The Wisconsin Supreme Court affirmed a referee's findings of misconduct in two of four charged instances but reduced the proposed 60 day suspension to a public reprimand with costs. The attorney had represented a bridal shop owner in a conversion action brought against a bank and its lawyer that had seized assets of the client's prior business in a replevin action. The lawyer had missed a court appearance, leading to dismissal of the case. He thereafter appeared and claimed that a health issue had prevented him from appearing. The judge found that he had not established good cause and refused to reinstate the matter.
The referee rejected charges that the conversion claim was frivolous. The court agreed:
The tests that we apply in this disciplinary matter are whether
there was clear, satisfactory, and convincing evidence that Attorney Osicka
knowingly advanced a claim or defense that was unwarranted under existing law
or could not be supported by a good-faith argument for an extension,
modification or reversal of existing law, and whether there
was clear, satisfactory, and convincing evidence that Attorney Osicka knowingly
advanced a factual position without a basis for doing so that was not frivolous. In other words, the OLR was obligated to show
that Attorney Osicka, in fact, knew the claim or factual position he was
advancing was unwarranted.
The referee concluded that the OLR had not met these
standards. This is supported by the
referee's finding that the OLR, through the testimony of the attorneys for the
Bank, never disproved that the Bank had improperly seized L.A.'s
personal property and records that were not subject to its security
interest. Similarly, the referee made no
finding that Attorney Osicka knew that L.A.had not started a new, legally separate business, but nonetheless went
forward with his claim that the Bank had improperly seized assets belonging to
the new business. To the contrary, the
referee pointed out that L.A. had stated in
her affidavit that she had created a new business entity with separate
inventory. Moreover, the referee found
that Attorney Kostka may have had personal knowledge before the execution of
the replevin order that L.A. had separated inventory items between her two
business entities, but nonetheless participated as an agent of the Bank in the
execution of a replevin order that resulted in a seizure of assets without
consideration of which entity owned the assets.
We agree with the referee that the evidence presented in this proceeding
simply did not meet the rather high burden of showing that Attorney Osicka
subjectively knew he did not have a good-faith basis for advancing his factual
assertions or claims, but nonetheless went forward with those factual
assertions and claims.
The court agreed with the referee that, in an unrelated matter, the lawyer had failed to fully respond to the bar's request for information. The lawyer's actions in providing the information on the day before a proposed interim suspension for failure to respond violated the duty to cooperate.
In another matter, the attorney had failed to return an unearned fee. The attorney had made a late-blooming assertion that the fee was non-refundable. (Mike Frisch)