Friday, February 4, 2011

Problems Problems

The Wisconsin Supreme Court has imposed a 60 day suspension with conditions on reinstatement in a matter in which the attorney had used a trust account for his own purposes after declaring bankruptcy. His problems multiplied when the trust account was closed by the bank for bad checks. The problems multiplied further when the bad checks were brought to the attention of the Bar and he failed to fully respond to the inquiries of the Office of Lawyer Regulation ("OLR")

The referee had considered evidence offered in mitigation:

At the hearing, Attorney...offered a number of explanations in an attempt to mitigate the sanction.  The referee found those explanations fell generally into two categories: (1) the offenses, although committed, did not rise to the level of causing actual client harm; and (2) the offenses were related to various personal, business, physical health and emotional problems. 

The referee determined the first category of Attorney...'s explanations was not persuasive.  The referee concluded clients were not harmed because the bank had covered most of the overdrafts, but this did not mitigate Attorney...'s misconduct. 

The referee found the second category of explanations more difficult to assess.  The referee said Attorney...'s testimony was somewhat compelling as to his catastrophic life struggles and he had dealt with a number of life challenges during the time of the rule violations.  The referee observed Attorney...'s testimony was professional and appropriate, and he did not contend he should be relieved of the consequences of his professional misconduct.  The referee noted Attorney...'s personal circumstances may have called for a creative response for the imposition of discipline; Attorney, however, failed to file a post-hearing brief, although invited and required to do so.  The referee found Attorney...'s failure to acknowledge communications after the hearing demonstrates he is not yet willing to do what is necessary to meet his professional responsibilities.  The referee stated that although he was sympathetic to Attorney...'s daunting life circumstances, the record did not support a lesser sanction than called for by the facts of the misconduct.

The reinstatement conditions are not terribly onerous given the misconduct. As the referee recommended:

1. Attorney...must attend an OLR trust account management seminar within one year and successfully complete an exam following that seminar;

2.   Attorney...must establish a new trust or fiduciary account prior to accepting client or third party funds in connection with client representation or in a fiduciary capacity; and

3.   Upon establishing the new trust or fiduciary account, Attorney...must provide the OLR with the following: (a) a fully executed agreement to report overdrafts on the new trust or fiduciary account; (b) documentation establishing that Attorney...has a business account; and (c) quarterly reports regarding his trust and/or fiduciary account for a period of one year after establishing such an account, including any and all trust, fiduciary, and/or business account records requested by the OLR.

 (Mike Frisch)

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