Saturday, February 22, 2020

Court Order Trumps Loyalty To Client

The Wisconsin Supreme Court imposed a 60-day suspension of an attorney admitted in 1966 for misconduct in representing a divorce client.

The attorney had received funds and failed to comply with a court order to turn the funds over to a conservator.

A problem

On July 15, 2015, E.M. was charged in a criminal complaint with one count of battery or threat to a judge, a felony, and two counts of aggravated battery-intend great bodily harm, also a felony, in Ozaukee County Circuit Court. The charges stemmed from E.M.'s efforts to hire a hit man to batter Judge Malloy, [her ex-husband] M.M., and M.M.'s then girlfriend.

Fox 6 Now reported on the charges.

An explanation

Attorney Reilly testified he did not turn over proceeds from the sale of the Range Rover to Scribner because there was a need for funds for E.M.'s criminal defense. Attorney Reilly admitted that the $97,000 in funds from the Ameritrade account were placed in his law firm's trust account and that he did not turn those funds over to the conservator. He further admitted he approved paying some of amounts in excess of the amounts specified in the divorce judgment, and he admitted he directed the conservator and his law firm to pay money for E.M.'s bail even though there was nothing in the divorce judgment authorizing funds to be used for that purpose.

He was charged in a second matter with 

...billing his client for his own personal defense as an individually named defendant in an adversary case in the United States Bankruptcy Court for the Eastern District of Wisconsin...

Sanction

With respect to Attorney Reilly's representation of E.M., the referee said that Attorney Reilly justified his actions by suggesting he was acting only on his client's behalf in making the disbursements. The referee disagreed, saying since the disbursements were used to make payments on debts not included in the divorce judgment, Attorney Reilly was enabling his client to violate the circuit court's order. The referee also said Attorney Reilly used some of the funds to pay his own fees and in the case of the proceeds from the car sale, he provided his law firm with a $25,000 retainer to represent E.M. in her criminal matter. The referee said, "Absolute compliance with a court's decisions and orders is at the foundation of our legal system. Neither litigants nor attorneys can pick and choose which court orders they decide to follow and which they do not."

With respect to Attorney Reilly's representation of J.D'A., the referee said since Attorney Reilly was aware of J.D'A.'s financial situation, it was highly inappropriate for him to present her with a bill which he knew she could not pay when she retained new counsel. The referee said the only explanation for presenting the bill was that Attorney Reilly wanted to harass J.D'A. for purposes of retaliation because he was angry that she obtained a new attorney. The referee also said:

Additionally, Reilly must have known that it would be inappropriate for [J.D'A.] to pay for Reilly's own defense in the adversary case. It was Reilly's own
disregard for the power of the Automatic Stay that got Reilly in trouble with the Bankruptcy Court. Therefore, Reilly was responsible for his own representation.

ANNETTE KINGSLAND ZIEGLER, J. (dissenting). While I agree that Attorney Reilly's conduct warrants more than a public reprimand, I would impose a 30-day suspension. In In re Disciplinary Proceedings Against Schnitzler, 140 Wis. 2d 574, 412 N.W.2d 124 (1987), this court adopted the policy of imposing a minimum 60-day period of suspension, in large part because it concluded a 30-day suspension period was not sufficient time for an attorney to notify clients, courts, administrative agencies,
and attorneys for opposing parties of the suspension. The advent of electronic communications has largely obviated this concern. Adhering to the policy of 60-day minimum suspension deprives the court of the ability to impose an appropriate level of discipline commensurate with the particular facts of each case.

Accordingly, I respectfully dissent.

I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this dissent.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/the-wisconsin-supreme-court-imposed-a-60-day-suspension-of-an-attorney-admitted-in-1966-for-misconduct-in-representing-a-divo.html

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