OLR Compendium > Disciplinary Proceedings Against Davis

Disciplinary Proceedings Against Davis

2020 WI 48, 6/12/20 (2020)

ATTORNEY disciplinary proceeding. Attorney's license suspended.

¶1 PER CURIAM. We review Referee John B. Murphy's recommendation that Attorney Stanley Whitmore Davis be declared in default and his license to practice law in Wisconsin suspended for one year for professional misconduct. The referee also recommended that Attorney Davis pay $2,500 in restitution to G.P. and $3,750 to the Wisconsin Lawyers' Fund for Client Protection ("the Fund"), and that he pay the full costs of the proceeding, which are $2,601.62 as of January 15, 2020.

¶2 We declare Attorney Davis to be in default. We agree with the referee that the record establishes that Attorney Davis has committed 36 counts of professional misconduct, warranting a one-year suspension of his license to practice law in Wisconsin. We also agree that Attorney Davis should pay restitution to G.P. and to the Fund and we direct him to pay the full costs of this proceeding.

¶3 Attorney Davis was admitted to practice law in Wisconsin in 1998. He practiced in the Madison area. On August 15, 2018, we temporarily suspended Attorney Davis' law license for non-cooperation with an Office of Lawyer Regulation (OLR) investigation. On November 2, 2018, his law license was also administratively suspended for non-payment of state bar dues and failure to submit a trust account certification. On June 5, 2019, he was administratively suspended for failure to complete mandatory continuing education requirements. His law license remains suspended.

¶4 On December 20, 2018, the OLR filed its initial disciplinary complaint against Attorney Davis, alleging 20 counts of professional misconduct. The complaint was personally served upon Attorney Davis on January 14, 2019. Attorney Davis did not file an answer. Referee Murphy was appointed on February 1, 2019 and on February 9, 2019, the referee ordered the parties to appear by telephone for a February 26, 2019 scheduling conference. Attorney Davis was also ordered to provide a contact telephone number, in advance. Attorney Davis failed to provide a telephone number and failed to appear at the scheduling conference. The OLR requested and received leave to file an amended complaint and another scheduling conference was set for May 14, 2019.

¶5 On March 19, 2019, the OLR filed an amended complaint alleging 26 counts of misconduct. Attorney Davis failed to answer, failed to provide a telephone number, and did not appear at the follow-up scheduling conference.

¶6 On August 6, 2019, the OLR filed a second amended complaint alleging 36 counts of misconduct. Attorney Davis did not answer. On September 19, 2019, the OLR filed a notice of motion and motion for summary judgment. Again, Attorney Davis did not respond.

¶7 On October 15, 2019, the referee, citing Wis. Stat. § 801.11(1), directed the OLR to personally serve Attorney Davis with the first and second amended complaints. An adult woman with the surname Davis accepted service of the complaints on October 24, 2019. Additional personal service was attempted on October 25, 2019. The complaints were accepted by a person believed to be Attorney Davis' father. The two amended complaints were also mailed to all three addresses associated with Attorney Davis. The referee found that it "is undeniably clear that Davis has no interest in objecting to any of the allegations made against him by the OLR though he has been given many opportunities to do so."

¶8 On December 27, 2019, the referee issued his report, recommending the court grant the OLR's motion and deem Attorney Davis in default. The referee found that based on the facts alleged in the second amended complaint and Attorney Davis' failure to answer the second amended complaint, or otherwise respond or appear in this matter, the OLR has met its burden of proof with respect to proving all 36 counts of misconduct alleged in the second amended complaint. The referee recommended that Attorney Davis' license to practice law in Wisconsin be suspended for one year, that he be ordered to pay restitution to one client, G.P., and to the Fund, and assessed the costs of this proceeding.

¶9 Attorney Davis did not appeal the referee's recommendation so we consider this matter pursuant to SCR 22.17(2). 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.

¶10 We agree that reasonable diligence was exercised, attempting to serve Attorney Davis by personal service in the manner set forth in Wis. Stat. § 801.11(1) and by service under SCR 22.13(1), which provides that if, with reasonable diligence, the respondent cannot be served under Wis. Stat. § 801.11(1)(a) or (b), "service may be made by sending by certified mail an authenticated copy of the complaint and order to answer to the most recent address furnished by the respondent to the state bar."

¶11 As the second amended complaint reflects, Attorney Davis' misconduct was serious. It involves 36 counts of misconduct and eight client matters. Attorney Davis missed deadlines, failed to pursue client claims, lied to clients about the status of cases, failed to return retainers, failed to advise clients when his law license was suspended, then failed to respond to grievances or otherwise cooperate with the OLR. The referee described him as "absolutely uncooperative." As an example, one client lost her right to pursue a Title VII claim because of Attorney Davis' failure to act. We accept the referee's conclusions, based on the second amended complaint, that Attorney Davis violated SCRs 20:1.1 (Competence, Count 27); 20:1.3 (Diligence, Counts 1, 5, 10, 13, and 21); 20:1.4(a)(3) (Communication, Count 2); 20:1.4(a)(2) (Communication, Count 22); 20:1.5(b)(1) (Fees, Count 14); 20:1.5(c) (Fees, Count 15); 20:1.16(d) (Terminating Representation, Counts 3, 11, and 29); 20:3.4(c) (Fairness to Opposing Counsel and the Tribunal, Count 31); and 20:8.4(c) (Misconduct, Count 28). In addition, by continuing to represent clients and provide legal advice while his law license was suspended, Attorney Davis violated SCR 10.03(6), SCR 22.26(2), and SCR 31.10(1), enforceable via SCR 20:8.4(f) (Counts 9, 17, 24, 26, 33 and 35); and, by failing to notify clients and/or the court and opposing counsel of his license suspension he violated SCR 22.26(1)(a)-(c), enforceable via SCR 20:8.4(f) (Counts 6, 8, 16, 19, 23, and 32). Finally, by failing to cooperate with the OLR Attorney Davis violated SCR 22.03(2) and/or SCR 22.03(6), enforceable via SCR 20:8.4(h) (Counts 4, 7, 12, 18, 20, 25, 30, 34, and 36).

¶12 We next consider the appropriate sanction. The first complaint filed against Attorney Davis sought a 90-day suspension. The first amended complaint reflected additional misconduct and requested a nine- month suspension. The second amended complaint added six more counts of misconduct and sought a one-year suspension. The OLR bases this recommendation on In re Disciplinary Proceedings Against Chavez, 2015 WI 39, 361 Wis. 2d 636, 862 N.W.2d 142. Attorney Chavez's law license was suspended for one year for continuing to accept legal work after knowing he faced a license suspension, failing to inform clients of his suspension, abandoning clients, then failing to participate in or cooperate with the disciplinary proceeding. The OLR states that it considers Attorney Davis' misconduct less serious than that in In re Disciplinary Proceedings Against Tully, 2005 WI 100, 283 Wis. 2d 124, 699 N.W.2d 882, where the attorney, who had no prior discipline, was suspended for two years for 29 counts of misconduct, including failure to act on her clients' behalf, failure to respond to her clients, practicing while her license was suspended, lying to the Board of Bar Examiners in her reinstatement petition, and failing to cooperate in the disciplinary investigation. Certainly, a lengthy suspension is appropriate. As Attorney Davis has been suspended since August 15, 2018, we will accept the referee's recommendation, and impose a one-year suspension on Attorney Davis' law license.

Competence

SCR 20:1.1

Diligence

SCR 20:1.3

Communication

-	Keeping Client Informed

-	Failure to Consult

SCR 20:1.4

Fees

Agreement

-	Contingent Fee Agreement

SCR 20:1.5(b)

SCR 20:1.5(c)

-	Improper Withdrawal

SCR 20:1.16(d)

Court Order or Rule, Failure to Obey

SCR 20:3.4(c)

Dishonesty, Fraud, Deceit or Misrepresentation

SCR 20:8.4(c)

Statute, Rule, Order or Decision

SCR 20:8.4(f)

Unauthorized Practice

SCR 10.03(6)

SCR 22.26(2)

SCR 31.10(1)

Suspension

-	Failure to Notify

SCR 22.26(1)(a)

SCR 22.26(1)(c)

Failure to Cooperate

SCR 20:8.4(h)

SCR 22.03(2) and (6)

¶13 We further agree that Attorney Davis shall make restitution in the amount of $2,500 to G.P. and $3,750 to the Wisconsin Lawyers' Fund for Client Protection. We note with some concern that the OLR's restitution statement states there was "no reasonably ascertainable amount of restitution" with respect to Attorney Davis' representation of C.B. on the employment matter, or his representation of T.F., O.O., R.P., and T.M. We recognize that Attorney Davis' utter refusal to cooperate with the OLR may account for this troubling conclusion. We emphasize that if Attorney Davis ever seeks reinstatement, he will be required to satisfy to this court that he has addressed the question of restitution. See, e.g., SCR 22.29(4)(c) and (4m). Finally, we agree with the referee that Attorney Davis should bear the full costs of this proceeding.

¶14 IT IS ORDERED that the license of Stanley Whitmore Davis to practice law in Wisconsin is suspended for a period of one year, effective the date of this order.

¶15 IT IS FURTHER ORDERED that within 60 days of the date of this order, Stanley Whitmore Davis shall pay restitution to G.P. in the amount of $2,500 and to the Wisconsin Lawyers' Fund for Client Protection in the amount of $3,750.

¶16 IT IS FURTHER ORDERED that restitution to client G.P. is to be completed prior to paying restitution to the Wisconsin Lawyers' Fund for Client Protection, and restitution to the Wisconsin Lawyers' Fund for Client Protection is, in turn, to be completed before paying costs to the Office of Lawyer Regulation.

¶17 IS FURTHER ORDERED that within 60 days of the date of this order, Stanley Whitmore Davis shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $2,601.62, as of January 15, 2020.

¶18 IT IS FURTHER ORDERED that, to the extent he has not already done so, Stanley Whitmore Davis shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended.

¶19 IT IS FURTHER ORDERED that the temporary suspension of Stanley Whitmore Davis' license to practice law, entered on August 15, 2018, is hereby lifted.

¶20 IT IS FURTHER ORDERED that the administrative suspensions of Stanley Whitmore Davis due to his failure to pay mandatory bar dues, failure to file a trust account certification, and failure to comply with continuing legal education requirements, will remain in effect until each reason for the administrative suspension has been rectified, pursuant to SCR 22.28(1).

¶21 IT IS FURTHER ORDERED that as a condition of reinstatement of his license to practice law in Wisconsin, Stanley Whitmore Davis will be required to demonstrate he has made full restitution to or settled all claims of all persons harmed by the misconduct that is the subject of this proceeding, as set forth in the second amended complaint.