¶2 Attorney Smead was admitted to practice law in Wisconsin in 1998 and practices in Larsen, Wisconsin. In 2010, his law license was suspended for 120 days for misconduct found in two separate attorney disciplinary matters. The misconduct at issue included failing to respond to clients' requests for information; failing to hold clients' money in trust; failing to refund an unearned fee to a client; failing to have a written contingent fee agreement; and failing to respond to the OLR's grievance investigations. In re Disciplinary Proceedings Against Smead, 2010 WI 4, ¶¶20, 28, 322 Wis. 2d 100, 777 N.W.2d 644. In 2011, Attorney Smead was publicly reprimanded for failure to notify a client that his law license had been suspended; failure to provide a client with an accounting of fees advanced and a refund of any unearned portion of the fee following the suspension of his law license; and failure to provide the OLR with a written response to a grievance investigation. In re Disciplinary Proceedings Against Smead, 2011 WI 102, ¶9, 338 Wis. 2d 23, 806 N.W.2d 631.

¶3 On July 17, 2012, the OLR filed a complaint alleging seven counts of misconduct arising out of Attorney Smead's representation of J.C., who hired Attorney Smead to represent him in a criminal matter. J.C. paid Attorney Smead an advanced fee of $2,000. Attorney Smead did not prepare a written fee agreement, nor did he deposit the fee into his trust account.

¶4 On July 26, 2007, Attorney Smead filed a notice of appearance in the criminal matter on J.C.'s behalf. On September 5, 2007, the OLR filed a motion with this court asking it to order Attorney Smead to show cause why his law license should not be suspended for willful noncooperation in three grievance investigations unrelated to J.C.'s case. Attorney Smead failed to timely respond to this court's order to show cause, and on October 10, 2007, this court issued an order temporarily suspending Attorney Smead's license. The order required Attorney Smead to comply with SCR 22.26 which requires, among other things, that a suspended attorney notify clients in pending matters of the attorney's suspension and consequent inability to act. The rule also requires that the attorney notify courts and adverse parties of the suspension.

¶5 Attorney Smead did not advise J.C., the presiding court, or the assistant district attorney that his license to practice law had been suspended. On October 17, 2007, J.C. telephoned Attorney Smead to ask about the status of his case. Attorney Smead's telephone was disconnected. J.C. then sent Attorney Smead an e-mail. Attorney Smead responded and provided a new telephone number but he did not inform J.C. that his law license had been suspended.

¶6 J.C. telephoned Attorney Smead multiple times and sent several e-mails seeking information about the status of his case. Attorney Smead failed to provide meaningful responses to J.C.'s inquiries, and continued in his failure to inform J.C. that his law license had been suspended, that he could no longer represent J.C., and that J.C. should hire a new attorney.

¶7 J.C. learned through a source other than Attorney Smead that Attorney Smead's law license had been suspended. On January 24, 2008, J.C. sent Attorney Smead an e-mail and specifically asked him to refund the $2,000 advanced fee. Attorney Smead did not respond to the request and did not provide any refund.

¶8 J.C. subsequently retained another attorney to represent him in his criminal matter. In February of 2008, J.C. submitted a claim for reimbursement to the Wisconsin Lawyers' Fund for Client Protection ("the Fund"). The Fund approved payment of $2,000 to J.C. for reimbursement of funds lost as a result of Attorney Smead's conduct.

¶10 Attorney Smead filed an answer on July 25, 2012, admitting the allegations in the complaint. On October 26, 2012, the OLR and Attorney Smead entered into a stipulation whereby Attorney Smead stated he understood his right to a full evidentiary hearing at which the OLR would have the burden to prove the allegations in the complaint by clear, satisfactory, and convincing evidence. Attorney Smead affirmed that no promises were made to secure his entry into the stipulation and that he entered into the stipulation voluntarily and of his own free will. The parties stipulated that Attorney Smead would make restitution to the Fund in the amount of $2,000, with interest at the rate of five percent dating back to January 24, 2008. On October 26, 2012, the referee entered an order approving the stipulation. The referee requested the parties to brief the issue of appropriate discipline. Following review of those briefs, the referee filed his recommendation as to discipline on December 10, 2012. While the OLR had sought a 60-day suspension, Attorney Smead asked for a public reprimand. The referee concluded that a public reprimand was an appropriate sanction.

¶11 The referee pointed out that the misconduct at issue in this case occurred in the fall of 2007, which was the same general time period during which the misconduct that resulted in Attorney Smead's prior suspension and public reprimand arose. The referee said during that time period, Attorney Smead had taken on too many cases to help another lawyer and he became overwhelmed. As a result of the extra work, Attorney Smead became burned out and exhausted and began neglecting his work, which resulted in complaints to the OLR.

¶12 The referee said in retrospect, Attorney Smead seems to now recognize that his behavior during late 2007 and early 2008 fell far below the standard of professional responsibility expected from any attorney. The referee said although none of Attorney Smead's post-event analysis of his behavior excuses his actions in J.C.'s case, it does provide a context for those actions and suggests that his mistakes were not motivated by greed or laziness. The referee said Attorney Smead's self-analysis suggests that he is capable of understanding where he went wrong in his practice and how those errors could be avoided in the future.

¶13 The referee notes that following his suspension Attorney Smead began working as a nursing assistant and later attended nursing school and became a registered nurse in June of 2010. Attorney Smead continues to work as a nurse. The referee also notes that Attorney Smead's law license is currently in good standing and he has been working with the Winnebago County Free Legal Clinic on a limited basis by providing pro bono and reduced fee services to needy clients. The referee also points out that Attorney Smead has made restitution to the Fund.

¶14 The referee concluded that he did not believe a further suspension would serve either the public or Attorney Smead in any meaningful way. In the words of the referee:

¶16 This court will affirm a referee's findings of fact unless they are clearly erroneous, but conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. This court is free to impose whatever discipline it deems appropriate, regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶18 We note, as did the referee, that the misconduct at issue here had its genesis in the same time frame that was at issue in the matters that led to Attorney Smead's prior suspension and public reprimand. Attorney Smead has indicated that since that time he has evaluated his past behavior, recognized his mistakes, and declared his remorse for his misconduct. He has embarked on a new career in nursing and has returned to the practice of law on a limited basis and provides services to needy clients. We also note that Attorney Smead was willing to resolve this matter without the need for a full evidentiary hearing, and he made the ordered restitution to the Fund. Under all of these circumstances we conclude that a public reprimand is an appropriate level of discipline.

¶19 We decline to adopt the referee's recommendation that Attorney Smead not be assessed the costs of the proceeding. Supreme Court Rule 22.24(1m) provides that it is this court's general policy upon a finding of misconduct to impose all costs upon the respondent. In cases involving extraordinary circumstances, the court may, in the exercise of its discretion, reduce the amount of costs. We find no extraordinary circumstances in this case that would warrant a deviation from the court's general policy.

¶20 IT IS ORDERED that Robert J. Smead is publicly reprimanded for professional misconduct.

¶21 IT IS FURTHER ORDERED that within 60 days of the date of this order, Robert J. Smead shall pay to the Office of Lawyer Regulation the costs of this proceeding.