further liability, without attempting to distinguish the kind of release provided by the first insurer; by failing to familiarize himself with the UIM carrier's policy requirements regarding notice, or with the procedure, as set forth in case law, for giving notice of settlement offers to additional insurers; by failing to heed the first insurer's attorney's advice to give notice to the UIM carrier that the first insurer had offered its policy limit; and by submitting the executed general release to the first insurer, Ritger failed to provide competent representation, in violation of SCR 20:1.1.

By remaining as cocounsel in his clients' wrongful death lawsuit for several months after he became aware that he had a conflict of interest because of the potential for a malpractice claim against him by his clients, Ritger violated former SCR 20:1.7(b), effective before July 1, 2007, and SCR 20:1.16(a)(1).

Ritger also violated former SCR 20:1.7(b) and 20:1.16(a)(1) by continuing to represent the deceased's estate after he became aware that he had a conflict of interest with the estate, its heirs, and its personal representatives because they were the plaintiffs in the wrongful death lawsuit and, particularly, by failing to withdraw as counsel for the deceased's estate when he was an adverse party at mediation for the lawsuit, at which mediation he negotiated a settlement of the wrongful death lawsuit that relieved him of any potential malpractice claims by the plaintiffs and secured him the right to collect his attorney fees for representing the estate.

Ritger has prior discipline. Ritger received a private reprimand in 1996 for violations of SCR 20:1.3 and 20:1.4(a) and two former rules governing cooperation in an investigation. In 2003, Ritger was privately reprimanded for communicating directly with a represented party, contrary to SCR 20:4.2. In 2005, Ritger received a public reprimand for violations of former SCR 20:1.7(a) and former 20:1.4(a), both effective before July 1, 2007, and SCR 20:1.3. In that matter, Ritger represented an estate and its copersonal representatives at the same time that he represented one of the copersonal representatives personally as a claimant against the estate. Ritger also failed to keep the other copersonal representative informed about the status and progress of the estate proceedings and failed to advance the interests of the estate for more than two years.

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