Public Reprimand of Jane Krueger Smith
2006-5
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Attorney Jane Krueger Smith (Krueger
Smith), 49, of Oconto Falls, was the
subject of three grievance investigations,
which resulted in findings of professional
misconduct, as summarized below:
On or about March 13, 2001, Krueger Smith
was appointed by the State Public
Defender’s Office to provide appellate-
level representation to D.S. following
D.S.’s conviction in Shawano County of
Child Enticement-Sexual Contact and 2nd
Degree Sexual Assault-Use of Force. D.S.
was sentenced to 20 years in a state prison.
By letter dated April 9, 2001, Krueger
Smith notified D.S. that she had been
appointed to represent him on potential
appellate issues. Krueger Smith also
informed D.S. that she had written to the
County Clerk of Circuit Court for a copy of
D.S.’s file and to trial counsel for trial
counsel’s insights and opinions as to any
appellate issues. Krueger Smith further
informed D.S. that the Public Defender’s
Office had requested that transcripts be
prepared and sent to her. Finally, Krueger
Smith stated she wanted to hear from D.S.
as to the relevant issues concerning his
case and after she had received and
reviewed the requested materials, she would
schedule an appointment with D.S. to
discuss his case. Krueger Smith requested
that D.S. write back as to his opinions
relative to any appellate issues.
With a transmittal letter dated May 4,
2001, Krueger Smith filed on D.S.’s behalf
in Shawano County Circuit Court a Motion
For Withdrawal of Plea and Other Relief:
Ineffective Assistance of Counsel. D.S.
was not copied on the transmittal letter to
the court and Krueger Smith did not
otherwise provide D.S. with copies of the
May 4, 2001 letter or the Motion.
By letter dated May 29, 2001 to the
Wisconsin Court of Appeals, Krueger Smith
enclosed for filing a Motion for Extension
of Time for Postconviction Motions.
According to the Motion, postconviction
motions in D.S.’s matter were filed in
Shawano County on May 8, 2001, but the
Judge was unable to schedule a hearing on
the Motions until July 13, 2001, which
meant the sixty day deadline under Rule
809.30(2)(i) would expire before the July
13, 2001 hearing unless extended by the
Court. The Motion further indicated that
the July 13, 2001 hearing could not be held
unless the Court of Appeals granted an
extension. Krueger Smith did not copy D.S.
on her May 29, 2001 correspondence or
otherwise provide a copy of the Motion to
D.S.
By letter dated June 15, 2001, Krueger
Smith wrote the Shawano County Court to
confirm that the Motion hearing originally
scheduled for July 13, 2001 had been moved
to July 11, 2001.
Krueger Smith states that at the time of
the July 11, 2001 Motion hearing, the
prosecution informed her that the local
State Public Defender’s Office had filed a
motion to withdraw plea, counsel had
testified, and the court denied the
motion.
By letter dated July 19, 2001, Krueger
Smith sent a copy of a January, 2001
transcript to D.S. Krueger Smith also
outlined previous positions taken by D.S.
and his former counsel. Krueger Smith
further advised D.S. that if he wished to
proceed to the Court of Appeals with a
request to order the trial court to
withdraw his plea, D.S. needed to be
certain that his defense would be
provable. Krueger Smith requested D.S.
consider carefully how he wanted to proceed
and let her know as soon as possible.
According to Krueger Smith, the July 19,
2001 correspondence was returned by the
post office for lack of postage. Krueger
Smith asserted that when the correspondence
and transcript were returned, she reopened
it, put the contents in a new envelope and
re-addressed it to D.S. with the additional
postage due. Krueger Smith asserted the
second package was not returned so she
assumed D.S. received the materials.
By letter dated August 22, 2001, D.S. wrote
Krueger Smith indicating that it had been a
while since he had spoken to her about his
case. D.S. also asserted Krueger Smith had
not contacted him to let him know her plans
and he had not yet received copies of his
file. D.S. asked Krueger Smith to contact
him as soon as possible.
By letter to Krueger Smith dated September
27, 2001, D.S. enclosed a copy of a
transmittal letter and a Pro Se Motion he
was filing with Shawano County requesting a
copy of the Presentence Investigation
Report. D.S. also indicated he had not
heard from Krueger Smith regarding his case
and again requested that she provide him
with a copy of his file.
After receiving no reply from Krueger
Smith, by letter dated November 18, 2001,
D.S. contacted the Attorney Manager for the
State Public Defender’s Office (SPD
attorney manager), indicating that Krueger
Smith had failed to respond to his earlier
letters requesting information concerning
the status of his case.
By letter dated November 19, 2001, D.S.
sent a copy of his November 18, 2001
correspondence to Krueger Smith and again
requested that Krueger Smith communicate
with him regarding his case.
Krueger Smith failed to respond to D.S.’s
November 19, 2001 letter.
By letter dated December 4, 2001, the SPD
attorney manager wrote to Krueger Smith
notifying her that he had recently received
a complaint from D.S. concerning her
handling of his appeal. The SPD attorney
manager enclosed a copy of D.S.’s recent
correspondence and requested that Krueger
Smith respond to D.S. within 10 days. The
SPD attorney manager also requested that
Krueger Smith forward a copy of any
correspondence sent by Krueger Smith to
D.S. to his office.
Krueger Smith did not communicate with D.S.
regarding his case or otherwise reply to
the SPD attorney manager’s December 4, 2001
correspondence.
By letter dated January 28, 2002, the SPD
attorney manager again notified Krueger
Smith he had received another letter from
D.S. concerning Krueger Smith’s
representation of him in his appeal. The
SPD attorney manager stated that neither he
nor D.S. had received any response to
earlier letters. The SPD attorney manager
asked Krueger Smith to write to D.S. to
address his concerns, and to provide a copy
of her letter to the SPD attorney manager.
Krueger Smith did not correspond with
D.S.
concerning the status of his appeal, nor
did she reply to the SPD attorney manager’s
January 28, 2002 correspondence.
By letter dated April 15, 2002, D.S.
contacted the SPD attorney manager
informing him that he still had not heard
anything from Krueger Smith regarding his
case.
After hearing nothing from Krueger Smith,
on April 26, 2002, D.S. wrote the Wisconsin
Court of Appeals inquiring as to the status
of his appeal.
By letter dated April 30, 2002, the Chief
Deputy Clerk for the Wisconsin Court of
Appeals (Deputy Clerk), informed D.S. that
no notice of appeal had been filed in his
case. The Deputy Clerk also indicated that
according to court records, Krueger Smith
had filed a motion for extension of time on
D.S.’s behalf on May 31, 2001, and the
court had granted an extension of time for
deciding the post-conviction motion until
July 20, 2001. The Deputy Clerk further
informed D.S. that pursuant to a phone call
to the Shawano County Clerk’s office, the
motion had not been pursued by Krueger
Smith. Finally, the Deputy Clerk informed
D.S. that further action could not be taken
on his case because an appeal was not
pending.
By letter dated May 20, 2002, the SPD
attorney manager informed Krueger Smith
that he had not received a reply to his
earlier letters, and D.S. still had not
received a reply regarding the status of
his appeal. The SPD attorney manager also
indicated he had called Krueger Smith’s
office on May 7 and May 14, 2002, each time
leaving a message with her secretary asking
Krueger Smith to return the call, but he
had received no response. The SPD attorney
manager further advised if he did not hear
from Krueger Smith within the next two
weeks he would be referring the matter to
the Office of Lawyer Regulation (OLR).
By letter dated October 21, 2002, Krueger
Smith sent D.S. a copy of a Motion to
Extend Time to File a Notice of Appeal,
which had purportedly been filed with the
court by Krueger Smith on August 19, 2002,
but denied. Krueger Smith also informed
D.S. that on July 21, 2001 she had sent him
a copy of the transcript from the prior
motion hearing with a letter suggesting
that D.S. review it and let her know what
he wanted to do, but that the package had
been returned for lack of postage. Krueger
Smith informed D.S. that she re-sent the
package with sufficient postage on July 28,
2001, but she did not hear from D.S. and
failed to follow-up with him. Krueger
Smith acknowledged she received D.S.’s
letters requesting a response but she had
been so busy with trial cases she did not
respond to D.S. as she should have.
Finally, Krueger Smith informed D.S. that
she would be sending his file back to the
Public Defender’s office suggesting they
appoint new counsel for D.S. to look into
filing a motion based upon ineffective
assistance of appellate counsel.
On December 5, 2002, OLR received D.S.’s
written grievance alleging that Krueger
Smith had neglected his case and failed to
adequately communicate with him regarding
the status of his matter.
In her initial response to D.S.’s
grievance, dated June 11, 2003, Krueger
Smith asserted after she was appointed
counsel for D.S., she promptly filed a
motion to withdraw the plea, scheduled it,
obtained the writ to get D.S. to court,
subpoenaed trial counsel, and appeared for
the hearing. Krueger Smith asserted at the
time of the hearing, the State informed her
that the local State Public Defender’s
Office had filed a motion to withdraw plea,
counsel had testified, and the court had
denied the motion. According to Krueger
Smith, it was agreed she would order a
transcript of that hearing, send it to
D.S., and then if he wished to proceed to
appeal the denial of that motion, Krueger
Smith would do so. Krueger Smith also
asserted she requested an extension of time
from the Court of Appeals to permit the
review.
Krueger Smith asserted that after she
received the transcript, she reviewed it
and sent it to D.S. with her opinion that
an appeal would be fruitless. Krueger
Smith stated that the post office returned
the package for insufficient postage, and
it was re-sent with proper postage.
Krueger Smith acknowledged that after D.S.
did not reply, she should have followed up
to find out why, but in the press of
business she did not do so. Krueger Smith
stated that later when D.S. wrote to her,
she put the letter aside and was going to
reply to D.S., but never did.
According to Krueger Smith, D.S.
subsequently wrote the Public Defender’s
Office, and they requested that she contact
D.S. Krueger Smith acknowledged she was
very busy with trial level cases and did
not reply promptly. Krueger Smith asserted
it was apparent that D.S. wanted to appeal
the denial of the motion, and she attempted
to obtain an additional extension from the
Court of Appeals, which was denied.
Krueger Smith returned the entire file to
the Public Defender’s Office after she was
asked to do so, and apparently successor
counsel was appointed for D.S.
By letter dated December 11, 2003, sent by
both regular and certified mail, OLR staff
requested additional information from
Krueger Smith and requested that she submit
her written response within 14 days.
Krueger Smith failed to respond to OLR’s
December 11, 2003 letter.
On January 16, 2004, Krueger Smith was
personally served with a letter from OLR
dated January 14, 2004, requesting that
Krueger Smith provide a response to the
questions contained OLR’s December 11, 2003
correspondence together with a copy of her
file for D.S.
Krueger Smith failed to respond to OLR’s
January 14, 2004 letter.
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By Order dated October 19, 2004, the
Wisconsin Supreme Court suspended the
license of Krueger Smith for her willful
failure to cooperate with the investigation
of three matters, including the grievance
filed by D.S.
On October 25, 2004, OLR received
correspondence dated October 22, 2004 from
Krueger Smith responding to the questions
contained in OLR’s December 11, 2003
correspondence and provided a copy of her
file to OLR.
Upon receipt of Krueger Smith’s October 22,
2004 correspondence, OLR notified the
Wisconsin Supreme Court that Krueger Smith
was then cooperating with OLR in the
investigation of D.S.’s grievance in order
for OLR to continue its investigation.
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By Order dated November 17, 2004, the
Wisconsin Supreme Court reinstated Krueger
Smith’s license to practice law in
Wisconsin.
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In failing to follow through with post-
conviction motions or otherwise file an
appeal in D.S.’s matter, Krueger Smith
failed to act with reasonable diligence and
promptness in representing a client,
contrary to SCR 20:1.3.
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In failing to respond to numerous letters
received from D.S. and various follow-up
letters from the Public Defender’s Office
inquiring as to the status of D.S.’s legal
matter, Krueger Smith failed to keep a
client reasonably informed about the status
of a matter and promptly comply with
reasonable requests for information,
contrary to SCR 20:1.4(a).
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In failing to discuss potential appellate
issues and strategies available to D.S. so
that he could make an informed decision
regarding his appeal, Krueger Smith failed
to explain a matter to the extent
reasonably necessary to permit the client
to make informed decisions regarding the
representation, contrary to SCR 20:1.4(b).
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In failing to fully and fairly disclose all
of the facts and circumstances pertaining
to the alleged conduct and in failing to
fully respond to additional questions
concerning D.S.’s grievance, Krueger Smith
failed to cooperate with the investigation
of D.S.’s grievance, in violation of SCR
21.15(4), which provides, “Every attorney
shall cooperate with the office of lawyer
regulation in the investigation,
prosecution and disposition of grievances,
complaints filed with or by the director,
and petitions for reinstatement. An
attorney’s wilful failure to cooperate with
the office of lawyer regulation constitutes
violation of the rules of professional
conduct for attorneys;” and in violation of
SCR 22.03(6), which states, “In the course
of the investigation, the respondent’s
wilful failure to provide relevant
information, to answer questions fully, or
to furnish documents and the respondent’s
misrepresentation in a disclosure are
misconduct, regardless of the merits of the
matters asserted in the grievance.” Both
SCR 21.15(4) and 22.03(6) are enforceable
under the Rules of Professional Conduct via
SCR 20:8.4(f), which states in relevant
part, “It is professional misconduct for a
lawyer to…violate a…supreme court rule…
regulating the conduct of lawyers.”
On or about April 29, 2002, Krueger Smith
was appointed by the Public Defender’s
Office to represent K.S. on his appeal of a
conviction in Outagamie County. K.S. was
initially incarcerated at the Green Bay
Correctional Institution.
In January, 2003, K.S. filed a grievance
with OLR asserting that after Krueger Smith
was appointed, she contacted him by mail on
or about June 5, 2002. K.S. alleged that
following that initial contact, he wrote to
Krueger Smith, but never received a
response from her. K.S. alleged he had his
grandmother call Krueger Smith in December,
2002, and Krueger Smith indicated she would
come to visit K.S. in prison, but she never
did. K.S. alleged that Krueger Smith never
communicated with him and neglected to
follow up on his case.
By letter dated March 25, 2003, OLR staff
notified Krueger Smith of K.S.’s grievance
and requested that she provide a written
response by no later than April 18, 2003.
Krueger Smith did not provide a response to
OLR.
By letter dated April 30, 2003, sent by
both regular and certified mail, OLR again
requested that Krueger Smith provide a
response to K.S.’s grievance by no later
than May 10, 2003.
Krueger Smith still did not provide a
written response to K.S.’s grievance to OLR.
On May 23, 2003, Krueger Smith was
personally served with a letter dated May
22, 2003 together with enclosures from OLR
requesting her written response to K.S.’s
grievance by no later than June 16, 2003.
On June 16, 2003, OLR received Krueger
Smith’s response to K.S.’s grievance.
According to Krueger Smith, she was
appointed to represent K.S. on May 31, 2002
and on June 4, 2002, she wrote to K.S., to
trial counsel, and to the Outagamie County
Clerk of Court to request the file.
Krueger Smith asserted that in late June,
2002, K.S. called her to discuss his matter
and she and K.S. discussed the fact that he
had entered into a plea agreement whereby
he admitted to the charge of party to the
crime of armed robbery (with an enhancer
for concealing identity) while a bail
jumping charge was dismissed. As to
sentencing, the agreement contemplated that
the State would cap its recommendation at 6
years of incarceration, with 10 years of
extended supervision. According to Krueger
Smith, they discussed the fact that when a
case was resolved by a plea agreement,
often the only route available was to move
to withdraw the plea and reinstate the
original charges and proceed to a trial if
the motion to withdraw plea was granted.
Krueger Smith asserted K.S. was initially
in favor of moving to re-open the plea,
since he claimed he had been “railroaded”
by his first attorney into accepting the
agreement when, in fact, he did not commit
the crime because he had left the scene.
Krueger Smith indicated that K.S. was also
aware that both co-defendants had already
pled to the charge and implicated K.S. in
the entirety of the crime and both
defendants could be subpoenaed to testify
against K.S. if the matter were reopened.
Krueger Smith also informed K.S. that
although Wisconsin law was clear that a
court could not increase a sentence
following withdrawal of a plea and
subsequent loss of a trial, the court could
impose a different, and possibly greater
sentence if it could point to legitimate
information indicating that a different
sentence was appropriate. According to
Krueger Smith, K.S. insisted he wanted to
attempt to proceed with a postconviction
motion only if he could not “get more” in
the end. Krueger Smith asserted she made
it clear to K.S. that she could not promise
anything.
Krueger Smith asserted that based on her
conversation with K.S., and his insistence
that he did not want to run the risk
of “getting any more time,” she did not
file the motion to withdraw plea. Krueger
Smith stated in retrospect she should have
followed up her conversation with K.S. with
a confirming letter, but since he had been
so clear, she did not see the need,
particularly since K.S. was being moved
around at that point due to another pending
matter. Krueger Smith asserted she may
have received a telephone call from someone
representing herself as K.S.’s grandmother,
although she did not remember the call.
By letter dated July 7, 2003, K.S. asserted
that some of what Krueger Smith relayed in
her initial response was true, but not
everything. K.S. specifically disputed
Krueger Smith’s contention that the two
discussed the case by telephone after
Krueger Smith received a letter from K.S
dated June 25, 2002. K.S. asserted he had
also requested that Krueger Smith attempt
to get a new judge appointed if his case
were re-opened.
Upon reviewing the evidence bearing on
whether K.S. and Krueger Smith discussed by
telephone the merits of post-conviction
and/or appellate efforts, OLR, pointing to
the events listed below, determined that
such a discussion did not occur:
a. Krueger Smith’s first contact with
K.S. was by letter dated June 4, 2002, in
which Krueger Smith introduced herself and
pointed out that she did not yet have
either the transcripts or the trial court
file.
b. Also on June 4, 2002, Krueger Smith
wrote to trial-level counsel, seeking
his “insights into the case and [his]
assessment as to the best (if any)
appellate issues.” Krueger Smith also
requested discovery materials and any
transcripts then in the possession of trial
counsel. Krueger Smith has not stated
what, if anything she received from trial-
level counsel, or how anything received
from trial counsel shaped her views
regarding the viability of any appellate
issues.
c. Also on June 4, 2002, Krueger Smith
wrote to the Outagamie County Clerk of
Circuit Court and requested a copy of “the
entire court record” in K.S.’s matter.
Krueger Smith has not stated when she
received a response to her request, nor has
she described the content of the Clerk of
Circuit Court’s response.
d. On June 25, 2002, K.S. wrote to
Krueger Smith, asking to “set up an
appointment.” K.S. then devoted two pages
to “[t]he reasons I would like this
appeal…”
e. Krueger Smith asserts that even
though no meeting or telephone conference
had been scheduled, and even though she had
not yet responded to K.S.’s June 25, 2002
letter in any way, K.S. initiated telephone
contact with her from prison on an
unspecified date and engaged in discussions
with Krueger Smith for which she has
produced no notes.
f. Although she cannot specify the
date of the purported telephone call, she
has produced no notes, and she states that
the call likely lasted 15 minutes or less,
Krueger Smith states that she sufficiently
explained the pros and cons of an appeal
such that at K.S.’s direction, she closed
the file, and K.S. was “so clear” in his
direction that she did not see the need to
follow up with a letter confirming the
content of their purported discussion.
g. In addition to there being no
evidence of any written confirmation with
the client as to the closure of the file,
no evidence has been produced to date to
indicate that Krueger Smith provided notice
of the file closure (contemporaneous or
otherwise) to the Office of State Public
Defender, trial counsel, or the Outagamie
County Clerk of Circuit Court.
h. K.S. denies that he initiated from
his prison a telephone conference with
Krueger Smith during which he directed her
to abandon appellate efforts. In fact,
K.S. alleges he heard nothing from Krueger
Smith subsequent to her June 5, 2002 letter
of introduction, so he wrote her again on
or about November 1, 2002, and again heard
nothing. K.S. further alleges that his
grandmother called Krueger Smith in
December, 2002, at which time Krueger Smith
promised a prison visit but did not follow
through.
i. In his grievance, K.S. stated a
desire to “find out what’s going on with my
lawyer so I can go on with my appeal.”
By letter dated December 11, 2003, sent by
both regular and certified mail, OLR staff
requested that Krueger Smith provide
additional information relating to her
representation of K.S.
Krueger Smith failed to respond to OLR’s
December 11, 2003 correspondence.
On January 16, 2004, Krueger Smith was
personally served with a letter dated
January 14, 2004 with enclosures requesting
that she provide a written response to the
questions contained in OLR’s December 11,
2003 correspondence by no later than
January 28, 2004.
No supplemental response was received
from Krueger Smith.
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By Order dated October 19, 2004, the
Wisconsin Supreme Court temporarily
suspended Krueger Smith’s license to
practice law in Wisconsin, effective the
date of the order.
By letter dated October 22, 2004, Krueger
Smith provided the supplemental information
relating to the K.S. grievance. Krueger
Smith asserted she did not recall the exact
date of her telephone conversation with
K.S. but made handwritten notes of their 15
minute conversation which she had intended
to transcribe, but never did. Krueger
Smith acknowledged she did not confirm by
letter that she would not be filing the
motion to withdraw plea or that she would
be closing her file. Krueger Smith also
indicated she did not notify the Public
Defender’s Office that she would not be
taking any post-conviction action on K.S.’s
case. Krueger Smith did not submit a bill
to the Public Defender’s office requesting
payment. Krueger Smith asserted because
she did not keep notes regarding the date
of K.S.’s call, and since her factual
review and research did not take long and
did not produce any tangible benefit to the
client, she closed the case as “pro bono”
without itemization and without requesting
payment.
Upon receipt of Krueger Smith’s October 22,
2004 correspondence, OLR notified the
Wisconsin Supreme Court that Krueger Smith
was then cooperating with OLR in the
investigation of K.S.’s grievance.
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By Order dated November 17, 2004, the
Wisconsin Supreme Court reinstated Krueger
Smith’s license to practice law in
Wisconsin since Krueger Smith was
cooperating with OLR’s investigation of
K.S.’s grievance.
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By failing to advance post-conviction
motions or an appeal on K.S.’s behalf, or
in the alternative, by failing to formally
close out the file with a no-merit report
or any other proper notice to the client,
courts and State Public Defender, Krueger
Smith violated SCR 20:1.3, which states, “A
lawyer shall act with reasonable diligence
and promptness in representing a client.”
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Subsequent to her introductory letter to
K.S. dated June 4, 2002, by failing to
affirmatively inform K.S. of case status
and by failing to reply to his inquiries
regarding case status, Krueger Smith
violated SCR 20:1.4(a), which states, “A
lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests
for information.”
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By failing to have any communication with
K.S. subsequent to her June 4, 2002
introductory letter, Krueger Smith failed
to allow K.S. to make any informed decision
concerning appellate efforts, such that
Krueger Smith violated SCR 20:1.4(b), which
states, “A lawyer shall explain a matter to
the extent reasonably necessary to permit
the client to make informed decisions
regarding the representation.”
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In failing to fully and fairly disclose all
of the facts and circumstances pertaining
to the alleged conduct and in failing to
fully respond to additional questions
concerning K.S.’s grievance, Krueger Smith
failed to cooperate with the investigation
of K.S.’s grievance, in violation of SCR
21.15(4), which provides, “Every attorney
shall cooperate with the office of lawyer
regulation in the investigation,
prosecution and disposition of grievances,
complaints filed with or by the director,
and petitions for reinstatement. An
attorney’s wilful failure to cooperate with
the office of lawyer regulation constitutes
violation of the rules of professional
conduct for attorneys;” and in violation of
SCR 22.03(6), which states, “In the course
of the investigation, the respondent’s
wilful failure to provide relevant
information, to answer questions fully, or
to furnish documents and the respondent’s
misrepresentation in a disclosure are
misconduct, regardless of the merits of the
matters asserted in the grievance.” Both
SCR 21.15(4) and 22.03(6) are enforceable
under the Rules of Professional Conduct via
SCR 20:8.4(f), which states in relevant
part, “It is professional misconduct for a
lawyer to…violate a…supreme court rule…
regulating the conduct of lawyers.”
By letter dated March 2, 2004, the Attorney
Manager for the Office of the State Public
Defender (SPD attorney manager) filed a
grievance with OLR regarding the conduct of
Krueger Smith and her representation of
R.T. Krueger Smith had been appointed on
May 28, 2002 by the Public Defender’s
Office to represent R.T. in post-conviction
proceedings and/or appeals in three Brown
County cases.
The SPD attorney manager asserted that in
April of 2003, he received a letter from
R.T. stating that Krueger Smith had stopped
taking his calls and responding to his
letters regarding his cases. On April 17,
2003, the SPD attorney manager wrote to
Krueger Smith and asked her to respond to
the concerns raised in R.T.’s letter.
Krueger Smith did not contact R.T., nor did
she respond to the SPD attorney manager’s
April 17, 2003 letter.
On August 7, 2003, the SPD attorney manager
again wrote Krueger Smith asking her to
respond to his letter. The SPD attorney
manager copied R.T. on his letter to
Krueger Smith. R.T. immediately notified
the SPD attorney manager that he had not
heard from Krueger Smith.
By letter dated August 12, 2003, the SPD
attorney manager forwarded R.T.’s letter to
Krueger Smith, and asked her to respond to
R.T.’s concerns.
After hearing nothing from Krueger Smith,
on October 28, 2003, the SPD attorney
manager sent a follow-up letter to Krueger
Smith asking for a response and reminding
her of her duties under the Supreme Court
Rules.
On November 5, 2003, the SPD attorney
manager received another letter from R.T.
indicating that he still had not heard from
Krueger Smith.
On November 11, 2003, the SPD attorney
manager reached Krueger Smith by
telephone. According to the SPD attorney
manager, Krueger Smith stated she did not
remember anything about R.T.’s case and
that the file was in Marinette. Krueger
Smith indicated she would retrieve the file
and get back to the SPD attorney manager.
For the next month or so, Krueger Smith
did
not contact the SPD attorney manager.
On December 8, 2003, the SPD attorney
manager sent out another letter to Krueger
Smith reminding her of their earlier
conversation in November, 2003 and
requested an immediate response from
Krueger Smith.
Krueger Smith did not reply to the SPD
attorney manager’s December 8, 2003
correspondence.
On February 19, 2004, the SPD attorney
manager called Krueger Smith. Krueger
Smith again informed the SPD attorney
manager that she did not have the file with
her, but thought she had sent in a response
to the SPD attorney manager. Krueger Smith
asserted she would review the file and try
to have something faxed to him by the
following day. The SPD attorney manager
indicated he would wait one more week for
her response, but if none was received, he
would be turning the matter over to OLR.
The SPD attorney manager received no
further response from Krueger Smith and
filed this grievance with OLR. The SPD
attorney manager alleged that Krueger Smith
had not pursued any post-conviction
proceedings on behalf of R.T. and also
alleged Krueger Smith had failed to contact
him or to respond to R.T.’s inquiries
concerning his case.
By letter dated April 13, 2004, OLR
notified Krueger Smith of the grievance and
requested that she submit a written
response by no later than May 5, 2004.
After receiving no response, Krueger Smith
was personally served with a follow-up
letter from OLR dated May 20, 2004,
requesting that her response to the
grievance be postmarked no later than June
14, 2004.
By letter dated June 7, 2004, Krueger Smith
responded to the grievance. Krueger Smith
acknowledged that the SPD attorney manager
had contacted her as he had indicated, but
she did not respond to him in writing.
Krueger Smith asserted she did obtain and
review the files and transcripts relating
to R.T.’s cases and wrote to R.T. regarding
his options. Krueger Smith asserted that
she did not receive a response to her
letter other than the SPD attorney
manager’s letter, and she should have
contacted R.T. in response to the SPD
attorney manager’s communications. Krueger
Smith asserted she intended to reply, but
her file, which was not then easily kept at
hand did not show any responses. Krueger
Smith indicated she has since moved all
files into her office and instituted a “one-
day response” policy with regard to all
client communications.
The record does not support Krueger Smith’s
contention that she ever described to R.T.
the options available to him or relayed to
him her conclusions regarding the viability
of any such options. The record indicates
that Krueger Smith communicated with R.T.
twice. On May 31, 2002 Krueger Smith sent
a letter of introduction to R.T. upon her
appointment as his appellate counsel. On
June 30, 2002, Krueger Smith wrote to R.T.,
stating in total:
In reviewing the court file and
transcripts
on these matters, a question arose which I
could not answer from the materials that I
have. I was hoping that you could give me
a quick answer. At one point in an
otherwise very thorough plea proceeding,
Judge Dietz made reference to “…a
recommendation at sentencing that you are
aware of.” I can find nothing more in my
materials regarding any possible state
sentencing recommendation. My question is,
I hope, a simple one: Did the State in
fact make a sentencing recommendation of
any kind, and, if so, what was it?
Thank you for your help in this
matter.
On July 2, 2004, Krueger Smith was
personally served with a letter from OLR
dated June 29, 2004, requesting additional
information. The June 29, 2004 letter
requested that Krueger Smith provide her
supplemental response to OLR by no later
July 16, 2004.
Krueger Smith did not provide a
supplemental response to OLR.
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By Order dated September 19, 2004, the
Wisconsin Supreme Court temporarily
suspended Krueger Smith’s license to
practice law for her failure to cooperate
with three investigations, including this
matter, effective the date of the order.
By letter dated October 22, 2004,
Krueger Smith submitted her supplemental
response to OLR’s June 29, 2004
correspondence. Krueger Smith asserted
that she knew the answers she was then
submitting were late, but she was a solo
practitioner and she did her own typing,
and works long hours. According to Krueger
Smith she had started to respond promptly,
but when she was called away by other work,
she did not get back to her responses to
finish them or mail them. Krueger Smith
indicated that despite this grievance, she
had tried to be prompt, efficient, and
responsive to her clients and kept putting
their work first and telling herself that
she would finish them tomorrow. Krueger
Smith asserted, however, she kept putting
off the work as well as her response to
OLR, and that is no explanation and a poor
excuse. Krueger Smith also submitted a
copy of her file relating to R.T.’s matter.
Krueger Smith asserted she kept client
files at her home in a cabinet
approximately 34 miles from the office and
things got “lost in translation” between
her office and home. Krueger Smith stated
she has since rectified the problem by
keeping the original files in her office
and a duplicate file at home for all
appeals. Krueger Smith asserted the “one
day response” policy referred to includes
contacts both in writing and by phone.
According to Krueger Smith this was a goal
because sometimes it was not physically
possible to do this because of numerous
court appearances, including jury trials.
With regard to R.T., Krueger Smith
asserted his case involved a plea agreement
and a review of the transcripts revealed a
thorough plea-taking proceeding. The only
possibility of an issue seemed to arise
from a statement by Judge Dietz referring
to “…a recommendation at sentencing that
you are aware of.” Krueger Smith indicated
this led to two possible issues: breach by
the State of a plea agreement or a failure
to advise R.T. that the court was not bound
by any sentence recommendation made by any
party. This prompted Krueger Smith to send
her June 30, 2002 letters to R.T. and to
trial counsel. Krueger Smith eventually
spoke to trial counsel, but learned nothing
useful. Krueger Smith stated that R.T. did
not respond right away, so she wrote him a
second letter and asserted the information
provided by R.T. was unhelpful and left no
viable issues. Again, the record does not
support Krueger Smith’s contention that she
ever relayed to R.T. her conclusions
regarding the viability of potential
appellate issues.
In a letter to OLR staff dated December 7,
2004, the SPD attorney manager summarized
Krueger Smith’s failings in R.T.’s case as
follows:
The materials provided to me do not
demonstrate that Ms. Smith has complied
with accepted standards of practice and
appellate rules, as summarized in State
v. Thornton, 2002 WI APP 294, 259 Wis. 2d
157, 656 N.W.2d 45 and State ex rel. Ford
v. Holm, 2004 WI APP 22, 269 Wis. 2d 810,
676 N.W.2d 500. There is no indication in
the materials that she informed [R.T.] of
his options at the point at which she
concluded there was no merit to further
proceedings, nor did she file a no-merit
report with the court of appeals. In light
of these failures, the Office of the State
Public Defender will appoint successor
counsel to provide further representation
to [R.T.] in these matters.
A review of the materials provided to OLR
staff by Krueger Smith did not disclose any
communications with R.T. following her June
30, 2002 correspondence to R.T., even
though R.T. sent follow-up correspondence
to Krueger Smith dated November 5, 2002
inquiring as to the status of his case.
There is also no indication that Krueger
Smith ever informed R.T. of his options
after Krueger Smith had concluded there was
no merit to further proceedings, nor did
she file a no-merit report with the court
of appeals. On or about December 7, 2002,
the Public Defender’s Office appointed
successor counsel for R.T.
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Following receipt of Krueger Smith’s
supplemental response in October, 2004, OLR
notified the Wisconsin Supreme Court that
Krueger Smith was then cooperating with the
investigation of R.T.’s grievance.
On November 17, 2004, Krueger Smith’s
license to practice law was reinstated by
the Wisconsin Supreme Court.
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In failing to pursue any post-conviction or
appellate measures on R.T.’s behalf, or in
the alternative, to file a no-merit report
with the court of appeals in R.T.’s case,
Krueger Smith failed to act with reasonable
diligence and promptness in representing a
client, in violation of SCR 20:1.3.
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In failing after June 30, 2002, to respond
to R.T.’s telephone calls and
correspondence inquiring as to the status
of his case, Krueger Smith failed to keep a
client reasonably informed about the status
of a matter and promptly comply with
reasonable requests for information, in
violation of SCR 20:1.4(a).
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In failing to fully and fairly disclose all
of the facts and circumstances pertaining
to the alleged conduct and in failing to
fully respond to additional questions
concerning the SPD attorney manager’s
grievance, Krueger Smith failed to
cooperate with OLR’s investigation, in
violation of SCR 21.15(4), which
provides, “Every attorney shall cooperate
with the office of lawyer regulation in the
investigation, prosecution and disposition
of grievances, complaints filed with or by
the director, and petitions for
reinstatement. An attorney’s wilful
failure to cooperate with the office of
lawyer regulation constitutes violation of
the rules of professional conduct for
attorneys;” and in violation of SCR 22.03
(6), which states, “In the course of the
investigation, the respondent’s wilful
failure to provide relevant information, to
answer questions fully, or to furnish
documents and the respondent’s
misrepresentation in a disclosure are
misconduct, regardless of the merits of the
matters asserted in the grievance.” Both
SCR 21.15(4) and 22.03(6) are enforceable
under the Rules of Professional Conduct via
SCR 20:8.4(f), which states in relevant
part, “It is professional misconduct for a
lawyer to…violate a…supreme court rule…
regulating the conduct of lawyers.”
In accordance with SCR 22.09(3),
Attorney Jane Krueger Smith is hereby
publicly reprimanded.
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