Tuesday, March 10, 2015

Did Wisconsin Bar Counsel Overprosecute An Attorney?

A five-month suspension has been ordered by the Wisconsin Supreme Court for client-related misconduct in several matters.

One in particular may be of interest

On June 13, 2011, Attorney McClure sent an electronic response via a "legalmatch" website to M.K., J.K.'s mother, saying that Attorney McClure was a respected former prosecutor with 20 years of private practice criminal defense experience and that Attorney McClure could help J.K.  Attorney McClure told M.K. that he offered "a free consultation, convenient evening and weekend appointments and a simple up front flat fee."  Attorney McClure went on to tell M.K., "The total fee that I would charge for this case is $2,500, pending more information from you.  The entire fee payment is due when I take your case.  Standard flat fee for domestic violence and felony child abuse charge."

On June 16, 2011, M.K. hired Attorney McClure to represent her son and paid Attorney McClure a flat fee of $2,500, which Attorney McClure deposited directly into his business account.  There is no documentary evidence of a written fee agreement between Attorney McClure and M.K. and/or J.K.  J.K. obtained successor counsel, whose appearance was entered on September 8, 2011.

There were violations involving another client solicited through "legalmatch."

After finding multiple violation, the referee made this unusual observation

But something is unusual.  Why are there so many separate Counts charged here?  It appears that Complainant decided to include in its Complaint every possible wrong it could find.  While that is its right, it still causes the Referee to wonder why this happened in a case where the attorney of over 33 years here in Wisconsin had never had any prior discipline and no client or medical provider lost any funds and OLR knew of the personal hardships which impacted that attorney during the period of misconduct.  OLR has not challenged Respondent's assertion of him having many, many serious personal issues affecting him during the time period of the misconduct.  It appears to the referee from the case record that the reason for Complainant bringing so many Counts was/is to create, for the Sanction portion of the proceeding, an impression that a great wrong has occurred because of the number of findings of misconduct and, therefore, a major and significant penalty should be imposed.

The danger with that approach is that the prosecutor then is forever encouraged to overcharge in cases where there is clear wrong-doing on one or a few Counts in order to argue for and obtain the imposition of ever more severe sanctions.  Here the Respondent acknowledged his wrongdoing as can be seen by the stipulation that was received into the case record.  But when all is said and done the Respondent still is seen to have committed acts of misconduct in the areas of his Trust Account, his fee agreement/communication document and dishonesty.  Saying the foregoing is in no way an effort to diminish the misconduct that occurred.  But did Respondent's conduct warrant a complaint with 21 separate Counts?  A schoolyard metaphor would be that piling on was occurring by youngsters during the recess.

. . . .

In this case it appears that the prosecutor has filed an unreasonable and excessive number of Counts, not because it could meet its burden, but in order to coerce and unfairly impact that portion of the proceedings that addresses sanctions.  The referee doesn't know what should be the exact number of Counts in this case, but 21 would appear clearly excessive and intended to influence the sanctions that should be imposed. 

Respondent is a very good, but not a perfect, man and attorney.  On balance in his 33-plus years as a lawyer he has labored hard and brought great credit to the legal profession.  . . .  That said, however, it is also clear that he has violated . . . the Supreme Court Rules that regulate all attorneys in this State.  The public must be protected from misconduct by an attorney that causes resources to be converted and diminishes respect for the rule of law.  While respondent's misconduct was real and over a substantial period of time, it is mitigated by his very positive and exemplary 33 year career as a practicing lawyer, his actions taken to correct the consequences of his misconduct, and by the great number of personal struggles that confronted and motivated him as he lost his moral compass during the very period when the misconduct occurred.  . . .  As a 59 year old man with no prior lawyer misconduct, he is seeking an opportunity to be sanctioned fairly and appropriately.

The court

With respect to the appropriate level of discipline, upon careful review of the matter, we conclude that a five-month suspension is appropriate.  As the referee pointed out, Attorney McClure's law practice now spans more than 34 years and he has no prior disciplinary history.  It is also significant to reiterate that no clients or medical providers lost any funds, and that Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all the facts alleged in the complaint.  We also find it significant that the referee, who was in the best position to judge witness credibility, found Attorney McClure to be genuinely remorseful.  In addition, the OLR does not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue in this case.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2015/03/a-five-month-suspension-has-been-ordered-by-the-wisconsin-supreme-court-for-client-related-misconduct-in-several-matters-on.html

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Comments

Aside from the overcharging issue, what is wrong with the flat fee arrangement? Was it that it was too high? I guess that depends on the factors in 1.5 used to determine if a fee is reasonable, but was $2500 of the full case excessive? Was it that it was not in writing? To my knowledge that is not required. Was it that the attorney deposited it in the business account? If the fee is agreed to, and it is the total amount for the representation, as long as the attorney provides the representation, doesn't that mean it is "earned" upon agreement?

For a long time I have found how different jurisdictions deal with the notion of flat fees. It appears that most of them really handle them as if they were the same as "security retainers" thus eliminating the advantages (to consumers and lawyers) offered by the flat fee. At a time when clients are looking for alternative fee structures, many jurisdictions make it more difficult to attorneys to offer alternatives.

Posted by: Alberto Bernabe | Mar 10, 2015 12:04:23 PM

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