Tuesday, March 4, 2008

Sharing Responsibility

There is a very interesting bar discipline case decided today by the Wisconsin Supreme Court. The court issued a public reprimand in a case involving an attorney retained by a husband and wife to remove any inaccuracies on their credit report after they had filed a chapter 7 bankruptcy. The attorney identified a possible issue with an adverse report by an entity called Direct Marketing("DM"). The clients apparently advised that they had had no dealings with DM. He contacted DM and was told that the husband had authorized the issuance of a credit card in response to a telemarketing call. Without consulting with the husband to confirm or deny this, the lawyer filed suit against DM alleging violations of the Fair Credit Reporting Act.

DM had recorded the telemarketing call in which the husband authorized the credit card. The lawyer persisted in the suit after receiving a copy of the recording. When the clients received a copy of the tape, they assumed the case would be dismissed. Nonetheless, the lawyer did not dismiss the case. While the lawyer had an affidavit from the husband denying any recollection of the call, the affidavit was never filed. Summary judgment was awarded to DM and eventually sanctions were imposed. The lawyer did not advise the clients of the judgment and sanctions award.

The court concluded that both lawyer and client bore responsibility for the litigation:

"The bottom line is that we concur with the referee that Attorney Crandall bears some responsibility for the sanction judgment entered against M.J.[the husband], but we do not believe that the responsibility lies solely with him. He did not keep his clients adequately informed and did not engage them sufficiently in decisions about whether and how to proceed with their claim. On the other hand, there is no allegation in the record that M.J. or C.J.[the wife] instructed Attorney Crandall to dismiss the lawsuit, and indeed M.J. indicated his approval of continuing the fight by executing an affidavit in opposition to Direct Merchants' summary judgment motion. Under these circumstances, we conclude that it would be equitable for Attorney Crandall to pay partial restitution to M.J. and C.J. in the flat amount of $1,000. This will avoid any further litigation over possible attorney fees or interest, which would be more costly than any amounts at issue."

The attorney also had been subject to an interim suspension for his failure to adequately respond to the bar investigation. Although he had not previously been disciplined for original misconduct in Wisconsin, he had been subject to a reciprocal suspension as a result of violations found in Minnesota. (Mike Frisch)

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