¶20 The OLR dismissed the remaining two counts of misconduct alleged in the complaint, saying the OLR director no longer believed that the OLR could prove either of those violations by clear, satisfactory, and convincing evidence.

¶21 In his report, the referee discussed the various witnesses who testified at the July 2, 2018 hearing. One of M.G.'s brothers and heirs testified by telephone and expressed his frustration over Attorney Morse's failure to handle key aspects of the estate and his failure to respond to the heirs' reasonable inquiries.

¶22 Attorney Larson testified at the hearing. The referee said Attorney Larson "seemed genuinely offended" by Attorney Morse's conduct, calling the conduct "inexcusable" and damaging to the public's perception of the legal profession.

¶23 Attorney Morse testified at the hearing that he has been an attorney for 39 years and practices primarily in the areas of tax, estate planning, and estate administration. Although in the past he worked with a number of large firms in the Milwaukee area, he has been a solo practitioner since 2011. The referee said that Attorney Morse testified in a sincere and forthright manner and sounded quite embarrassed and genuinely remorseful about what he had done. The referee said to Attorney Morse's credit, he did not deny the facts of the case or the ethical and moral lapses those facts represented. He admitted he had done something wrong and said the entire matter had cost him over $80,000 and was an embarrassment to him and his family. He emphasized he would never again act as a personal representative.

¶24 The referee noted that Attorney Morse offered several mitigating explanations for his misconduct. He said he had to travel to Florida on numerous occasions to help his elderly mother. He said he was suffering from several medical conditions that caused extreme pain in his lower back. He admitted perhaps overusing drugs and alcohol to help deal with the pain, and he said the pain caused him to lose sleep and caused an inability to concentrate at work. Attorney Morse testified he had back surgery in May of 2017 and the pain went away almost entirely.

¶25 Attorney Morse also said his automobile was stolen in June of 2014 and included in the items of personal property in the car at the time were files, including much of the file for the M.G. estate. Attorney Morse testified that he had signed a personal signature bond as personal representative of the M.G. estate in the amount of $50,000. The referee said Attorney Morse readily admitted to comingling estate funds with his personal and business accounts and justified that behavior by saying that, in light of the signature bond, he was ultimately responsible for the full value of the estate and that it did not matter if he used estate funds so long as he was ultimately "good for it."

¶26 Attorney Morse was charged with five felonies and three misdemeanors over his handling of the M.G. estate funds. The referee noted that the criminal case was resolved by a plea agreement under the terms of which the felony counts were dismissed and Attorney Morse pled guilty to three counts of theft (embezzlement), Class A misdemeanors, on January 7, 2018. As part of the plea agreement, Attorney Morse agreed that he would not oppose the district attorney's recommendation that, as a condition of probation, Attorney Morse be prohibited from practicing law for a period of two years. Attorney Morse also agreed to repay to the heirs and the estate an additional $10,710.17 in interest and attorney's fees. He has repaid that amount.

¶28 The referee noted that this case presented certain aggravating and mitigating circumstances. The referee said the aggravating circumstances present were a dishonest or selfish motive, a pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The referee identified as mitigating factors the absence of any prior disciplinary record, personal or emotional problems, a timely good faith effort to make restitution, cooperation with the OLR, character or reputation, and remorse. The referee said although Attorney Morse testified about medical and treatment issues related to back pain, the referee did not take those issues into account when deciding the appropriate sanction because there was no testimony or evidence sufficient to find a causal connection between any medical condition and the misconduct.

¶29 The referee said in arriving at a recommendation for discipline, it was worth noting that Attorney Morse had previously agreed to a plea agreement in the criminal case which included his agreement not to practice law for a period of two years, although the sentencing court did not impose that condition as part of the sentence. The referee said this case involves serious misconduct and although the referee believed it was unlikely that Attorney Morse's misconduct would recur, "nevertheless damage has been done to the public, the courts, the clients, and to the legal system and should not go unpunished." The referee said attorneys with Attorney Morse's level of experience should certainly understand that they are not supposed to comingle client trust funds with their own funds; that when called to account they must understand they cannot be allowed to wait until a court orders reimbursement; and that they must serve the public competently and promptly so that public trust in attorneys is maintained.

¶30 The referee discussed a number of prior disciplinary cases that involved misuse or conversion of client funds and concluded that the fact situation here was similar to that presented in In re Disciplinary Proceedings Against Krezminski, 2007 WI 21, 299 Wis. 2d 152, 727 N.W.2d 492. Attorney Krezminski was the personal representative of an estate and took possession of $37,000 in funds from the estate. He began using some of the funds himself and was only able to forward approximately $16,000 of estate funds when the sole heir of the estate demanded payment. Attorney Krezminski ultimately paid the balance of the funds, plus interest, to the heir. Attorney Krezminski also failed to keep a different client informed of the status of his case. Attorney Krezminski had previously been privately reprimanded. This court suspended his license to practice law for two years. The referee concluded that Attorney Morse's conduct warranted a similar sanction. The referee again noted that, as part of his plea agreement, Attorney Morse had been willing to accept, as a condition of his sentence in the criminal case, a two-year suspension of his law license.

¶31 In his appeal, Attorney Morse argues that a two-year suspension is excessive and a public reprimand would be appropriate. In the alternative, he says that if a suspension is to be imposed, the suspension should not exceed 60 days.

¶32 Attorney Morse argues that the relevant mitigating factors weigh in favor of a much lesser sanction than that recommended by the referee. He points out he has no prior discipline, either in Wisconsin or in the other jurisdictions where he is admitted to practice law. He asserts that there was no dishonest or selfish motive and although he did mishandle the estate funds, "at the time he regarded it as a harmless convenience." Attorney Morse says at the time he was handling the M.G. estate he was under significant stress, was new to solo practice, was trying to run offices in two states, and was helping his elderly mother. He says in the midst of all those events, his car, which contained the M.G. estate file, was stolen. He says there is no allegation that any of the heirs received less money than they should have in the absence of his misconduct. He says he cooperated fully with the disciplinary process and freely entered into the stipulation. He says while he questions the validity of the criminal charges he does not question the fact that he did violate this court's rules of professional responsibility.

¶33 Attorney Morse describes himself as "an upstanding member of the community, a highly competent attorney, a good person, and a beloved family member." While he agrees that his back pain did not directly cause the misconduct, he says "there is good reason to conclude that adding pain, medication, and sleep deprivation to an otherwise high-stress period in Attorney Morse's life temporarily eroded his good judgment." He says that he has already been sanctioned by virtue of the criminal conviction. He says the Florida attorney regulatory authorities were notified about this case, his law license has been suspended in Florida, and it appears all but certain that he will be disbarred there. He notes that this case has been the subject of newspaper articles, which have caused him embarrassment. He says he is remorseful. He says he is not appealing the sentence in the criminal case, but he is appealing whether the transfers he made as personal representative constitute the crime of theft under Wis. Stat. § 943.20(1)(b).

¶34 Attorney Morse cites a number of cases in which attorneys who mishandled or converted client funds received sanctions less than a two-year suspension. Attorney Morse argues that the two-year suspension recommended by the referee "is drastic overkill."

¶35 Attorney Morse faults the referee for saying that Attorney Morse, as part of the plea agreement, agreed "not to practice law for a period of two years." Attorney Morse says the actual terms of the plea agreement were that he would not oppose the State's request for such a condition. While he says if the sentencing court had imposed that condition he would have complied with it, he asserts his attorney advised him it was improbable the condition would be imposed and indeed it was not.

¶36 Attorney Morse also faults the referee for attaching significance to the fact that Attorney Morse failed to turn over estate records when ordered to do so by the probate court. He says those findings by the referee overlooked the fact that Attorney Morse's car, with the estate file in it, had been stolen, which left him with no ability to provide the estate records. While he says the referee is also correct that he did not make payment to the heirs until a court ordered him to do so, that was because he did not know what amount to pay. He says it is undisputed that once Attorney Larson provided his accounting to the probate court, Attorney Morse promptly paid the amount ordered. Attorney Morse says while the referee does not indicate to what degree the terms of the plea agreement and the failure to turn over records and make repayment to the estate played a role in the recommendation for a two-year suspension, to the extent those factors are cited at all, they are inconsistent with the evidence.

¶37 The OLR argues that a two-year suspension is an appropriate sanction for Attorney Morse's admitted misconduct. The OLR notes that the primary goals of attorney discipline are to address the seriousness of the misconduct; to protect the public, courts, and the system from repetition of misconduct; to impress upon the attorney the seriousness of the misconduct; and to deter other attorneys from engaging in similar misconduct. In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279 Wis. 2d 583, 694 N.W.2d 910. The OLR says the referee's report was extremely thorough and well-reasoned.

¶38 The OLR says that Attorney Morse misappropriated more than $25,000 of the estate's funds for his own personal use. The OLR notes that while in his brief Attorney Morse tries to recast his criminal conversion of estate funds as a "harmless convenience" that lacked any dishonest or selfish motive, at the sanctions hearing he agreed that the mishandling of the funds involved intentional acts and was not just a function of sloppy recordkeeping.

¶39 The OLR says while Attorney Morse now complains that he was unable to calculate the amount due to the estate and was unable to furnish estate records because the estate files were in his stolen car and he no longer had access to the estate bank accounts after Attorney Larson replaced him as personal representative, Attorney Morse did not advance either of those arguments at the order to show cause hearing before the probate court. The OLR also says Attorney Morse fails to identify where in the referee's report the referee attributed undue weight to those facts. The OLR says even if the referee had given undue weight to the facts, it is unclear why such reliance would be inappropriate given that Attorney Morse stipulated to a misconduct count of failing to abide by the probate court's order to turn over to Attorney Larson all financial records pertaining to the estate.

¶40 The OLR goes on to argue that the estate was vulnerable to Attorney Morse's predatory conversions because he was unsupervised. It points that Attorney Morse had substantial experience in the practice of law when he agreed to handle M.G.'s estate. The OLR says Attorney Morse's conduct was not just unethical, it was illegal, as evidenced by the criminal conviction.

¶41 The OLR argues that Attorney Morse presented no medical evidence that his back pain caused him to commit misconduct so that cannot be considered a mitigating factor. While Attorney Morse says he was under stress at the time of the misconduct, the OLR says he again presented no medical evidence that the stress caused him to embezzle from the estate or commit any of the other admitted misconduct. The OLR says it does not generally dispute Attorney Morse's position that he has been cooperative with the disciplinary process. However, the OLR observes that Attorney Morse's willingness to enter into the misconduct stipulation occurred only after the conclusion of the criminal case.

¶42 The OLR acknowledges that the referee found Attorney Morse to appear genuinely remorseful at the sanctions hearing. The OLR says while it generally agrees with that conclusion, it says the remorse does not appear to be categorical because while Attorney Morse may not have appealed his sentence, he did appeal his conviction, continuing to question whether his actions constituted a crime. The OLR argues that Attorney Morse's attack on the criminal conviction undercuts his claims of remorse and acceptance of responsibility for his actions.

¶44 A referee's findings of fact are affirmed unless clearly erroneous. 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. The court may impose whatever sanction it sees fit, 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.

¶45 We conclude there has been no showing that any of the referee's findings of fact, which incorporate the terms of the parties' stipulation, are clearly erroneous. Accordingly, we adopt them. We further agree with the referee's conclusions of law that Attorney Morse violated the supreme court rules set forth above.

¶46 Turning to the appropriate level of discipline, although no two disciplinary proceedings are identical, we find this fact situation to be somewhat comparable to In re Disciplinary Proceedings Against Bauer, 2018 WI 49, 381 Wis. 2d 474, 912 N.W.2d 108. Attorney Bauer misused trust funds belonging to seven clients, transferred large sums of trust account money from one client fund to another, but ultimately repaid all balances in the clients' accounts. Like Attorney Morse, Attorney Bauer had substantial experience in practicing law and had no prior disciplinary history. Like Attorney Morse, Attorney Bauer cooperated with the OLR and entered into a partial stipulation. The sums of money involved in Bauer were significantly greater than the instant matter, but in this case there was a criminal prosecution and conviction that did not exist in Bauer.

¶47 It appears that the referee may have accorded undue weight to the fact that, as part of the plea agreement in the criminal case, Attorney Morse agreed not to oppose the State's request for a condition of the sentence imposed that he not practice law for two years. For that reason, we conclude that a two-year suspension is excessive. However, acceding to Attorney Morse's request for either a public reprimand or a 60-day suspension would unduly depreciate the seriousness of the misconduct at issue here. It cannot be overstated that Attorney Morse converted estate funds to his own personal use, and his conduct resulted in a criminal conviction. After careful review of the matter, we conclude that a one-year suspension of his license to practice law is an appropriate sanction for his admitted misconduct. As is our usual custom, we find it appropriate to assess the full costs of the proceeding against him.

¶48 IT IS ORDERED that the license of Daniel W. Morse to practice law in Wisconsin is suspended for a period of one year, effective July 2, 2019.

¶49 IT IS FURTHER ORDERED that within 60 days of the date of this order, Daniel W. Morse shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $11,038.85 as of December 18, 2018.

¶50 IT IS FURTHER ORDERED that Daniel W. Morse shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.