Disciplinary Proceedings Against Woods
2011 WI 46, 334 Wis.2d 324, 800 N.W.2d 875 (2011)
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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the
referee's recommendation entered upon a
stipulation filed by Attorney Terrence J.
Woods and the Office of Lawyer Regulation
(OLR). The OLR filed a complaint alleging
misconduct in failing to adhere to
professional standards of diligence,
communication with his client, and candor
toward a tribunal. Richard P. Mozinski was
appointed referee. The referee approved
Attorney Woods' no contest plea to the
allegations of the disciplinary complaint
and the parties' stipulation to a six-month
suspension of Attorney Woods' license to
practice law in Wisconsin, to be imposed
retroactively (consecutive to a one-year
suspension effective November 11, 2008).
The referee also recommended Attorney Woods
be ordered to pay costs. No appeal has been
filed.
¶2 We agree the seriousness of Attorney
Woods' misconduct, together with his
disciplinary history, warrant a six-month
suspension of his license to practice law.
However, we conclude the effective date of
the suspension shall be the date of this
decision, notwithstanding the fact that
Attorney Woods' license has been under a
continuous suspension since 2008 and will
remain suspended unless and until he
successfully petitions for reinstatement.
Generally, a retroactive suspension is
disfavored in the absence of some compelling
circumstance. See In re Disciplinary
Proceedings Against Boyd, 2009 WI 59, 318
Wis. 2d 281, 767 N.W.2d 226. We discern no
compelling circumstance to impose a
retroactive suspension in this instance.
Therefore, we approve and adopt the
stipulation and the referee's recommendation
in all respects except as to the effective
date of the suspension. We impose full
costs.
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¶3 Attorney Woods was admitted to
practice law in Wisconsin in 1965 and has
practiced in Oconto Falls. Attorney Woods
has a lengthy disciplinary history; his
license is currently suspended. In In re
the Disciplinary Proceedings Against
Woods,
2009 WI 7, 315 Wis. 2d 282, 759 N.W.2d 322,
a one-year suspension was imposed to run
consecutively to an August 2008 90-day
suspension. In that case, Attorney Woods'
misconduct included the failure to file
timely and serve a personal injury lawsuit
before the statute of limitations expired
resulting in the dismissal with prejudice;
failure to inform his client of a dismissal
motion and hearing; failure to inform his
client of the dismissal with prejudice;
failure to explain to his client the effects
of the dismissal; failure to respond to
successor counsel's requests for the
client's file; dishonesty in failing to
inform his client of the dismissal of the
lawsuit; and failure to file state income
taxes.
¶4 Effective August 11, 2008, the court
imposed a 90-day suspension for Attorney
Woods' failure to file an amended bankruptcy
plan and budget by the deadline, leading to
the dismissal of a bankruptcy petition;
failure to inform his client of the status
and advise his client to comply with court
orders; conflict of interest; and failure to
return advanced fees. In re Disciplinary
Proceedings Against Woods, 2008 WI 79, 311
Wis. 2d 213, 751 N.W.2d 840.
¶5 In 2003 Attorney Woods received a
consensual public reprimand for failure to
act with reasonable diligence; failure to
keep a client reasonably informed; failure
to explain a matter to the extent reasonably
necessary; failure to communicate the basis
or rate of the fee; failure to reduce a
contingency fee agreement to writing; and
failure to take steps reasonably practicable
to protect the client's interests. Public
Reprimand of Terrence Woods, 2003 11. See
also In re Disciplinary Proceedings
Against
Woods, 221 Wis. 2d 230, 583 Wis. 2d 650
(1998) (60-day suspension for failure to
provide adequate representation and failure
to act with reasonable diligence); In re
Disciplinary Proceedings Against Woods,
216
Wis. 2d 137, 573 N.W.2d 838 (1998) (60-day
suspension for failure to keep a client
reasonably informed; failure to promptly
comply with reasonable requests for
information; failure to surrender property
to which the client was entitled; failure to
act with reasonable diligence; failure to
cooperate with the investigation; and for
making a misrepresentation in a disclosure
to the Board of Attorneys Professional
Responsibility); Private Reprimand of
Terrence Woods, 1996-1 (failure to confer
with a client about case settlement; failure
to keep the client reasonably informed; and
failure to return the client's property);
and Public Reprimand of Terrence Woods, 1993-
2 (failure to provide competent
representation; failure to act with
reasonable diligence; failure to keep the
client reasonably informed; and failure to
take reasonable steps to protect the
client's interests upon the termination of
representation).
¶6 In the instant proceedings, the
referee found V.S. was served with a summons
and complaint on May 24, 2008. Attorney
Woods had represented V.S. previously and
they had an ongoing attorney-client
relationship. By at least June 12, 2008,
Attorney Woods had agreed to represent V.S.
in the lawsuit and had met with him to
discuss the case. However, Attorney Woods
failed to file a timely answer to the
complaint and did not timely seek an
extension from the court or opposing counsel.
¶7 Opposing counsel declined to agree
to an extension and sought a default
judgment against V.S. On June 26, 2008,
Attorney Woods filed a notice of retainer,
answer, affirmative defenses, and
counterclaim with the circuit court clerk.
¶8 At the July 22, 2008, hearing on
plaintiff's motion for default judgment,
Attorney Woods appeared on behalf of V.S.
and misrepresented to the court that V.S.
had hired him on or about June 18, 2008,
after the deadline for filing an answer had
passed. On July 23, 2008, the court issued
a default judgment against V.S. and his wife
in the amount of $10,124.47.
¶9 Following the entry of a default
judgment, Attorney Woods took no further
action on behalf of V.S. Ultimately V.S.
retained new counsel.
¶10 Meanwhile, on June 27, 2008, V.S.
had been charged with two traffic violations
and hired Attorney Woods to represent him.
The circuit court scheduled trial on both
traffic cases for August 11, 2008. V.S. did
not receive a copy of the hearing notice and
Attorney Woods did not advise V.S. of the
hearing date.
¶11 On July 8, 2008, this court issued a
decision suspending Attorney Woods' law
license for 90 days, effective August 11,
2008. See Woods, 311 Wis. 2d 213.
Attorney
Woods prepared a letter informing his
clients he was subject to discipline and
suspended from the practice of law for 90
days. He advised his clients to seek other
legal counsel. Although the letter was
dated August 6, 2008, it was not mailed
until August 11, 2008.
¶12 Attorney Woods called V.S. the
morning of August 11, 2008, regarding the
hearing in the two traffic cases. V.S. said
he could not possibly make the hearing on
such short notice and had other
commitments. Attorney Woods indicated he
would request a continuance. Attorney Woods
thereafter called the circuit court and
faxed a letter to the court indicating he
was subject to discipline and requesting the
matter be postponed for one month.
¶13 Neither Attorney Woods nor V.S.
appeared at the August 11, 2008, trial. The
circuit court declined to continue the
matter and issued a default judgment against
V.S. in both traffic cases. On August 12,
2008, V.S. received Attorney Woods' August
6, 2008, letter.
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¶14 The referee determined these facts
supported three counts of professional
misconduct as alleged in the disciplinary
complaint. By failing to file a timely
answer or timely request an extension from
the court and opposing counsel, and by
failing to take meaningful action to protect
his client's interests once notified the
court had scheduled an August 11, 2008,
trial on the traffic citations, when he knew
he would not be able to appear because of
his law license suspension, the referee
concluded Attorney Woods violated SCR 20:l.3
(diligence).
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¶15 By informing the court he had
received the complaint from his client after
the deadline for filing an answer had
passed, when in fact he had received the
complaint prior to the deadline, the referee
concluded Attorney Woods violated SCR 20:3.3
(a)(1) (candor to the tribunal).
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¶16 By failing to notify his client by
certified mail and to provide appropriate
written notice to opposing counsel of his
suspension, the referee concluded Attorney
Woods violated SCR 22.26(1), enforceable
through SCR 20:8.4(f) and, by failing to
make such disclosure, as well as by failing
to timely advise his client of the trial
date for the traffic cases, the referee
concluded Attorney Woods violated SCRs 20:1.4
(a)(3) and 20:1.4(b) (communication).
¶17 Addressing discipline, the referee
found persuasive a number of cases involving
similar violations imposing suspensions of
four to six months. See Boyd, 318
Wis. 2d
281; In re Disciplinary Proceedings
Against
Jones, 2008 WI 53, 309 Wis. 2d 585, 749
N.W.2d 603; In re Disciplinary Proceedings
Against Morrissey, 2005 WI 169, 286 Wis.
2d
579, 707 N.W.2d 142. However, the cited
cases involved more counts of misconduct
than charged here. The referee considered
Attorney Woods' extensive disciplinary
history, however, to be an aggravating
factor. The referee concluded, on balance,
the case law supported a six-month license
suspension.
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¶18 The referee noted a retroactive
suspension is generally not favored in the
absence of some compelling circumstance.
See Boyd, 318 Wis. 2d 281, ¶34. The
referee
concluded that if the OLR would seek a six-
month prospective suspension, the effect
would be to extend Attorney Woods'
suspension longer than necessary for the
misconduct at issue. Noting that Attorney
Woods' license is currently suspended, the
referee considered Attorney Woods' license
will remain suspended unless and until he
successfully petitions for reinstatement.
For this reason, the referee was satisfied
the public would be adequately protected,
noting that commencing the suspension
retroactively would simply affect the date
when Attorney Woods would be eligible to
petition for reinstatement.
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¶19 Because no appeal is filed, we
review the referee's report pursuant to SCR
22.17(2). In imposing discipline, we
independently review the seriousness of the
misconduct as well as the need to protect
the public, the courts, and the legal system
from repetition of misconduct, to impress
upon the attorney the seriousness of the
misconduct, and to deter other attorneys
from committing similar misconduct. See
Woods, 311 Wis. 2d 213, ¶22. In
reviewing
this matter, we issued an order to show
cause requiring the parties to address why,
in light of Attorney Woods' extensive
disciplinary history, a retroactive
suspension should be imposed. The parties
filed responses that advocated in favor of
accepting their stipulation and the
referee's recommendation.
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¶20 We determine the seriousness of
Attorney Woods' misconduct, together with
his extensive disciplinary history, warrants
a six-month license suspension, effective
the date of this order. Because Attorney
Woods' extensive disciplinary history is an
aggravating factor, we conclude he is not
entitled to any leniency. We generally do
not favor a retroactive suspension, see
Boyd, 318 Wis. 2d 281, and do not impose
a
retroactive suspension here. In light of
Attorney Woods' extensive disciplinary
history, a retroactive suspension would not
serve the objectives of lawyer discipline,
which include the important goal of
deterrence. See Woods, 311 Wis. 2d 213,
¶22. We are satisfied no compelling
circumstances justify a retroactive
suspension.
¶21 Full costs are imposed. Attorney
Woods has filed no objection to the OLR's
statement of costs and the record reveals no
extraordinary circumstances to justify the
reduction of costs.
¶22 IT IS ORDERED that Terrence J.
Woods' license to practice law in Wisconsin
is suspended for a period of six months,
effective the date of this order.
¶23 IT IS FURTHER ORDERED that within 60
days of the date of this order Terrence J.
Woods pay to the Office of Lawyer Regulation
the costs of this proceeding. If the costs
are not paid within the time specified and
absent a showing to this court of his
inability to pay the costs within that time,
the license of Terrence J. Woods shall
remain suspended until further order of the
court.
¶24 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Terrence
J. Woods comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
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