Disciplinary Proceedings Against Siderits
2013 WI 2, 01/04/2013 (2013)
|
ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. In this disciplinary
proceeding, the referee concluded that the
Office of Lawyer Regulation (OLR) had proven
violations on all five counts contained in
the complaint filed by the OLR. Based on
those violations, the referee recommended
that Attorney Matthew C. Siderits' license
to practice law in Wisconsin be suspended
for 18 months. Attorney Siderits appeals
from the referee's report and recommendation.
¶2 After independently reviewing the
record, we determine that the facts as found
by the referee demonstrate violations of the
Rules of Professional Conduct for all five
counts alleged by the OLR. We conclude that
Attorney Siderits' professional misconduct
requires a 12-month suspension of his
license to practice law in this state. We
further conclude that Attorney Siderits
should be required to pay the full costs of
this proceeding, which were $18,916.68 as of
October 22, 2012.
¶3 On February 7, 2011, the OLR filed a
five-count complaint against Attorney
Siderits. This court appointed Attorney
James W. Mohr, Jr. as referee. The referee
held an evidentiary hearing on October 24
and October 25, 2011. Both parties
submitted post-hearing briefs.
¶4 The referee submitted a report
containing his findings of fact, conclusions
of law, and a recommendation for
discipline. The findings of fact and
conclusions of law are summarized below.
|
|
|
¶5 When reviewing the referee's report,
we will affirm the referee's findings of
fact unless they are found to be clearly
erroneous, but we will review the referee's
conclusions of law on a de novo basis.
See
In re Disciplinary Proceedings Against
Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125.
¶6 Attorney Siderits was admitted to
the practice of law in Wisconsin in 1996. A
Milwaukee firm named Otjen, Van Ert, & Weir
("the Firm") hired Attorney Siderits upon
his graduation from law school and made him
a shareholder on January 1, 2004. Attorney
Siderits was also the Treasurer of the Firm,
worked with the Firm's bookkeeper, and as
Treasurer was responsible for approving all
final compensation distributions to
shareholders of the Firm. Attorney Siderits
worked primarily in the area of workers
compensation defense. He remained Treasurer
up until the Firm terminated his employment
in June 2009.
¶7 The Firm had a compensation system
for shareholders which provided for a bonus
if a shareholder's billings exceeded 1,800
hours for that year. Lawyers at the Firm
typically entered their billable hours in
one of two ways. Some members of the Firm
filled out daily "time sheets" and their
assistants entered the billable hours into
the Firm's computerized billing system.
Other lawyers chose to enter their billable
time directly into the Firm's computerized
billing system. Toward the end of each
calendar year, the shareholders met to
review each shareholder's billable hours as
recorded in the Firm's computerized billing
system to determine whether the partner was
likely to meet the 1,800 hour bonus target.
The Firm closed its books for recording
billable time at the end of December. Once
the books were closed, the Firm's
partnership determined which partners were
entitled to receive the bonus and
distributed any bonuses just after the New
Year. As Treasurer of the Firm, Attorney
Siderits reviewed each of the computations
and signed off on the final distributions.
As a shareholder, Attorney Siderits
participated in each of these year-end
meetings and in bonus distributions for each
year he was a partner from 2004 through his
termination in 2009.
¶8 Attorney Siderits knew that his
eligibility for a bonus hinged on recording
1,800 billable hours in the Firm's
computerized billing program. His actions
in 2004 illustrate his attentiveness toward
the 1,800 hour bonus target. That year,
Attorney Siderits' first year as a partner,
his total billings fell slightly short of
1,800 hours. Attorney Siderits nevertheless
asked the Firm to allow him to participate
in the bonus pool because he had spent a
considerable amount of time working on the
Firm's computer system. The members of the
Firm agreed and credited him an additional
44 hours of "firm" time for his computer
work, thus bringing his total hours in
excess of 1,800 for 2004, and allowing him
to participate in the bonus program for that
year.
¶9 In both 2007 and 2008, Attorney
Siderits allegedly recorded in excess of
1,800 hours (1,803.3 hours in 2007 and
1806.3 hours in 2008). Because his recorded
billable hours exceeded 1,800 hours,
Attorney Siderits participated in the bonus
system in 2007 and 2008, earning an
additional $23,451.12 bonus in early 2008
for his 2007 billings and $23,526.92 in
early 2009 for his 2008 billings. Combined,
these bonuses totaled $46,978.04.
¶10 After the Firm paid Attorney
Siderits each of the bonuses, but before the
Firm mailed his bills to his clients,
Attorney Siderits reduced, or "wrote-down,"
certain of his billable hours for the years
for which the bonuses were paid. In early
2008 Attorney Siderits wrote-down 29.2 hours
of time from his 2007 billings without
notifying the Firm. These write-downs
caused Attorney Siderits' 2007 billables to
drop about 25 hours below the 1,800 level.
In early 2009 Attorney Siderits wrote-down
231.9 hours from his 2008 billings, again
without notifying the Firm. These write-
downs caused Attorney Siderits' 2008
billables to drop below 1,600 hours.
¶11 As mentioned, Attorney Siderits made
his biggest write-downs in early 2009, from
his 2008 billings. Many of the write-downs
were for a case identified in the record as
Matter "A"——a brief in a workers
compensation matter that Attorney Siderits
mailed to the Labor and Industry Review
Commission (LIRC) on January 9, 2009.
Although the brief spanned only 17 pages,
Attorney Siderits billed a total of 140
hours on this brief in 2008. Of that
amount, Attorney Siderits billed 105.7 hours
in November and December 2008——even though
the brief was not due until January 9, 2009;
even though the case already had been
briefed once before to an administrative law
judge (ALJ); and even though Attorney
Siderits took a significant portion of the
final brief directly from a memorandum
prepared by an associate, who billed
separately. Attorney Siderits recorded 9.1
hours on the brief on Christmas Eve day
2008. In February and March of 2009,
Attorney Siderits deleted all 105.7 hours
that he had billed on the brief in November
and December.
¶12 Attorney Siderits made similar
changes to other matters billed in 2008,
identified in the record as Matters "B"
through "J." For example, Matter "H" had a
time entry of 80 hours entered into the
system on December 10, 2008, for work
allegedly performed over ten months earlier,
on January 23, 2008, virtually all of which
was deleted on January 30, 2009.
¶13 The total of all time entered by
Attorney Siderits into the billing system in
the last three months of 2008 was 239.6
hours; the total amount of time deleted in
the first three months of 2009 was 231.9
hours. Thus, only 7.7 hours of all hours
that Attorney Siderits recorded in the last
three months of 2008 were actually charged
to a client.
¶14 Attorney Siderits engaged in
similar, but not as extensive, write-downs
for billings in 2007. He entered 1,803.3
hours himself into the billing system for
2007, but after his write-downs, his actual
cumulative total for that year was 1.774.1
hours.
¶15 It is undisputed that Attorney
Siderits personally entered all of these
charges directly into the Firm's computer
system (that is, he did not work through his
assistant or the bookkeeper) and that he
likewise deleted all of these time charges
himself, again without notifying his
assistant or the bookkeeper. This was not
the typical manner of editing bills at the
Firm. The Firm's bookkeeper testified that
the normal practice at the Firm was for her
to generate written "pre-bills" at the first
of each month and pass them out to the
attorneys. The attorneys would then edit
and return them to her. She would make any
necessary changes and produce the final
bill. She said that Attorney Siderits was
always very prompt in returning the written
pre-bills with any changes. She was not
aware that Attorney Siderits was revising
bills himself within the system.
¶16 In 2009 the Firm discovered Attorney
Siderits' 2007 and 2008 billing conduct and
terminated him. He forfeited his interest
in the Firm's profit sharing plan. He also
repaid the Firm a total of $60,000 to
compensate the Firm for the bonuses to which
he was not entitled and for other
unspecified damages claimed by the Firm.
|
|
|
¶17 This proceeding followed. The OLR's
complaint contained the following counts:
• Count One alleged that Attorney
Siderits' purported misrepresentation of
billable hours for 2007 violated SCR 20:8.4
(c).
• Count Two alleged that the same
misrepresentation in 2008 violated SCR 20:8.4
(c).
• Count Three alleged that by making
changes in the Firm's accounting system and
deleting billable time without advising any
other members of the Firm, Attorney Siderits
violated SCR 20:8.4(c).
• Count Four alleged that by failing
to disclose that the write-downs rendered
him ineligible for the bonuses in 2007 and
2008, Attorney Siderits violated SCR 20:8.4
(c).
• Count Five alleged that by
misrepresenting his billable time in order
to receive $46,978.04 in bonuses to which he
was not entitled, and by circumventing the
Firm's bookkeeper to prevent disclosure of
his conduct, Attorney Siderits violated his
fiduciary duty owed to his Firm and his duty
of honesty in his professional dealings with
the Firm in violation of SCR 20:8.4(f).
¶18 In his answer to the OLR's
complaint, Attorney Siderits made several
admissions. He admitted that he was an
officer and shareholder of the Firm. He
admitted that the amounts he billed in the
Firm's computer system for 2007 and 2008
were as described above. He admitted that
the Firm's bonus system worked as described
above. He admitted that he did not advise
any of the other shareholders in the Firm
that he had written down his time. He
admitted that the Firm discharged him for
allegedly being paid compensation for which
he may not have been entitled. He admitted
that attorneys have a fiduciary duty to
their law firms and a duty of honesty in the
professional dealings with their law firms.
¶19 Attorney Siderits denied any
allegations of wrongdoing in his answer. He
claimed that, at the time he made the write-
downs, he did not know that he thereby
became ineligible for the bonuses. He
denied that his actions constituted
misconduct. He noted that no clients of the
Firm, or the Firm itself, suffered any
financial loss and that he and the Firm have
entered into a settlement agreement
resolving all disputes between them. He
alleged that this case was merely a matter
of a contractual dispute with the Firm over
compensation and should not be viewed as an
ethical issue.
¶20 Attorney Siderits testified at the
ensuing disciplinary hearing before the
referee. Attorney Siderits admitted that he
did not actually bill 1,800 hours in either
2007 or 2008. He also admitted that he was
not entitled to receive the bonuses in
question, but contended he did not know, at
the time he wrote-down the time in the
computer system, that the effect would be to
disqualify him from the bonuses. He also
admitted that he never told anyone else in
the Firm that he wrote-down his time for
either 2007 or 2008. He admitted that he
entered all of the write-downs directly into
the computer system so that neither his
assistant nor the bookkeeper was aware of
the write-downs. He agreed that he wrote-
down about 29 hours in 2007 and about 230
hours in 2008. He claimed it took him 140
hours to produce the 17-page brief in
Matter "A" even though, in his estimation,
an average brief to LIRC normally would take
about 20 to 25 hours. He denied inflating
his time when billing Matter "A" and claimed
that the case involved an unusually
difficult workers compensation defense claim
and that he was under pressure from his
client to win. Attorney Siderits could not
explain why many of the hours he entered in
2008 were entered well after the claimed
date of service.
¶21 The referee was not persuaded by
Attorney Siderits' defense. He wrote in his
report:
The issue in this case really
wasn't
about the facts of the write downs. They
were undisputed. The issue is whether they
were intentional and whether OLR has met its
burden of proof that Siderits engaged in
conduct "involving dishonesty, fraud, deceit
or misrepresentation." Siderits argues that
he, and all attorneys, are justified in
writing down time on their bills, and in the
exercise of that right, he simply did not
realize that he fell below the 1,800 hour
threshold for the bonus payments which he
received.
In my opinion, that position
simply
does not square with reality. If there had
been an occasional write down here or there,
and if they had been minimal, I do not think
this matter would ever have been charged.
The size of the write downs, the number of
write downs, and their timing, all point to
the obvious conclusion that Siderits was
manipulating his billing records for the
sole purpose of achieving a bonus. That
conclusion is inescapable. To ignore the
numerous and substantial transactions put
into evidence is impossibly unrealistic.
¶22 The referee believed the most
damning evidence of wrongdoing was Attorney
Siderits' time-recording for 2008. Focusing
on Attorney Siderits' billings for
Matter "A," the referee wrote:
[I]t is inconceivable to me that an
experienced attorney could expect anyone to
believe that he spent 140 hours on a
relatively straightforward brief; especially
since the matter had been fully briefed
previously and the new brief was
substantially based on the work of an
associate. His protestations to the
contrary are simply not credible.
Furthermore, his time on that brief was
entered late in the year, at times one would
not normally expect an attorney to be
working on the brief, in large quantities,
and entered days and weeks after the work
was allegedly performed. The same amounts
were then routinely deleted following the
end of the year, without following the
normal procedure of deleting them on the
paper pre-bills. Siderits entered the
computer system himself, telling no one, and
deleted all of the time that he entered.
The time he ultimately billed the client was
within the realm of reason, and consistent
with what two other attorneys testified
should be the time for such a brief. He
never discussed with his partners any of the
massive write downs that he did on
Matter "A."
¶23 The referee wrote that this same
pattern existed for Attorney Siderits' other
write-downs for 2008:
Again, these were time entries, made
after
the fact and then written down after the
bonus was paid, bypassing the traditional
system of working through the bookkeeper.
This clandestine course of conduct leads to
no other reasonable conclusion but that
Siderits was inflating time to barely get
himself over the 1,800 hour mark, knowing
that the time would never be billed to
clients.
¶24 The referee also wrote that while
Attorney Siderits' write-downs for 2007 were
lesser in scope, "viewed from the
perspective of what was done in 2008, the
same conclusion [of misconduct] is
inescapable." Although in 2007 Attorney
Siderits was closer to achieving the 1,800
billable hour goal, and therefore he did not
have to inflate and write-down as much time,
he engaged in precisely the same conduct to
achieve the same result. The referee
wrote, "I might have difficulty finding a
pattern of dishonesty based upon 2007
alone. However, when viewed from the
perspective of what happened in 2008, the
same conclusion about 2007 becomes perfectly
obvious."
¶25 The referee ultimately determined
that Attorney Siderits committed all five
counts of alleged misconduct. With respect
to the discipline to be imposed, the referee
found the following aggravating factors to
be present: a dishonest or selfish motive,
a pattern of misconduct, and a refusal to
acknowledge the wrongful nature of the
conduct. The referee found the following
mitigating factors to be present: the
absence of a prior disciplinary record, a
timely good faith effort to make restitution
or to rectify the consequences of
misconduct, a cooperative attitude toward
the disciplinary proceedings, and good
character or reputation. The referee
ultimately recommended an 18-month
suspension. He did not comment on costs.
He did not recommend restitution, nor did
the OLR request it, in light of Attorney
Siderits' $60,000 payment to the Firm
following his termination.
¶26 Attorney Siderits appeals from the
referee's report and recommendation. He
first disputes the referee's determinations
that he violated SCR 20:8.4(c) by engaging
in conduct involving dishonesty, fraud,
deceit or misrepresentation, and that he
violated SCR 20:8.4(f) by breaching the
conduct rule set forth in precedent
describing a lawyer's fiduciary duty to his
law firm and his duty of honesty in his
professional dealings with it. See, e.g.,
In re Disciplinary Proceedings Against
Shea,
190 Wis. 2d 560, 527 N.W.2d 314 (1995).
Attorney Siderits argues that he is innocent
of such misconduct because the Firm lacked a
written policy limiting his ability to write-
down his bills.
¶27 We disagree. As the referee
recognized, this case does not turn on the
bare fact that Attorney Siderits wrote-down
his time; if Attorney Siderits had made
occasional, modest write-downs which did not
affect his eligibility for a bonus, this
misconduct case would not exist. At issue
here is whether Attorney Siderits was
manipulating his billing records for the
sole purpose of achieving a bonus. The
answer to this question, according to the
referee, is an unequivocal yes; the referee
determined that Attorney Siderits' arguments
to the contrary were not credible——a
determination which we will not disturb.
See In re Disciplinary Proceedings
Against
Arthur, 2005 WI 40, ¶53, 279 Wis. 2d 583,
694 N.W.2d 910. It is obvious that with or
without a written Firm policy,
misappropriating Firm funds through billing
sleight of hand is inimical to the best
interests of the Firm, the public, and the
profession, and, as such, constitutes
misconduct.
|
|
|
¶28 Attorney Siderits next argues that
his due process rights have been violated by
this proceeding in two respects. First, he
claims that in the absence of a formal Firm
policy governing write-downs, he reasonably
could not have known his actions to be
wrong. Second, he argues that he was
unaware of such cases as In re
Disciplinary
Proceedings Against Shea, 190 Wis. 2d 560,
527 N.W.2d 314 (1995), which holds that a
lawyer has a fiduciary duty to his law firm,
or In re Disciplinary Proceedings Against
Casey, 174 Wis. 2d 341, 496 N.W.2d 94
(1993), in which this court pledged to treat
lawyers' misappropriation of law firm funds
no differently than misappropriation of
client funds.
¶29 We reject these arguments. We
already have commented on the absolving
effect of the absence of a formal Firm
policy governing write-downs: none. Once
again, this case does not turn on the bare
fact that Attorney Siderits wrote-down his
time; this case is about Attorney Siderits
abusing his write-down discretion and lying
to his law partners in order to collect
almost $47,000 in bonuses to which he was
not entitled. Attorney Siderits cannot
seriously contend that firms must have a
written policy forbidding stealing and lying
before a misconduct charge for one of these
actions can be sustained. As to Attorney
Siderits' ignorance-of-the-law defense, we
emphatically reject it. To allow an
ignorance-of-the-law excuse in lawyer ethics
cases would encourage and reward
indifference to the ethics code and the
cases interpreting it, a pernicious
outcome. In any event, the injunction
against stealing from one's own law firm is
not an abstract one, and this court has
stated it clearly and repeatedly. In re
Disciplinary Proceedings Against Russell,
216 Wis. 2d 488, 489, 574 N.W.2d 247 (1998)
("We treat a lawyer's misappropriation of
law firm funds as we do misappropriation of
funds belonging to a client") (citing
Casey); In re Disciplinary Proceedings
Against Olson, 216 Wis. 2d 483, 484, 574
N.W.2d 245 (1998) ("We have stated on prior
occasion that a lawyer's misappropriation of
funds belonging to a law firm where that
lawyer is employed is to be treated no
differently than misappropriation of funds
belonging to the lawyer's client") (citing
Casey). Attorney Siderits should have
known
better.
¶30 Attorney Siderits also challenges
the recommended sanction. He claims that
the referee, in recommending an 18-month
suspension, was laboring under the
misimpression that an 18-month suspension
was the mandatory minimum suspension under
our case law for the misconduct at issue
here. He claims that if any sanction is
necessary, it should either be a public
reprimand or a two- to six-month
suspension.
¶31 We disagree on both counts. The
referee clearly, and correctly, believed
that an 18-month suspension was within the
wide range of sanctions imposed in previous,
arguably similar misappropriation cases.
In
re Disciplinary Proceedings Against
Peterson, 2006 WI 41, 290 Wis. 2d 74, 713
N.W.2d 101 (two-year license suspension
justified when lawyer misappropriated over
$26,000 in client funds, pawned law firm
property, and admitted to criminal use of
cocaine); In re Disciplinary Proceedings
Against Schaller, 2006 WI 40, 290 Wis. 2d
65, 713 N.W.2d 105 (two-year license
suspension justified when lawyer improperly
converted at least $4,290.85 from payments
made by various clients, failed to report
those funds as income on his federal and
state income tax returns, and engaged in the
practice of law while his license was
suspended); In re Disciplinary Proceedings
Against Shea, 190 Wis. 2d 560, 527 N.W.2d
314 (1995) (six-month license suspension
justified when lawyer kept a $75,000 legal
fee which should have been turned over to
his law firm, misrepresented to his partners
that he had not sent a client an invoice for
services and had not been paid, and
misrepresented the quality of work of
another attorney in the firm for purposes of
his own financial gain); In re
Disciplinary
Proceedings Against Curran, 180 Wis. 2d
540,
509 N.W.2d 429 (1994) (two-year suspension
justified when lawyer paid himself $56,000
in management fees related to an office
building owned by law firm partners without
informing partners of fees, and diverted
over $90,000 in client payments to his own
personal account); In re Disciplinary
Proceedings Against Casey, 174 Wis. 2d
341,
496 N.W.2d 94 (1993) (60-day suspension
justified when lawyer misappropriated three
client retainers, totaling $2,300, rather
than turning them over to his firm); In re
Disciplinary Proceedings Against
Kerzisnik,
167 Wis. 2d 713, 482 N.W.2d 897 (1992)
(license revocation justified when lawyer
misappropriated over $10,000 by improperly
converting airline tickets paid for by his
law firm and billed to its clients,
diverting client and settlement funds
intended to pay for law firm services, and
attempting to charge clients for expenses
not incurred and for legal work not
performed).
¶32 Although it is difficult to compare
disciplinary cases because of the unique
facts of each, it is clear that the
sanctions Attorney Siderits seeks——either a
public reprimand or a two- to six-month
suspension——would be inadequate. We must
impose the discipline needed to protect the
public, the courts, and the legal system
from Attorney Siderits' repetition of
misconduct, to impress upon him the
seriousness of his misconduct, and to deter
other attorneys from engaging in similar
misconduct. See In re Disciplinary
Proceedings Against Arthur, 2005 WI 40,
¶78,
279 Wis. 2d 583, 694 N.W.2d 910.
Considering these factors, we conclude that
more than a reprimand or minimal license
suspension is required, especially in light
of the seriousness of Attorney Siderits'
misconduct, the pattern of misconduct he
displayed, and his adherence to an
exculpatory explanation for his actions that
his law partners, the referee, and this
court all found implausible.
|
|
|
¶33 However, given the unique
circumstances of this case, and
acknowledging that the imposition of
discipline in attorney disciplinary cases is
not an exact science, we believe that the
recommended 18-month license suspension is
not quite necessary. We conclude that a 12-
month license suspension is sufficient to
advance the objectives of lawyer
discipline. This is so due to the number of
mitigating factors that appear in the
record. Attorney Siderits has no previous
disciplinary history. He lost his job with
the Firm. He paid $60,000 to the Firm to
compensate for the bonuses to which he was
not entitled and for other unspecified
damages claimed by the Firm. He forfeited
his interest in the Firm's profit sharing
plan. As explained below, these
disciplinary proceedings have been costly to
Attorney Siderits. We are persuaded that,
given these particular circumstances,
Attorney Siderits understands the
seriousness with which this court views his
conduct, and he will not likely repeat it.
¶34 Finally, we address the issue of
costs, which total $18,916.68 as of October
22, 2012. Attorney Siderits has made no
objection to their full imposition. 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. We follow that policy here.
¶35 IT IS ORDERED that the license of
Matthew C. Siderits to practice law in
Wisconsin is suspended for a period of one
year, effective February 4, 2013.
¶36 IT IS FURTHER ORDERED that Matthew
C. Siderits shall comply with the
requirements of SCR 22.26 concerning the
duties of a person whose license to practice
law in Wisconsin has been suspended.
¶37 IT IS FURTHER ORDERED that within 60
days of the date of this order, Matthew C.
Siderits shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶38 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.29
(4)(c).
¶39 SHIRLEY S. ABRAHAMSON, C.J.
(dissenting). I agree with the
referee's
recommendation of an 18-month suspension of
Attorney Siderits' law license as
appropriate discipline. Accordingly, I
dissent.
|
|
|