Wednesday, July 1, 2009

Much Lesser Sanction

In a case decided today, the Wisconsin Supreme Court rejected proposed discipline of a lenghty suspension in favor of a 60-day sit down. the court explained its sanction decision as well as its analysis of the imposition of costs:

The OLR [Office of Lawyer Regulation] charged 13 counts of professional misconduct.  The referee found a failure of proof as to five counts, including the four counts arising out of Attorney...'s representation of J.K.  The four counts involving J.K. provided the impetus for the OLR to commence its investigation into Attorney...'s conduct in 2004.  The OLR would not have learned of Attorney...'s representation of R.M. had it not been for the grievance filed by J.K.  The OLR did not appeal the referee's decision with respect to the J.K. counts.

The most serious allegation of misconduct found by the referee was Attorney...'s alleged $9,630 overcharge in the R.M. personal injury settlement.  It appears that the question of what was the appropriate fee in the R.M. settlement was the most hotly debated issue in this case, and that this single issue accounted for a substantial amount of the total time——and resulting fees and costs——expended by the OLR in prosecuting this matter.  We have concluded that the OLR failed to meet its burden of proof on its allegation that Attorney...overcharged R.M.  We also rejected the OLR's cross-appeal and agreed with the referee that Attorney...fully cooperated with the investigation into his conduct. 

 We agree that the remaining counts of misconduct are serious failings which warrant a suspension of Attorney...'s license to practice law.  However, the failure to maintain proper records is a technical violation, and although we did not overturn the referee's factual findings as to why Attorney Molinaro deferred income from one year to the next, we did agree that his explanation for the deferral was plausible.

While the OLR sought a two-year suspension and the referee recommended a 30-month suspension, this court has deemed it appropriate to impose a much lesser sanction, a 60-day suspension.

Attorney...has practiced law for almost 30 years and has no prior disciplinary history.  This matter has been pending for a significant period of time.  The conduct at issue occurred between 2001 and 2003.  The OLR's investigation lasted for 30 months before the matter was referred to the preliminary review committee.  A complaint was not filed until 2007.

In view of all of these factors, we conclude that it would not be fair under the circumstances of this case to hold Attorney...responsible for the full amount of costs.  We conclude that extraordinary circumstances are present and that Attorney...should be required to pay $12,000 in costs.

It seems appropriate to me that costs should only be imposed where misconduct is found. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/07/in-a-case-decided-today-the-wisconsin-supreme-court-rejected-proposed-discipline-of-a-lenghty-suspension-in-favor-of-a-60-da.html

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