OLR Compendium > Public Reprimand of James J. Ermert

Public Reprimand of James J. Ermert

2003-10

This Reprimand is based upon Attorney James J. Ermert’s representation of two clients in two separate matters. In the first matter, the personal representative of an estate retained Atty. Ermert to probate a small estate on August 14, 1997. There was no written fee agreement. On October 16, 1997, Atty. Ermert filed an application for informal administration. On October 31, 1997, the personal representative opened a checking account for the estate into which she deposited the estate’s funds. She pre- signed two blank checks from the estate’s checking account and left them with Atty. Ermert. Atty. Ermert told the personal representative that he would use them to pay estate expenses.

On November 4, 1997, Atty. Ermert made one of the pre-signed checks payable to himself for $2000 and cashed it. “Retainer” was written on the memo line. Atty. Ermert did not obtain the personal representative’s consent to withdraw these funds from the estate checking account at the time nor did he advise the personal representative of the amount of the fees he intended to withdraw or when he was going to withdraw them.

On May 21, 1998, the probate court issued an order to show cause why the inventory had not been filed within six months of issuance of the domiciliary letters. At the hearing on the order to show cause on July 8, 1998, Atty. Ermert told the court that he had faxed the inventory to the personal representative. At a subsequent hearing on October 9, 1998, Atty. Ermert told the probate court that he had been in contact with the personal representative and should be able to file the inventory soon. At a review hearing on July 12, 1999, Atty. Ermert told the probate court that the inventory would be filed within the week; however, the general inventory wasn’t filed until October 11, 1999.

On December 11, 1998, Atty. Ermert made the second pre-signed check payable to himself in the amount of $2000 and cashed it. Atty. Ermert did not obtain the personal representative’s consent to withdraw these funds from the estate checking account at the time nor did he advise the personal representative of the amount of the fees he intended to withdraw or when he was going to withdraw them.

On April 29, 1999, the probate court issued an order to show cause why the estate had not been closed within eighteen months of filing. At the June 11, 1999 order to show cause hearing, the court gave Atty. Ermert until July 9, 1999 to file the final account and petition for approval of distribution. Atty. Ermert failed to file either the final account or the petition by July 9, 1999. At an October 11, 1999 review hearing, the court extended the time until October 29, 1999 for Atty. Ermert to file the petition. Atty. Ermert failed to file the petition by October 29, 1999.

On March 15, 2000, after Atty. Ermert failed to appear at a review hearing on March 13, 2000, the probate court issued an order for appearance requiring Atty. Ermert to appear on March 31, 2000. On March 31, 2000, Atty. Ermert provided the court with a partially completed final account. The final account was returned to Atty. Ermert for completion and the matter was rescheduled for a review hearing on May 5, 2000.

On May 5, 2000, the personal representative attended the review hearing after receiving a letter from the probate court that stated that she needed to appear in person. Prior to the hearing, she obtained bank statements and copies of the two pre-signed checks that showed that both checks had been made payable to Atty. Ermert in the amount of $2000. At the hearing, the judge, the personal representative and Atty. Ermert discussed the two payments to Atty. Ermert off the record. As a result, the judge removed Atty. Ermert as the attorney for the estate and ordered him to pay successor counsel’s fees. In a letter dated May 5, 2000, the successor counsel, on behalf of the personal representative, demanded that the entire $4,000 be returned to the estate. On May 8, 2000, Atty. Ermert refunded the entire $4,000 to the estate.

By failing to close the probate of the estate for over 30 months, Atty. Ermert failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. By not obtaining authorization from the personal representative to withdraw the funds from the estate’s checking account at the time the checks were written, Atty. Ermert failed to reach an agreement with the personal representative regarding: (1) his right to look to the estate funds for the payment of his fees; (2) the amount to which he was entitled; and (3) the time at which payment would be expected, in violation of SCR 20:8.4 (f) in conjunction with Disciplinary Proceedings Against Marine, 82 Wis.2d 602, 264 N.W.2d 285 (1978).

In the second matter, Atty. Ermert represented a defendant in a criminal case. The defendant paid Atty. Ermert $2,000. Atty. Ermert filed a motion to suppress defendant’s statements to the police. The trial court granted defendant’s motion and the state appealed the trial court’s decision.

Respondent’s (defendant’s) appellate brief was initially due on May 22, 2002. On May 20, 2002, Atty. Ermert filed a motion for enlargement of time until June 12, 2002 to file a respondent’s brief, which was granted. On June 13, 2002, Atty. Ermert filed a second motion for enlargement of time until July 3, 2002 to file a respondent’s brief, which was also granted. On July 3, 2002, Atty. Ermert filed a third motion for enlargement of time. The court of appeals granted an extension until July 24, 2002 and stated that if a respondent’s brief was not filed by that date, the appeal would be submitted for a decision without a respondent’s brief. Atty. Ermert did not inform the defendant about this third motion for enlargement of time.

Atty. Ermert failed to file a respondent’s brief by July 24, 2002 and did not inform the defendant that he did not file a brief. At a status conference on July 29, 2002, the defendant found out that a respondent’s brief had not been filed when the assistant district attorney stated so to the court. On September 14, 2002, Atty. Ermert refunded to the defendant the $2,000 she had paid him.

By failing to file a respondent’s appellate brief by July 24, 2002, Atty. Ermert failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. By failing to inform the defendant about the third motion for enlargement of time and by failing to inform her that he did not file a respondent’s appellate brief, Atty. Ermert failed to keep a client reasonably informed about the status of a matter, in violation of SCR 20: 1.4(a).

Both grievants have been notified in advance of this proposed stipulation. Thirty days have passed since they were notified. Neither has chosen to object in any way to the findings or the proposed agreed upon sanctions.

Under the circumstances presented, I find the stipulation and agreed upon sanctions to be a fair resolution of this matter

In accordance with SCR 22.09(3), Attorney James J. Ermert is hereby publicly reprimanded.