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Attorney Walter W. Stern, III, is a
Wisconsin-licensed attorney, admitted to the
practice
of law on May 20, 1974.
In May 2019, a Client hired Stern to
represent her in filing a civil complaint in
federal
court against her former employer alleging
discrimination based on her race and
religion, retaliation, and constructive
discharge in violation of Title VII of the
1964 Civil Rights Act (Title VII).
In 2018, before hiring Stern, Client had
filed a complaint and an amended complaint
with the Equal Employment Opportunity
Commission (EEOC). She had not, however,
filed a new or amended complaint with the
EEOC after her employment ended in December
2018, to allege that she had been
constructively discharged or to otherwise
make a termination-based claim against her
former employer with the EEOC. On March 1,
2019, the EEOC issued a Right to Sue letter
to Client regarding the claims she had
asserted in her complaint and amended
complaint.
The Right to Sue letter required Client to
file a civil complaint against her former
employer by May 30, 2019. Stern failed to
note that Client had not included in her EEOC
complaint or amended complaint allegations of
constructive discharge or a termination-based
claim against her former employer, and,
therefore, she was prohibited from raising
those claims in a civil complaint.
Because Stern did not note Client's failure
to assert allegations of constructive
discharge or a
termination-based claim in her EEOC
complaints, he could not provide her legal
advice regarding any potential constructive
discharge or termination-based claims,
including whether she should file a new EEOC
complaint alleging those claims.
On May 29, 2019, Stern filed a complaint
against Client's former employer in the
United States District Court for the Eastern
District of Wisconsin. The complaint alleged
that her former employer subjected Client to
discrimination because of her religion,
failed to accommodate her
reasonable religious accommodation requests,
and then retaliated against her and subjected
her to
a hostile work environment. The complaint
also alleged that her former employer had
constructively discharged her due to the
hostile work environment and retaliation. The
civil
complaint sought unspecified damages under
Title VII and attorneys' fees. Stern did not
include
any claims for discrimination or retaliation
based on Client's race.
On August 21, 2019, Stern filed Client's
first amended complaint, in which he added
additional factual allegations concerning her
former employer's alleged discrimination
based on
her race, in addition to her religion. The
paragraphs describing her injuries from her
former
employer's discriminatory conduct,
retaliation, and the alleged hostile work
environment and
constructive discharge claims, however,
referenced only discrimination based on her
religion,
and not based on her race.
On September 20, 2019, opposing counsel filed
the former employer's Answer, Defenses
and Affirmative Defenses, in which it denied
key allegations included in the amended
complaint;
asserted that Client failed to state a claim
for constructive discharge and failed to
exhaust her
administrative remedies concerning the
constructive discharge claim; asserted that
Client failed
to state a claim upon which relief could be
granted; and, asserted other defenses that
could be raised in a dispositive motion or
Motion for Judgment on the Pleadings pursuant
to Federal Rule
of Civil procedure 12(c).
In approximately September 2019, in
anticipation of Stern's planned retirement,
Stern began speaking with two other lawyers
(Co-Counsel) about referring to them a number
of clients, including Client. Stern proposed
that he and the Co-Counsels work on Client's
case as a team or joint venture, with Stern
acting more as a consultant until Client's
case went to trial or mediation, when Stern
might take a more active role in the
representation.
In September, October, and November 2019,
Stern continued to represent Client in the
civil case, while also discussing Client's
case with the Co-Counsel.
In October 2019, Stern told Client in a
letter that he was in the process of "semi-
retiring from the practice of law" and that
he wanted to refer her case to the Co-Counsel
as part of a "newly formed joint venture" he
was entering into with them. Stern told
Client that he would
"remain involved in [her] case until its
completion, but more in a consulting role";
he would be
"joining with" the Co-Counsel, who would
handle the day to day work on her case; he
would
"remain as a mentor and an overseer, but [the
Co-Counsels's respective] staff will be
responsible
for handling the majority of the work going
forward"; and, she should "rest assured that
[Stern]
will be involved until the conclusion of
[Client's] case."
Stern also sent Client a new
representation agreement that was
substantially similar to the May 2019
agreement she had
entered into with Stern, but that included
all three lawyers and stated that they would
share the
one-third contingent fee.
Stern asked Client to sign and return the new
representation agreement
if she "wish[ed] to continue [her] case with
the newly formed joint venture" between Stern
and
the Co-Counsel. Stern also told Client that
if she didn't want to be represented by Stern
and the
Co-Counsel, she could seek other alternate
counsel, but that if she sought other
alternativecounsel Stern intended to retain
his lien for the full one-third contingent
fee against any recovery
she might receive.
Client agreed to be represented by the Co-
Counsel in conjunction with Stern, but she
refused to sign the new representation
agreement because she believed that it would
cause her to
be subject to two separate representation
agreements.
On October 27, 2019, Stern sent Client a
letter that was addressed to Client and
electronically signed by him, but the body of
which was written as if from Client. Stern
included
a signature line at the bottom of the letter
for Client to sign. The letter authorized the
Co-Counsel
to work with Stern on Client's case;
described the division of any legal fees
between Stern and
the Co-Counsel; stated that the terms of the
original representation agreement with Stern
would
otherwise remain in full force and effect;
and, stated that Stern was in the process of
retiring and
that the Co-Counsel would "be handling some
of the day to day aspects of the case with
[Stern]
heading up the team of lawyers."
While it is unclear whether Client signed the
letter, it was consistent with her
understanding of the division of fees between
the lawyers and consistent with her
understanding
that Stern that he was bringing the Co-
Counsel on to help him with her case because
he was
going to semi-retire, but that he would
continue to be part of the team of lawyers
representing
her. Client did not agree to have Co-Counsel
take over her entire case without Stern's
involvement in the representation.
Co-Counsel did not begin actively
representing Client until approximately
November 30, 2019, and they did not assume
primary responsibility for Client's case
until
approximately December 5, 2019. Co-Counsel
did not file a notice of appearance with the
court
until January 21, 2020. signed a stipulation
drafted by opposing counsel to
dismiss Client's constructive discharge claim
with prejudice. Stern did not sign the
stipulation in
December 2019.
Between December 31, 2019, and January 14,
2020, opposing counsel emailed Stern and
both Co-Counsel regarding the stipulation. He
informed them that he would prepare and file
a
summary judgment motion unless he received
the fully executed stipulation signed by all
three
lawyers.
Ultimately, on January 14, Stern authorized
opposing counsel to affix his signature to
the stipulation. On January 15, opposing
counsel filed the stipulation with the court.
While Client told OLR that she did not
authorize any of the lawyers to dismiss her
constructive discharge claim, all three
lawyers agreed that they could not ethically
pursue the
claim because there was not sufficient
evidence to support her constructive
discharge claim and
she had not exhausted her administrative
remedies prior to filing the complaint.
During the January 14 telephone call, Stern
also told opposing counsel that for all
intents
and purposes, he was off Client's case and
that opposing counsel should communicate only
with
Co-Counsel regarding Client's case. Stern did
not tell Client that for all intents and
purposes, he
was off Client's case. Between January 9 and
20, 2020, Stern communicated with Co-Counsel
and their
respective staff regarding a second amended
complaint that Stern believed that Co-Counsel
would be filing on Client's behalf.
Co-Counsel filed a notice of appearance with
the court on January 21, 2020, in which
they stated that Stern had hired them to
assist in Client's case. They did not file a
motion for
substitution or otherwise indicate to the
court that Stern should be withdrawn or
removed as
Client's counsel. Despite his statement to
opposing counsel on January 14, Stern did not
file a
motion to withdraw and he remained counsel of
record with the court at all times relevant
to this
matter.
On January 23, 2020, Co-Counsel filed a
motion for leave to file Client's second
amended complaint and the proposed second
amended complaint. Co-Counsel failed,
however,
to file a brief in support of their motion as
required by the court's local rules. There is
no
evidence that Co-Counsel consulted with Stern
regarding the version of the second amended
complaint Co-Counsel filed with the court,
that they showed Stern the proposed motion,
or that
Stern had a role in their failure to file a
brief in support of the motion.
On January 23 and 24, 2020, opposing counsel
engaged in settlement negotiations with
Co-Counsel, but Client rejected her former
employer's highest settlement offer. On
January 24, 2020, opposing counsel filed his
client's motion for summary judgment with
supporting brief and materials.
After January 15, 2020, Stern contacted Co-
Counsel several times regarding the status of
Client's case, settlement negotiations, and
other issues, but they did not respond to all
of his
inquiries or provide him with sufficient
information for Stern to maintain an accurate
and
contemporaneous understanding of Client's
case or to allow Stern to actively
participate inresponding to the opposing
party's motion for summary judgment. Stern
told OLR that shortly
after they began representing Client, Co-
Counsel cut him out of the process of
representing
Client and refused to provide him with
updates as to the status of Client's case.
On February 11, 2020, Client called Stern
four times regarding her case. Stern did not
answer or return her calls. Instead, Stern
emailed one of the Co-Counsel to inform him
of
Client's calls. Stern told him that he did
not return Client's calls because he knew Co-
Counsel
were working on the response to the motion
for summary judgment; Stern did not have
substantive information to share with Client;
and, Stern did not want to undermine Co-
Counsel's
communications and relationship with Client.
Stern also provided his assessment of
Client's case
and described the affidavits he believed
should be filed in support of her brief
opposing the
motion for summary judgment.
Between February and June 2020, Client
continued to contact Stern for information
about
her case and to discuss with him concerns she
had regarding the case. Stern continued to
discuss
the case with Client and to at times relay
information to and from her and Co-Counsel.
Stern did
not tell her that Co-Counsel had cut him out
of the representation, that they were
refusing to
provide him with information or allow him to
participate in representing her, or that he
believed
that his representation of her had
effectively ended.
On February 13, 2020, opposing counsel filed
a brief in opposition to Client's motion for
leave to file an amended complaint.
On February 14, 2020, Co-Counsel filed
Client's brief in opposition to the motion
for
summary judgment. While the brief and
supporting materials were defective or
inadequate in
several respects, there is no evidence that
Stern had a role in preparing, reviewing, or
filing the
brief and supporting materials. On February
25, 2020, opposing counsel filed a reply
brief in support of the motion for
summary judgement.
On March 30, 2020, one of the Co-Counsel
expressed to Stern that both Co-Counsel did
not believe that Client had a good case.
Stern responded by email that he had met with
Co-Counsel and discussed Client's case with
Co-Counsel numerous times and that Stern
believed
that she did have a good case to prove
religious discrimination.
On April 9, 2020, Stern again
told Co-Counsel by email that he believed
that Client had a good case.
Stern did not resume the lead role in
representing Client or communicate to Client
that
Co-Counsel did not believe that she had a
strong case.
Between April 22, 2020, and June 24, 2020,
Co-Counsel attempted to negotiate a
settlement with opposing counsel. Ultimately,
Client authorized Co-Counsel to accept a
settlement only if she would receive at least
a certain amount after payment of all legal
fees and
costs.
On June 24, opposing counsel made another
offer to settle the case. Client rejected the
offer unless her former employer agreed to
also pay her legal fees, which it would not
do.
In approximately June 2020, one of the Co-
Counsel told Client that he believed that the
judge would likely grant the motion for
summary judgment. On June 26, Stern, on
behalf of
Client, emailed Co-Counsel to ask them to
consider filing a motion asking the court to
receive
audio recordings Client believed would be
beneficial to her opposition to the motion
for
summary judgment. One of the Co-Counsel
responded that they had determined that the
audio
recordings were "not of benefit" to her case
and that they would not be filing such a
motion.
On September 23, 2020, the court entered an
order adopting the parties' stipulation to
dismiss Client's constructive discharge
claims with prejudice; denying Client's
motion for leave
to file a second amended complaint; granting
the defendant's motion for summary judgment;
and, dismissing the remainder of Client's
claims with prejudice. One of the Co-Counsel
advised
Client and Stern by email that the court had
dismissed her case and that Co-Counsel did
not
believe an appeal would be successful. He
advised Client to consult with an appellate
attorney if
she wished to file an appeal.
By failing to diligently review Client's EEOC
complaints so that he could properly
identify the claims for which Client had
received a Right to Sue letter and so that he
could
provide Client with informed legal advice
regarding any potential constructive
discharge or
termination-based claims against her former
employer, Stern violated SCR 20: 1.3.
By failing to file a motion to withdraw, and
failing to tell Client that Co-Counsel had
cut
him out of the representation, he was
effectively unable to participate in the
representation, or
that he believed his representation of her
had effectively ended, Stern in each instance
violated
SCR 20: 1.16( d).
Stern has prior discipline.
Stern received private reprimands in 1988 for
communicating
on the subject of the representation with a
party he knew to be represented by a lawyer
without
the consent of that lawyer; 1993 for failing
to pay a third-party lien from settlement
proceeds
after receiving notice of the lien; and 2008
for committing criminal acts that reflected
adversely
on his honesty, trustworthiness, or fitness
as a lawyer. Stern was publicly reprimanded
in 1992,
Public Reprimand of Walter W. Stern, III,
1992-11; and in 2022, Public Reprimand of
Walter W.
Stern, Ill 2022-6. In 2013, the Supreme Court
of Wisconsin suspended Stern's license to
practice law for two years. Disciplinary
Proceedings Against Stern, 2013 WI 46. In
2021, the
Supreme Court suspended Stern's license for
60 days. Disciplinary Proceedings Against
Stern,
2021 WI 84.
In accordance with SCR 22.09(3), Attorney
Walter W. Stern, III, is hereby publicly
reprimanded.
Dated this 15th day of August, 2024.
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