Wisconsin
Lawyer
Vol. 81, No. 10, October
2008
Lawyer Discipline
The Office of Lawyer Regulation
(OLR), 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 lawyers. The OLR has offices at
110 E. Main St., Suite 315, Madison, WI 53703; toll-free (877) 315-6941.
The full text of items summarized in this column can be viewed at
www.wicourts.gov/olr.
Disciplinary proceeding against Michael
Swensen
On July 31, 2008, the Wisconsin Supreme Court revoked the Wisconsin
law license of
Michael F. Swensen, Delano, Minn., as discipline reciprocal to an order
by the Minnesota
Supreme Court on Nov. 15, 2007, disbarring Swensen's license to practice
law in
Minnesota. Swensen also failed to notify the Wisconsin Office of Lawyer
Regulation (OLR) of
his Minnesota suspension within 20 days of that suspension, contrary to
SCR 22.22(1).
Disciplinary Proceedings Against Swensen, 2008 WI 113.
The Minnesota suspension arose out of Swensen's violation of
Minnesota Rules of
Professional Conduct and resulted from conduct that included the
conversion of rental
payments and sale proceeds due to a client; inducing a client to
transfer the client's
property interests to Swensen's spouse; making false statements to a
client and a third
party; falsely drafting, notarizing, and signing documents; and engaging
in business
transactions with a client on unreasonable and undisclosed terms without
advising the
client in writing to seek independent counsel and without obtaining the
client's written
consent to the transactions.
Swensen had no prior discipline in Wisconsin.
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Disciplinary proceeding against Eric L.
Crandall
On July 31, 2008, the Wisconsin Supreme Court suspended the Wisconsin
law license of
Eric L. Crandall, New Richmond, for 30 days, effective Sept. 2, 2008, as
discipline
reciprocal to a Dec. 10, 2007, order of the Minnesota Supreme Court,
suspending Crandall's
Minnesota law license for 30 days. Crandall also failed to timely notify
Wisconsin's OLR of
his Minnesota suspension, contrary to SCR 22.22(1).
Disciplinary Proceedings Against Crandall, 2008 WI 112.
The Minnesota suspension resulted from Crandall's failure to act
with diligence
and promptness in representing a client, failing to communicate with
clients, engaging
in dishonesty or misrepresentation, and failing to cooperate with the
Minnesota
disciplinary investigation.
In 2006, Crandall's Wisconsin law license was suspended for
three months reciprocal
to discipline imposed in Minnesota, and in 2008 the Wisconsin Supreme
Court publicly
reprimanded Crandall.
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Public reprimand of Jeffrey C. Mochalski
The OLR and Jeffrey C. Mochalski, La Crosse, entered into an
agreement for 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 Aug. 1, 2008,
in accordance with SCR 22.09(3). The public reprimand stemmed from a
single matter
investigated by the OLR.
In March 2004, an individual hired Mochalski to represent him in
a potential
medical malpractice case. The client had suffered a foot injury, but the
radiologists who
reviewed the x-rays purportedly misdiagnosed the injury on two separate
occasions.
Months passed before the client was properly diagnosed and underwent
surgery. Because of
the age of the injury, the surgery was more extensive than a normal
procedure would
have been, and the client's gait was permanently altered. The negligence
claim originated
in April 2003, and the radiologists' group practice had sought
previously to settle with
the client, who in turn hired Mochalski to advise him regarding a
potential settlement.
From March 2004 until February 2006, Mochalski worked on the
case, primarily
focusing on issues associated with damages, including impairment and
future medical
expenses. While he focused on damage issues, Mochalski insufficiently
explored settlement
options, undertook no discovery, and ultimately failed to advance the
client's interests for
more than two years. Thereafter, Mochalski suffered personal and
financial problems, and
he failed to file a malpractice lawsuit before the statute of limitation
expired or to
otherwise protect his client's interests. In October 2006, Mochalski
wrote to the client
and admitted that he had failed to file a lawsuit on the client's behalf
within the
applicable statute of limitation and had not protected his interests. In
failing to
prosecute the client's cause of action from March 2004 until October
2006 and otherwise failing
to take sufficient steps to advance and protect the client's interests,
resulting in
the loss of a negligence claim, the loss of a potential settlement, and
other harm to
the client's interests, Mochalski violated SCR 20:1.3, which states,
"A lawyer shall act
with reasonable diligence and promptness in representing a client."
During the time that he represented the client, from March 2004
until October
2006, Mochalski communicated with the client infrequently. He spoke with
the client by
telephone in April 2004 and wrote to the client on two occasions, in
October 2005 and
February 2006. The last time Mochalski communicated with the client was
in October 2006
when he informed the client that he had failed to file a lawsuit in a
timely fashion or
otherwise protect the client's interests. Mochalski failed to respond to
repeated attempts
to discuss the progress of the case. By failing to communicate with the
client
regarding the case for extended periods and failing to respond to
repeated requests for
information, Mochalski violated former SCR 20:1.4(a) (effective before
July 1, 2007),
which stated, "A lawyer shall keep a client reasonably informed
about the status of a
matter and promptly comply with reasonable requests for
information."
In October 2006, when Mochalski informed the client that he had
failed to file a
lawsuit on his behalf, Mochalski also told the client that he had filed
for voluntary
Chapter 7 bankruptcy. Mochalski failed to disclose to the client that
Mochalski had
listed the client as an unsecured creditor on Mochalski's bankruptcy
schedules with a
potential unsecured claim of $30,000, the value of the client's
potential claim against
Mochalski for failing to appropriately handle his malpractice claim.
Moreover, Mochalski failed
to advise the client of the consequences associated with the bankruptcy
filing, nor
did Mochalski advise the client that he had taken action during his
representation that
was potentially adverse to the client's interests and that this action
had been taken
without the client's consent. By filing, without prior notice to the
client and without the
client's consent, a bankruptcy petition that identified the client as an
unsecured
creditor having a potential unsecured claim of $30,000 against Mochalski
for failing to
appropriately handle his medical malpractice claim, Mochalski violated
former SCR 20:1.7(b)
(effective before July 1, 2007), which stated, in relevant part, "A
lawyer shall not
represent a client if the representation of that client may be
materially limited … by
the lawyer's own interests, unless … 1) the lawyer reasonably
believes the
representation will not be adversely affected; and 2) the client
consents in writing after
consultation…."
Mochalski has no prior discipline.
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Public reprimand of Roger G. Merry
The OLR and Roger G. Merry, Monroe, entered into an agreement for
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
Aug. 12, 2008, in
accordance with SCR 22.09(3).
Merry represented the husband as the petitioner in a divorce.
Merry went to the
wife's place of work to personally serve the divorce petition. On
learning that the wife was
not present, Merry gave the divorce petition to one of the wife's
coworkers and asked
that person to give the divorce papers to the wife, which was done. The
applicable statute
did not allow for service in this manner. Merry later filed in circuit
court an affidavit
of service in which he stated that he had "personally hand
served" the divorce petition
on the wife, which was not true. Merry thereby made a false statement of
fact to a
tribunal, contrary to SCR 20:3.3(a)(1); offered evidence that he knew to
be false, contrary to
SCR 20:3.3(a)(3); and engaged in conduct involving dishonesty, fraud,
deceit, or
misrepresentation, contrary to SCR 20:8.4(c).
Merry had previously received two private reprimands and two
public reprimands
for unrelated misconduct.
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Reinstatement of John F.
Scanlan
On Aug. 19, 2008, the supreme court reinstated the law license of
John F. Scanlan,
with conditions. Disciplinary Proceedings Against
Scanlan, 2008 WI 116.
Scanlan's Wisconsin law license had been suspended for six
months, effective June
7, 2006, as a result of misconduct that occurred during 2000 and 2002
with respect to
nine client matters. By 2006, Scanlan was practicing law in Illinois,
and he continued to
do so until reciprocal discipline was imposed in that state.
Reinstatement of
Scanlan's Wisconsin license is required for Scanlan to be reinstated in
Illinois, where he
intends to practice.
Scanlan's reinstatement was conditioned on the Wisconsin Supreme
Court's receipt of
a supplemental report from a treating psychiatrist or psychologist
offering the
opinion that it is safe and appropriate for Scanlan to resume the
practice of law and
delineating the counseling, treatment, and medications that the treating
health professional
believes are reasonably necessary for Scanlan to continue the practice
of law. On Aug. 27,
2008, the court found that Scanlan had satisfied this condition, and the
court reinstated
his license. Scanlan's trust account practices and medications will be
monitored quarterly
by the OLR for one year.
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Hearing to reinstate Gary R. George
On Monday, Dec. 8 at 9 a.m., a public hearing will be held before
referee James
Winiarski in a hearing room at the Milwaukee State Office Building, 819
N. 6th Street,
Milwaukee, on the petition of Gary R. George, Grafton, 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.
In Disciplinary Proceedings Against
George, 2008 WI 21, 746 N.W.2d 236, the
Wisconsin Supreme Court suspended George's Wisconsin law license for
four years and three
months, retroactive to April 1, 2004, the effective date of a previous
summary suspension
ordered by the court, based on George's entering a guilty plea to
conspiracy to
commit offenses involving federal program funds. The court found that
because at the time
of his misconduct George was acting not only as an attorney but also as
an elected
official, the misconduct "not only involved dishonesty, it violated
the public's trust
and served to undermine the public's confidence in its elected
officials."
To be reinstated, George must substantiate by clear,
satisfactory, and convincing
evidence that he has the moral character to practice law in Wisconsin;
his resumption
of the practice of law will not be detrimental to the administration of
justice or
subversive of the public interest; all of his representations in his
reinstatement
petition are substantiated; and he has complied fully with the terms of
the order of
suspension or revocation and with SCR 22.26.
Relevant information may be provided to or obtained from OLR
investigator
Sarah Peterson, 110 E. Main St., Suite 315, Madison, WI 53703, toll-free
(877) 315-6941;
or retained counsel Thomas J. Basting, P.O. Box 1766, Madison, WI
53701-1766.
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