Disciplinary Proceedings Against Gedlen
2007 WI 121, 305 Wis.2d 34, 739 N.W.2d 274 (2007)
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ATTORNEY disciplinary proceeding.
Attorney's license revoked.
¶1 PER CURIAM. We review the
referee's recommendation that Attorney James
M. Gedlen's license to practice law in
Wisconsin be revoked for professional
misconduct. No appeal has been filed. We
conclude that the seriousness of Attorney
Gedlen's misconduct warrants license
revocation.
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¶2 Attorney Gedlen was admitted to the
practice of law in Wisconsin in 1971 and
most recently practiced in Milwaukee. In
April 2006 the Office of Lawyer Regulation
(OLR) filed a 28-count amended complaint
alleging misconduct with respect to numerous
client matters. Attorney Gedlen filed an
answer. John A. Fiorenza was appointed
referee, and a hearing was set for March 19,
2007. Attorney Gedlen did not appear and
did not contact the referee on the date of
the hearing to give any reason for his
failure to appear.
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¶3 The OLR moved for default judgment.
After receiving testimony from the OLR
witness and exhibits containing 101
documents and their descriptions, the
referee concluded that Attorney Gedlen
committed 28 counts of misconduct as alleged
in the amended complaint.
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¶4 The first 16 counts of the amended
complaint detail Attorney Gedlen's
professional misconduct between 2003 and
2006 involving nine separate clients as well
as misconduct related to his own divorce
proceeding. Counts One and Two allege that
by converting for his own purposes
$26,756.56 belonging to his clients and
third parties, Attorney Gedlen committed
criminal acts that reflect adversely on his
honesty, trustworthiness or fitness as a
lawyer in other respects, contrary to former
SCR 20:8.4(b), and violated former SCR 20:8.4
(c), prohibiting conduct involving
dishonesty, fraud, deceit or
misrepresentation. Count Three states that
by failing to hold the $26,756.56 in trust,
Attorney Gedlen violated former SCRs 20:1.15
(a) (effective through June 30, 2004) and
20:1.15(b)(1).
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¶5 Counts Four and Five state that by
paying business expenses directly from his
trust account in July 2004 with $2175.78 in
fees that had been advanced by clients but
not yet earned, Attorney Gedlen converted
money belonging to clients for his own
purposes, contrary to former SCR 20:8.4(b),
and violated former SCR 20:8.4(c) by conduct
involving dishonesty, fraud, deceit or
misrepresentation. Count Six alleges that
by converting fee advances paid by three
clients to pay six disbursements from his
trust account for business expenses prior to
earning the fees, Attorney Gedlen failed to
hold the unearned fees and advanced payments
of fees in trust until earned, contrary to
former SCR 20:1.15(b)(4).
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¶6 Counts Seven and Eight charge that
by converting to his own purposes $5825 in
fees advanced by two clients, Attorney
Gedlen engaged in conduct involving
dishonesty, fraud, deceit or
misrepresentation, contrary to former SCR
20:8.4(c), and by failing to deposit this
sum into his trust account, Attorney Gedlen
violated former SCRs 20:1.15(a) (effective
through June 30, 2004) and 20.1.15(b)(4).
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¶7 Count Nine states that by
withdrawing fee advances from his trust
account between January 1, 2003, and
December 31, 2005, prior to earning those
fees or notifying his clients the fees had
been earned, Attorney Gedlen failed to abide
by requirements for handling disbursements
for fees, contrary to former SCRs 20:8.4(f)
and 20:1.15(g).
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¶8 Counts Ten and Eleven allege that by
failing to maintain an individual ledger for
each client or third party for whom he
received funds in trust, including a monthly
schedule of the subsidiary ledgers, and
failing to perform the required monthly
trust account reconciliation between January
1, 2003, and December 31, 2005, Attorney
Gedlen failed to maintain complete records
of funds held in trust, contrary to former
SCRs 20:1.15(e)(iii) and (iv) (effective
through June 30, 2004) and 20:1.15(f)(1)b
and g.
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¶9 Count Twelve charges that by
disbursing funds from trust in twelve client
matters on the same date as he deposited the
funds relating to those matters, Attorney
Gedlen failed to hold in trust funds
belonging to other clients and disbursed
funds from a trust account before the
deposit had cleared and the funds were
available, contrary to former SCRs 20:1.15
(a) (effective through June 30, 2004) and
20:1.15(e)(5)a.
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¶10 Count Thirteen states that by
failing to identify the client matter and
the reason for the disbursement on the memo
line of each check disbursed from his trust
account, particularly those that he
disbursed to himself or his firm, Attorney
Gedlen failed to comply with recordkeeping
requirements, contrary to former SCR 20:1.15
(f)(1)e.1.
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¶11 Counts Fourteen and Fifteen allege
two instances of violating former SCRs 20:8.4
(f) and 22.03(2) and (6). They allege that
by failing to respond to multiple letters
from the OLR requesting information
regarding real estate proceeds with respect
to Attorney Gedlen's own divorce, and by
altering six trust account stubs he provided
to the OLR during an investigation to
obscure information on those stubs, Attorney
Gedlen willfully failed to provide relevant
information in the course of an
investigation and made misrepresentations.
Count Sixteen states that Attorney Gedlen
engaged in conduct involving dishonesty
contrary to former SCR 20:8.4(c) by altering
the six trust account check stubs to obscure
them.
¶12 Next, Counts Seventeen through
Twenty-five relate to client G.K., who
retained Attorney Gedlen to represent him in
divorce proceedings. On November 17, 2003,
Attorney Gedlen deposited $66,093.97 into
his trust account, constituting G.K.'s
portion of the family home sale proceeds.
On December 2, 2003, before disbursing a
check totaling $72,547.65 to another client,
Attorney Gedlen's trust account balance was
$125,310.45. Following the $72,547.65
disbursement, the trust account balance was
reduced to $52,762.80. By making this other
client's disbursement, Attorney Gedlen
improperly utilized funds belonging to G.K.
Between December 2, 2003, and April 30,
2004, Attorney Gedlen disbursed 30 checks
totaling $15,270.37 to either himself or his
law firm from funds in trust attributable to
G.K. By April 21, 2004, Attorney Gedlen
converted all, or virtually all, of G.K.'s
funds for his own purposes and his trust
account balance fell to $145.37.
¶13 In August 2004 Attorney Gedlen
obtained a loan from S.L.K., which he used
to deposit $65,000 into his trust account.
G.K. had made several unsuccessful attempts
to recover his funds and obtain an
accounting before Attorney Gedlen eventually
delivered funds and provided an accounting.
In January 2005 S.L.K. filed a civil action
against Attorney Gedlen due to Attorney
Gedlen's failure to repay the $65,000 loan
and was granted judgment against him.
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¶14 Counts Seventeen, Eighteen, and
Nineteen allege that by converting to his
own purposes the $66,093.97 held in trust
for G.K., Attorney Gedlen violated three
supreme court rules: he committed a
criminal act reflecting adversely on his
honesty, trustworthiness or fitness as a
lawyer, contrary to former SCR 20.8.4(b); he
engaged in dishonesty, fraud, deceit or
misrepresentation, contrary to former SCR
20:8.4(c); and he failed to hold the
property of his client in trust, contrary to
former SCR 20:1.15(a) (effective through
June 30, 2004).
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¶15 Count Twenty states that by failing
to disburse funds to which G.K. was entitled
from June 14, 2004, to August 19, 2004,
despite G.K.'s repeated requests, Attorney
Gedlen violated former SCRs 20:1.15(b)
(effective through June 30, 2004) and 20:1.15
(d)(1). Count Twenty-one alleges that by
failing to respond to G.K.'s request for an
accounting and for information regarding his
funds, Attorney Gedlen violated former SCR
20.1.15(d)(2). Count Twenty-two states that
by depositing a $65,000 personal loan from
S.L.K. into his trust account, Attorney
Gedlen deposited funds belonging to him into
his trust account, contrary to former SCR
20:1.15(b)(3).
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¶16 Count Twenty-three alleges that by
misrepresenting to G.K. the reason for his
failure to make timely payment to G.K.,
Attorney Gedlen engaged in conduct involving
dishonesty, fraud, deceit and
misrepresentation in violation of former SCR
20:8.4(c). Count Twenty-four charges that
by misrepresenting to the OLR that G.K.'s
funds had always been held in trust,
Attorney Gedlen violated former SCRs 20:8.4
(f) and 22.03(2) and (6). Count Twenty-five
states that by failing to respond to
multiple letters from the OLR requesting a
response to the G.K. grievance, Attorney
Gedlen willfully failed to provide relevant
information and answer questions during the
course of an investigation, contrary to
former SCRs 20:8.4(f) and 22.03(2) and (6).
¶17 Counts Twenty-six through Twenty-
eight involve client A.G., who retained
Attorney Gedlen in May 2004 to represent him
in a divorce action. A.G. paid Attorney
Gedlen a $2000 retainer. In January 2005
A.G. received an invoice from Attorney
Gedlen indicating a credit balance of $200
and $600 owing for future services. A.G.
paid the $600 and requested an itemized
bill. Attorney Gedlen failed to provide an
itemized bill.
¶18 Following A.G.'s complaint to the
OLR, the OLR's investigation revealed that
Attorney Gedlen's trust account balance in
July 2004 was inadequate to cover the
unearned portion of A.G.'s fees. An OLR
audit disclosed that Attorney Gedlen never
deposited A.G.'s $2000 advance fee into his
trust account. The itemization provided to
the OLR showed that Attorney Gedlen had
performed only 4.35 hours of work relating
to A.G.'s divorce as of July 2004, and owed
A.G. a balance of at least $1011.14.
Attorney Gedlen failed to respond to the
OLR's request for a response to the A.G.
grievance.
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¶19 Count Twenty-six alleges that by
converting for his own purposes A.G.'s
advance fee, Attorney Gedlen engaged in
conduct involving dishonesty, fraud, deceit
or misrepresentation contrary to former SCR
20:8.4(c). Count Twenty-seven states that
by failing to deposit the advance fee into
his trust account, Attorney Gedlen failed to
hold his client's property in trust separate
from his own property, contrary to former
SCR 20:1.15(a) (effective through June 30,
2004). Count Twenty-eight alleges that by
failing to respond to the OLR's letters
between November 22, 2005, and January 3,
2006, requesting a response regarding the
A.G. grievance, Attorney Gedlen willfully
failed to provide relevant information and
answer questions in the course of the
investigation as required by former SCRs
20:8.4(f) and 22.03(2) and (6).
¶20 Based on the testimony and exhibits
presented at the hearing, the referee found
that Attorney Gedlen had made out at least
69 unauthorized checks from his client trust
account to himself, and that the trust
account showed insufficient funds on four
occasions. The referee found Attorney
Gedlen converted $103,826.41 of trust
account funds to his own use. Based on the
finding that Attorney Gedlen committed 28
counts of misconduct as alleged in the
amended complaint, the referee recommended
revocation of Attorney Gedlen's license to
practice law in Wisconsin. Attorney Gedlen
has not appealed.
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¶21 This court upholds the referee's
findings of fact unless clearly erroneous
and independently reviews the referee's
legal conclusions. See In re
Disciplinary Proceedings Against Carroll,
2001 WI 130, ¶29, 248 Wis. 2d 662, 636
N.W.2d 718. This court approves and adopts
the referee's unchallenged findings of fact
and conclusions of law.
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¶22 It is this court’s responsibility to
determine the appropriate discipline.
See In re Disciplinary Proceedings
Against Reitz, 2005 WI 39, ¶74, 279 Wis.
2d 550, 694 N.W.2d 894. This court
considers the seriousness of the misconduct,
the need to protect the public, courts and
the legal system from repetition of
misconduct, the need to impress upon the
attorney the seriousness of the misconduct,
and the need to deter other attorneys from
engaging in similar misconduct. See
In re Disciplinary Proceedings Against
Arthur, 2005 WI 40, ¶78, 279 Wis. 2d 583,
634 N.W.2d 910. This court agrees with the
referee that the seriousness of Attorney
Gedlen's misconduct warrants the revocation
of his license to practice law. We conclude
that Attorney Gedlen should be responsible
for the costs the OLR incurred in this
disciplinary proceeding. The sum of
$4005.82 costs are imposed against Attorney
Gedlen. We further conclude that as a
condition of reinstatement Attorney Gedlen
is required to demonstrate that restitution
is not owed.
¶23 IT IS ORDERED that the license of
James M. Gedlen to practice law in Wisconsin
is revoked, effective the date of this
opinion. It is a condition of reinstatement
that James M. Gedlen is required to
demonstrate that restitution is not owed.
¶24 IT IS ORDERED that within 60 days of
the date of this opinion James M. Gedlen pay
to the Office of Lawyer Regulation the costs
of this proceeding in the sum of $4005.82.
If the costs are not paid within the time
specified, and absent a showing to this
court of his inability to pay the costs
within that time, the license of James M.
Gedlen will remain revoked until further
order of the court.
¶25 IT IS FURTHER ORDERED that to the
extent he has not done so, James M. Gedlen
comply with the provisions of SCR 22.26
concerning the duties of a person whose
license to practice law in Wisconsin has
been revoked.
¶26 ANNETTE K. ZIEGLER, J., did not
participate.
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