Vol. 76, No. 5, May
2003
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.
Public reprimand of J.E.
Nugent
The Office of Lawyer Regulation (OLR) and J.E. Nugent, 62, Waupun,
entered into an agreement for imposition of a public reprimand pursuant
to SCR 22.09(1). A referee appointed by the Wisconsin Supreme Court
thereafter approved the agreement and issued the public reprimand in
accordance with SCR 22.09(3). The reprimand is based upon Nugent's
representation of a client in a civil matter.
In July 1999, a client retained Nugent to file a claim for breach of
warranty against the manufacturer and seller of the client's modular
home. For approximately one year, Nugent attempted to negotiate a
settlement, but he was unable to reach an agreement. The client stated
that, in October 2000, Nugent provided him with an unsigned summons and
complaint and told him that Nugent had filed the lawsuit. The client
subsequently left numerous messages for Nugent inquiring about the
status of his case, but Nugent failed to return his calls. Nugent stated
that, on Feb. 28, 2001, he mailed a summons and complaint to the court
for filing. The court, however, has no record of receiving Nugent's
correspondence. On April 24, 2001, the client discharged Nugent after he
had visited the courthouse and learned that Nugent had never filed his
lawsuit.
The client subsequently filed a grievance with the OLR. On May 10,
2001, Nugent advised an OLR investigator that he had filed the client's
lawsuit. The investigator requested that Nugent forward to her an
authenticated copy of the summons and complaint. Nugent then filed the
client's lawsuit on May 18, 2001, without informing the client. On May
30, 2001 and June 11, 2001, the OLR investigator again requested from
Nugent an authenticated copy of the client's summons and complaint. In
response to the OLR's requests, on June 12, 2001, Nugent faxed to the
OLR correspondence on his letterhead, dated Feb. 28, 2001, addressed to
the clerk of courts. The letter requested that the clerk file the
client's summons and complaint. Nugent also faxed an unsigned copy of
the summons and complaint. Nugent, however, did not provide the OLR with
any documentation disclosing that he had actually filed the lawsuit on
May 18, 2001.
On June 13, 2001 and June 20, 2001, the OLR investigator telephoned
Nugent and advised him that she had searched the Circuit Court
Automation Program and that she had found in the client's name only one
lawsuit, filed on May 18, 2001. She requested that Nugent submit
documentation that the case had been filed in February 2001, either an
authenticated copy of the summons and complaint or a copy of the
cancelled check paid for the filing fee. Nugent responded that he would
try to obtain a copy of the check. At the time, however, Nugent knew
that there was no evidence that existed to prove that he had filed the
client's action before May 18, 2001. On July 3, 2001, Nugent
acknowledged to the OLR that he had not filed the client's lawsuit until
May 18, 2001.
By failing to file the client's lawsuit from October 2000 until May
2001, Nugent failed to act with reasonable diligence and promptness in
representing a client, in violation of SCR 20:1.3. By failing to respond
to the client's telephone calls and by failing to advise the client that
he had filed the client's lawsuit in May 2001, Nugent failed to keep the
client reasonably informed about the status of a matter and failed to
comply with reasonable requests for information, in violation of SCR
20:1.4(a). By filing the client's lawsuit after the client had
discharged him, Nugent failed to withdraw from the representation, in
violation of SCR 20:1.16(a)(3). By initially informing OLR staff that he
had filed the client's lawsuit in February 2001, and then continuing to
misrepresent to OLR staff the date that he had filed the lawsuit, Nugent
made misrepresentations to OLR staff in the course of its investigation,
in violation of SCR 22.03(6).
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Public reprimand of David G.
Merriam
The OLR and David G. Merriam, 61, Madison, entered into an agreement
for imposition of a public reprimand, pursuant to SCR 22.09(1). A
referee appointed by the Wisconsin Supreme Court thereafter approved the
agreement, and issued the public reprimand on Feb. 17, 2003, in
accordance with SCR 22.09(3).
Merriam was the subject of an OLR grievance investigation, and failed
to respond to OLR's initial and second requests for a response to the
grievance, necessitating personal service. Merriam eventually filed the
required written response and did cooperate with a district committee
investigation. No misconduct was found with regard to the underlying
allegations, but Merriam's failure to timely file a written response
violated SCR 22.03(2).
Discipline at the public reprimand level was imposed because Merriam
had two prior private reprimands and one prior public reprimand for
misconduct that included, in each instance, a failure to cooperate with
the grievance investigation.
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Public reprimand of Bartley G.
Mauch
The OLR and Bartley G. Mauch, 60, Prairie du Sac, 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 March 3, 2003, in
accordance with SCR 22.09(3).
In early 2001, Mauch agreed to review child support numbers on behalf
of a client, for the purpose of determining whether an arrearage
calculation was accurate. Several months later, the client contacted
Mauch by letter and in person, and asked if Mauch had reviewed the file.
Mauch admitted he had not. Mauch's neglect of the file violated SCR
20:1.3, which requires a lawyer to act with reasonable diligence and
promptness in representing a client. Mauch subsequently reviewed the
file and determined the arrearage calculation to be accurate, but he did
not communicate his determination to the client, contrary to SCR
20:1.4(a), which requires a lawyer to keep a client reasonably informed
about the status of a matter and to promptly comply with reasonable
requests for information.
Mauch failed to respond to three written notices from the OLR, the
last of which was personally served, requiring Mauch's response to the
client's grievance, which led to Mauch's June 21, 2002, temporary
license suspension for willful noncooperation. Mauch then responded
through counsel, and his license was reinstated on June 26, 2002.
Mauch's initial failure to cooperate in the grievance investigation
violated SCR 21.15(4) and 22.03(6). Mauch was publicly reprimanded by
the Wisconsin Supreme Court in 1994 for similar conduct.
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Public reprimand of Lynn M.
Bureta
The OLR and Lynn M. Bureta, 52, Kenosha, entered into an agreement
for imposition of a public reprimand pursuant to SCR 22.09(1). A referee
appointed by the Wisconsin Supreme Court thereafter approved the
agreement and issued the public reprimand in accordance with SCR
22.09(3). The reprimand is based upon Bureta's representation of two
clients.
In the first matter, Bureta was appointed in September 1999 to
represent a client on appeal of his conviction for aggravated battery,
battery by a prisoner, and threats to injure. Despite the client's
letters requesting a meeting or a telephone call, Bureta never spoke
with the client during the entire representation. In November 1999,
Bureta wrote to the client to advise him that she considered improper
venue to be the only appealable issue. In response, the client wrote to
Bureta advising her that he believed that there was more than one issue
to appeal. Bureta, however, did not respond to the client's
correspondence or his two subsequent letters.
Bureta filed a notice of appeal in January 2000. While she sent a
copy of the notice to the client, she did not send a cover letter with
the notice explaining the issues that she intended to raise. In April
2000, Bureta filed an appellant's brief in which she raised two issues -
a venue claim and a multiplicity claim. She, however, neither
communicated with the client before filing the brief nor sent him a copy
of the brief. The client only learned that a brief had been filed in May
2000, when he received a copy of a court order granting the state's
motion for an extension of time to file a response brief. The client
then wrote to the court, and the court issued an order reminding Bureta
that communication and consultation with the client were basic to
effective legal representation.
In July 2000, upon learning that the client had filed a grievance
with the OLR, Bureta filed a motion to withdraw. On Aug. 8, 2000, the
court ordered the State Public Defender to respond as to whether it
would appoint new counsel. Subsequently, on Aug. 24, 2000, without prior
notice to the client, Bureta filed a motion to withdraw the appellant's
brief and to substitute a no merit report as a means to withdraw as
counsel. On Sept. 8, 2000, the court issued an order appointing new
counsel and deemed Bureta's no merit report as withdrawn. The court
wrote, "this court is disturbed by Attorney Bureta's decision to file a
brief and then, four months later, seek to withdraw it in favor of a no
merit report, particularly where the state deemed the issues
sufficiently arguable to file a 27-page respondent's brief."
The client's successor counsel subsequently filed a postconviction
motion with the trial court to modify the client's judgment of
conviction by striking a provision that the client could not have
contact with his immediate family while on parole. The trial court
granted the client's motion. Bureta never considered filing the motion
and never advised the client that the trial court had lacked the
authority to impose the no contact order. Further, the client's second
attorney filed an appeal with the Wisconsin Court of Appeals raising the
same multiplicity issue that Bureta had raised in her appellate brief
before she had attempted to withdraw it. In April 2002, the court of
appeals determined that the charges against the client were
multiplicitous, and remanded the issue to the trial court for further
proceedings.
By withdrawing the client's appellate brief and thereby not pursing
meritorious appellate issues and by failing to file a postconviction
motion to modify the client's judgment of conviction, Bureta failed to
provide competent representation, in violation of SCR 20:1.1. By failing
to confer with the client about his appeal, Bureta failed to consult
with him as to the means by which they were to pursue the objectives of
the representation, in violation of SCR 20:1.2(a). By failing to speak
with the client, by failing to respond to some of the client's
correspondence, and by failing to advise the client of the pleadings
that she had filed on his behalf, Bureta failed to keep the client
reasonably informed about the status of a matter and promptly comply
with reasonable requests for information, in violation of SCR
20:1.4(a).
In a second matter, Bureta was appointed to represent another client
on appeal of his criminal conviction in November 2000. Bureta states
that she wrote to the client in December 2000, but that she did not
receive a response. On Feb. 1, 2001, the final transcript was produced
and filed in the client's matter. Pursuant to state statute, a defendant
is required to either file a notice of appeal or motion seeking
postconviction relief within 60 days of the service of the transcript or
a no merit brief and notice of appeal within 180 days of the service of
the transcript. Bureta did not attempt to communicate with the client
again until April 1, 2002, approximately 14 months after she had
received the final transcript. The client promptly replied to Bureta's
April letter and indicated that he had never received her first letter.
On April 18, 2002, Bureta filed a motion to extend the deadline to file
a postconviction motion or a notice of appeal. In her motion, Bureta
indicated that, after she had not received a response from the client to
her initial letter of December 2000, she took no further action until
she had written to him again in April 2002.
In an order granting an extension, the court expressed its concern
over "the extensive delay" caused by Bureta's failure to follow up with
her first letter. Bureta subsequently met the client, who decided not to
pursue an appeal. By failing to take any action on the client's matter
from February 2001 until April 2002, Bureta failed to act with
reasonable diligence and promptness, in violation of SCR 20:1.3.
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Suspension of William F.
Mross
The OLR and William F. Mross, 55, Racine, entered into a stipulation
for imposition of a 90-day suspension pursuant to SCR 22.12(1). The
Wisconsin Supreme Court approved the stipulation and ordered the 90-day
suspension of Mross's license commencing April 1, 2003.
On Dec. 5, 2001, Mross was visiting a client who was an inmate at the
Racine County Jail. Another inmate reported to a sheriff that Mross had
passed cigarettes under the table to
his client. Upon questioning, Mross produced a bag containing several
packs of cigarettes.
On Dec. 22, 2001, the sheriff's department recovered cigarettes Mross
had given to another inmate, whose sister had paid Mross $20 to deliver
the cigarettes. Mross was aware that cigarettes were prohibited by
Racine County Jail rules and knew that he was engaging in illegal
conduct by delivering cigarettes to inmates.
On Jan. 4, 2002, a complaint was filed in Racine County Circuit
Court, charging Mross with two counts of delivering articles to an
inmate in violation of Wis. Stat. section 302.095(2) (1999-2000). On
April 18, 2002, Mross accepted a deferred prosecution agreement whereby
the complaint was dismissed without prejudice. In exchange, Mross
admitted to the allegations, entered a plea to interference of a Racine
County ordinance, and agreed to a forfeiture of $500. Under the terms of
the agreement, Mross also agreed to refrain from the practice of
criminal law for four years and relinquished his certification with the
State Public Defender's Office.
On Nov. 14, 2002, the OLR filed a complaint against Mross, which
charged: "By delivering cigarettes to inmates at the Racine County Jail
in violation of Sec. 302.095(2), Wis. Stats., Respondent committed a
criminal act that reflects adversely on his honesty, trustworthiness,
and fitness as a lawyer in violation of SCR 20:8.4(b)."
On Dec. 5, 2002, the OLR and Mross entered a stipulation pursuant to
SCR 22.12. In addition to stipulating to the facts as set forth above,
the parties stipulated to discipline in the form of a 90-day suspension
of Mross's law license.
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Suspension of Dan A.
Riegleman
Dan A. Riegleman represented a client who had been injured in a motor
vehicle accident arising out of his employment. Riegleman filed a
worker's compensation claim against the client's employer and the
employer's insurer, Continental Western Insurance Corp. (Continental).
In April 1997, Continental paid to the client a total of $26,659.64 in
benefits and legal expenses related to the worker's compensation
claim.
Riegleman also filed, on behalf of the client, a third party action
against the driver of the other vehicle that had been involved in the
accident and his insurer, Allstate Insurance Co. (Allstate), in Butler
County, Missouri. In February 1998, an attorney for Continental wrote to
Riegleman to inform him that Continental had a lien in the amount of
$26,650.64 on any proceeds obtained through the personal injury
action.
Subsequently, Allstate agreed to settle the claim for $12,000 plus
court-approved costs. On Nov. 10, 1998, Allstate sent Riegleman a check
for $12,000, payable to the client, Riegleman, and Continental, along
with a release and stipulation for dismissal of the Missouri action.
That same day Riegleman wrote to Continental's counsel, stating that a
settlement had been reached in the personal injury action. He set forth
proposed calculations for distribution of the $12,000 settlement.
When Riegleman did receive in the mail the check from Allstate, he
did not advise Continental that he had obtained the funds. After
Riegleman filed the statement of costs in the Missouri personal injury
action, Allstate agreed to pay an additional $922.50 for costs, and on
Jan. 4, 1999, the circuit court in Butler County, Missouri, approved the
settlement.
On Jan. 15, 1999, Riegleman endorsed the name of Continental followed
by his initials on the settlement check, and deposited the funds into
his trust account without the prior consent or knowledge of Continental
or its counsel. Subsequently, Riegleman issued a check from his trust
account to his client in the amount of $5,000.35 and a check to himself
in the amount of $4,790.35, and left a balance of $2,209.30 in the trust
account. Riegleman issued these checks without notifying Continental's
counsel. On April 6, 1999, after making no efforts to communicate with
Continental's counsel, Riegleman issued the remaining amount of the
settlement, $2,209.30, to his client without ever notifying
Continental's counsel that he had received the settlement funds and
without providing Continental with an accounting of the funds.
Eventually, Continental learned of the settlement. The ensuing
negotiations to resolve the dispute concerning the proper amount of
Continental's lien claim took more than nine months. In September 2000,
Riegleman voluntarily agreed to pay Continental $2,500.
On Feb. 14, 2002, the OLR filed a complaint against Riegleman. The
complaint alleged that, by endorsing Continental's name on the
settlement check from Allstate without the consent of Continental or its
counsel, Riegleman engaged in conduct that involved dishonesty, fraud,
deceit, or misrepresentation in violation of SCR 20:8.4(c). In addition,
by failing to promptly notify Continental, in writing, of funds in which
Continental had an interest, Riegleman violated SCR 20:1.15(b). Finally,
by failing to treat disputed property of which he was in possession and
in which he and Continental both claimed an interest as trust property
until there was an accounting and severance of the interests and the
dispute was resolved, Riegleman violated SCR 20:1.15(d).
On or about Aug. 26, 2002, the OLR and Riegleman stipulated to the
facts as set forth above and to discipline in the form of a 60-day
suspension. On Feb. 25, 2003, the supreme court approved the stipulation
and ordered the 60-day suspension of Riegleman's license to commence on
April 1, 2003. Riegleman's prior discipline consists of a private
reprimand from 1995.
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Disciplinary proceeding against Bruce
A. Bode
The Wisconsin Supreme Court suspended the law license of Bruce A.
Bode, Batavia, Ill., for one year, effective Feb. 21, 2003, as
discipline reciprocal to that imposed upon Bode by the Illinois Supreme
Court in 2001.
The one-year suspension of Bode's Illinois law license resulted from
his misconduct in 10 separate client matters, consisting generally of a
pattern of failing to communicate with clients concerning the status of
their cases, failing to timely complete legal matters, and failing to
respond to inquiries from the administrator of the Illinois Attorney
Registration and Disciplinary Commission.
The OLR's filing of a disciplinary complaint seeking reciprocal
discipline resulted in the Wisconsin Supreme Court's order that Bode
show cause why identical discipline should not be imposed. Bode's
failure to respond resulted in Wisconsin's suspension order.
In addition to the disciplinary suspension, Bode's Wisconsin law
license remains suspended for his failure to pay dues and for
noncompliance with CLE requirements.
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Disciplinary proceeding against James
G. Wiard
The Wisconsin Supreme Court suspended the law license of James G.
Wiard, Wheaton, Ill., for two years, effective Feb. 19, 2003, as
discipline reciprocal to that imposed upon Wiard by the Illinois Supreme
Court in 2002.
The two-year suspension of Wiard's Illinois law license resulted from
Wiard's failure to keep a client reasonably informed about the status of
a matter; failure to deposit client funds in a separate and identifiable
trust account; conduct involving dishonesty, fraud, deceit, or
misrepresentation; engaging in conduct prejudicial to the administration
of justice; and engaging in conduct that tends to defeat the
administration of justice or to bring the courts or the legal profession
into disrepute.
In 1994 Wiard prepared a trust and property power of attorney for a
client naming himself as successor trustee and agent should the client
die or eventually be unable to act as trustee or should the designated
agent be unable to act. In 1997, without notifying the client or the
property power of attorney, Wiard requested that a bank close two of the
client's accounts and issue the proceeds to him as successor trustee for
the trust. Wiard received almost $11,000 from the bank and used
virtually all of it for his own personal purposes. Wiard later
misrepresented to the client what had occurred.
Wiard stipulated to the propriety of identical, reciprocal
discipline.
In addition to the disciplinary suspension, Wiard's Wisconsin law
license remains suspended for his noncompliance with CLE
requirements.
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Disciplinary proceeding against David
G. Davies
The Wisconsin Supreme Court suspended the law license of David G.
Davies, Phoenix, Ariz., for 30 days, effective March 13, 2003, as
discipline reciprocal to that imposed upon Davies by the Arizona Supreme
Court in 2001. Davies stipulated to the propriety of identical,
reciprocal discipline.
The 30-day suspension of Davies' Arizona law license resulted from
Davies' preparation of an original will and subsequent amendments that
named him as a beneficiary of his client's estate without having his
client seek the advice of independent counsel.
In addition to the disciplinary suspension, Davies' Wisconsin law
license remains suspended for his noncompliance with CLE
requirements.
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Disciplinary proceeding against
Edward G. Harris
The Wisconsin Supreme Court suspended the law license of Edward G.
Harris, 53, Milwaukee, for two years, effective March 28, 2003.
Harris's misconduct included practicing law while his license was
suspended for failure to comply with the Board of Bar Examiners' CLE
attendance requirements. Although Harris was aware of his suspension, he
continued to practice law at the law firm of Piano, Harris &
Tishberg from June 4, 1997, until Feb. 8, 2001, handling at least 60
cases in Wisconsin courts in violation of SCR 22.26(2).
In addition to the unauthorized practice of law, Harris committed
additional misconduct, including neglecting to file a lawsuit on behalf
of one client, in violation of SCR 20:1.3; failing to respond to that
client's numerous requests for information, in violation of SCR
20:1.4(a); and leading that client to believe that a lawsuit had been
filed, thereby engaging in conduct involving dishonesty, fraud, deceit,
or misrepresentation, in violation of SCR 20:8.4(c).
In a different matter, Harris represented another client in a court
action. Harris neglected to respond to motions and offers of compromise,
in violation of SCR 20:1.3. Harris also failed to provide the client
with the most rudimentary information about his case and failed to
respond to the client's numerous inquiries, in violation of SCR
20:1.4(a). Further, Harris failed to advise the client that a judgment
had been entered against the client in the amount of $2,617.74 and
against Harris in the amount of $2,617.74, in violation of SCR
20:1.4(b).
The court concurred with the referee's recommendation for a two-year
suspension of Harris's license and assessed costs of the proceedings
against him. Additionally, the court ordered that within 60 days, Harris
satisfy the judgment entered against the second client in the amount of
$2,617.74. Further, the court ordered that any reinstatement of Harris's
law license be conditioned upon Harris satisfying the judgment entered
against him in the amount of $2,617.74.
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Disciplinary proceeding against
David R. Nott
By order dated March 18, 2003, the Wisconsin Supreme Court suspended
the law license of David R. Nott, 40, who formerly practiced in Beloit
and Loves Park, Ill., for nine months, effective the date of the
order.
The misconduct involved three former clients. The first client paid
Nott $925 to represent her in a bankruptcy. Nott never filed the
bankruptcy action, failed to notify the client when his law license was
administratively suspended, and failed to respond to the client's phone
calls and letters. The client applied for reimbursement through the
Client Security Fund (CSF) and received $575, but could not produce a
receipt for the remaining $350. The court issued an order to show cause
why Nott should not be required to reimburse the client the remaining
$350. Nott did not respond, and the court ordered Nott to make
restitution to the CSF in the amount of $575 and to the client in the
amount of $350.
The second client paid Nott $474 to file an action in a
landlord/tenant case. Each time the client talked to him, Nott told her
he was waiting for a court date. In fact, Nott had never filed an
action. After Nott failed to respond to the client's messages, she filed
a grievance. The CSF reimbursed this client $474, and the court ordered
Nott to reimburse the CSF in that amount.
The third client paid Nott to investigate a potential age
discrimination case. Nott reportedly researched the case and came to the
conclusion that the client did not have a viable cause of action, but he
failed to fully advise the client of that assessment. After Nott failed
to respond to the client's phone calls, the client filed a
grievance.
Nott did not respond to any OLR requests for a response to these
grievances, and in August 2001, the court temporarily suspended Nott's
law license for his failure to cooperate. Nott also failed to answer the
OLR's disciplinary complaint and did not oppose a motion for default
judgment.
The court found that Nott's neglect of the first and second matters
violated SCR 20:1.3, that his failure to notify clients of his
administrative suspension violated SCR 22.26(1)(a), and that his failure
to refund unearned fees violated SCR 20:1.16(d). The court further found
that Nott's failure to respond to client inquiries violated SCR
20:1.4(a), that his misrepresentation to the second client violated SCR
20:8.4(c), and that his failure to respond to OLR violated SCR
22.03(2).
The court also ordered Nott to pay the costs of the disciplinary
proceedings.
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