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Atty. Wendy Patrickus (“Patrickus”), a
Wisconsin bar member since 1988, practices
law in Milwaukee, Wisconsin.
In 2003, an adult man hired
Patrickus, the Respondent, to represent him
in his armed robbery case.
Pursuant to a written fee agreement,
signed by the man on March 26, 2003,
Patrickus and her firm agreed to begin work
on the man’s case upon receipt of $5,000.
The agreement quoted no hourly rate and
included the following language:
• The Law Firm cannot predict or
guarantee what your final bill will be.
• The Law Firm will begin work on your
case upon receipt of $5,000.00. This sum
will be used to pay your fees and expenses
according to this Agreement.
• Add’l amount if a trial up to an
additional $5,000.
• The Law Firm will send you itemized
bills from time to time.
• You will be charged interest at a
yearly rate of 18% on any remaining balance
not paid within 30 days from the date of the
bill.
Patrickus noted on her copy of the
fee agreement a $1,500 payment on April 17,
2003, and a $1,000 payment on April 28,
2003. The man’s parents paid the $1,500
amount for the man although neither parent
signed the fee agreement.
By letter dated July 23, 2003
Patrickus gave notice to the man that she
intended to withdraw from the case if she
did not receive “the remainder of the
requisite down payment pursuant to our
contract of $2,500.00.” Whether the
remaining $2,500 of the initial $5,000 fee
was paid is a matter disputed between
Patrickus and the man.
The man’s father had posted a
$15,000 cash bond for the man on April 22,
2003. As a means of paying her legal fees,
Patrickus proposed that the man execute a
bail assignment. In a September 22, 2003
letter to the man, Patrickus stated:
Enclosed please find the Bail assignment
document we talked about. Please have your
wife sign it and be sure to bring it along
with you on Friday, September 26th to
court. If you forget this time, I will take
it as a sign that you no longer want me to
represent you.
On January 12, 2004, the man signed
a bail assignment that stated:
Now comes the above-named defendant and
for
value received hereby assigns $10,000.00 of
his interest in the case bail posted in the
above-entitled case and its proceeds to
Attorney Wendy A. Patrickus, of Milwaukee,
Wisconsin.
On April 16, 2004, the man pled no
contest and was found guilty of armed
robbery with use of force. On May 21, 2004,
the man was sentenced to seven years in
state prison and eighteen years extended
supervision beginning May 21, 2004.
Following the sentencing, while
still at the courthouse, Patrickus and the
man’s mother discussed hiring Patrickus to
appeal her son’s case. Details of their
discussion are disputed, however Patrickus
presented the man’s mother with the bail
assignment signed by the man on January 12,
2004. A modification was made by changing
$10,000.00 to $15,000.00. The man’s mother
signed, initialed, and dated the bail
assignment as modified. The man’s father
did not sign the bail assignment. The man
did not re-sign or initial the
modification.
On May 21, 2004, Patrickus filed the
bail assignment that had been signed by the
man and later by the man’s mother with the
clerk of circuit court in the county where
the case was prosecuted.
Pursuant to Wis. Stat. § 809.30(2)
(a) and (b), on May 26, 2004, Patrickus
filed the notice of intent to pursue post-
conviction relief, as required of the
attorney representing a person at
sentencing. She did no further work on the
appeal or any other matter for the man.
According to the man’s father,
immediately after his son’s trial on May 21,
2004, he was away on a planned trip from May
22, 2004 through May 29, 2004. During his
trip, his wife informed him that the Clerk
of Courts called for him to come and sign
the bail assignment. Upon return from his
trip, his wife informed him that their son
was going to ask someone other than
Patrickus to represent him on appeal and
that Patrickus never called back to make
arrangements to discuss an appeal or to sign
papers for the appeal. On June 1, 2004, the
Clerk of Courts refunded to the man’s father
$14,570.00 of the $15,000.00 cash bond he
posted for his son in April 2003.
On June 1, 2004, Patrickus noted on
her copy of the man’s fee agreement that
$7,500 was still owed.
Patrickus learned that she was
unable to collect money from the Clerk of
Courts on the bail assignment signed by the
man and his mother because only the father’s
signature was on the bail posting and the
man’s father had not signed the assignment.
Patrickus called the man’s father and mother
who confirmed that the man’s father recouped
the bail money.
With the exception of her July 23,
2003 letter to the man demanding the $2,500
remainder of the $5,000 down payment,
Patrickus never sent a bill to the man.
On or about June 22, 2004, Patrickus
contacted an attorney to pursue collection
of the monies Patrickus claimed that the man
and his parents owed.
On June 22, 2004, the attorney
representing Patrickus sent separate
collection letters to the man and to his
parents. The letter to the man stated
$15,453.38 was owed for past services
rendered by Patrickus. The letter to the
man’s parents stated $15,125.26 was owed for
breach of contract. The second letter
stated in part, “[The man’s mother] signed a
bail assignment which she [Patrickus] relied
on, to her detriment and was injured when
the monies were not turned over despite
written agreement to do so.”
Patrickus, on the advice of her
attorney, delayed filing suit against the
man for fees until the conclusion of his
criminal appeal. On February 15, 2007,
Patrickus, through her attorney, filed suit
against the man and his parents, seeking a
money judgment for her unpaid attorney’s
fees. The complaint stated that the man had
an outstanding balance of $15,000 as of May
21, 2004 and owed $9,018.90 in prejudgment
interest under the terms of the fee
agreement which provides for interest of
1.5% per month, 18% per year, and that his
parents failed to pay the $15,000 due as the
bail assignment and owed $2,226.57 in
prejudgment interest pursuant to Wis. Stat.
Sec 138.04, which provides for 5% interest
per year. In the complaint, Patrickus
asked for a judgment against the man for
$24,018.90, and for a judgment against his
parents for $17,226.57. The total judgment
requested was $41,245.47.
In a responsive submission to OLR
dated April 1, 2008, Patrickus provided an
itemized statement constructed in 2008,
which showed she would have earned fees of
$12,457.50 if charged at an hourly rate of
$150.00.
In correspondence dated April 17,
2008, OLR asked Patrickus to explain why she
pursued collection of $15,000 from the man
when she had been paid $2,500, had not
pursued his appeal for which her fee was
$5,000, and had noted on the fee
agreement, “6/1/04 $7500 to be paid yet.”
On May 16, 2008, Patrickus replied that she
pursued the stated amounts on the advice of
her attorney who was allegedly knowledgeable
on collection law, and she conceded that
she “was not entitled to an appellate fee
for a fee [sic] that I did not do.”
Patrickus further stated:
… [My attorney] explained to me that the
reason the amount shown was $15,000 was
because when he did the complaint he saw
that [the man’s parents] had initially
assisted their son with the fees and
subsequently signed the bail assignment.
Therefore, they could equally be held
accountable for my fees under the bail
assignment document, which was a separate
contract. As such, the contract amount was
for $15,000. Please note that, Although
[sic] the ultimate recovery should not have
included the additional amount contemplated
at the time for the appeal, I was told that
the cause of action could only proceed on
that document which reflected that
amount...There is a discrepancy. The only
explanation I can give at this point is that
I was owed $7,500 and there were additional
fees for the experts. I may have
guesstimated those fees and costs at 2,500.
In a letter to OLR dated July 28,
2008, Patrickus stated that she had not paid
any fees to experts used in the man’s case.
In her responsive submission dated
May 16, 2008, Patrickus asserted that she
did not send itemized billings to the man
because he had elected a flat fee and to the
extent the fee agreement expressed language
regarding itemized bills and an hourly fee,
she should have crossed out that language.
Patrickus further stated that there were
oral amendments to the original contract
which she should have reduced to writing and
that she did not have a formal contract with
the man for the appeal however she would
have entered into one with his parents at
the time of payment.
By letter dated July 14, 2008, OLR
asked Patrickus for further clarification or
documentation that she provided to the court
in her suit for fees to support her claim
that the man or his parents owed her
$15,000.00. In a responsive submission
dated July 29, 2008, Patrickus had her
attorney respond to the question. Her
attorney stated:
I am not sure what is being asked here
but
no documents were submitted to the Court
which would have discussed the basis for
claiming a fee of $15,000.00 other than the
Scheduling Conference Report which only
listed the $15,000.00 as a figure owed but
did not discuss the basis of how the
$15,000.00 came to be.
On April 14, 2008, Patrickus and the
man’s parents signed a settlement and
release in which the defendants paid $2,000
to Patrickus. On July 11, 2008, the court
ordered the lawsuit against the man
dismissed with prejudice.
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