OLR Compendium > Public Reprimand of Alysia E. La Counte

Public Reprimand of Alysia E. La Counte

2009-OLR-7

Attorney Alysia E. La Counte, 41, of Madison, was the subject of a grievance investigation that resulted in findings of professional misconduct. On the basis of the misconduct, summarized below, OLR sought and Attorney La Counte consented to a public reprimand conditioned on the payment of restitution.

In March 1998, the then-governing council of the Saginaw Chippewa Indian Tribe of Michigan (the Tribe) hired Attorney La Counte’s law firm (the Firm) to represent the Tribe. Attorney La Counte was one of two owners and managing partners of the Firm. The Tribe’s legal work was brought to the Firm by La Counte’s husband, an attorney who was not licensed to practice law in Wisconsin. The Firm hired La Counte’s husband and another attorney as contract attorneys to perform legal work related to the Firm’s representation of the Tribe. However, both La Counte and her partner failed to supervise the two contract attorneys’ work on behalf of the Tribe and allowed La Counte’s husband to be the attorney primarily responsible for some portions of the representation.

Between March 1998 and August 10, 1999, the Firm represented the Tribe regarding membership and election disputes and regarding efforts to amend the Tribe’s constitution. As part of that representation, in addition to consulting with and advising the then-governing council (the Hiring Council), the Firm: drafted proposed amendments to the Tribe’s constitution and related documents; supervised and advised members of the Tribe in collecting the signatures required to call an election on the proposed amendments; assisted with filing the amendments and related documents with the relevant federal agency; communicated with the federal agencies and officials whose approval or actions would be needed to call an election on the proposed amendments; and communicated with federal agencies and officials regarding the election disputes.

On August 10, 1999, following several elections invalidated by the Hiring Council due to election disputes, the Assistant Secretary of the Interior directed his subordinates to withdraw federal recognition of the Hiring Council as the government of the Tribe and to recognize instead the persons who had received the most votes in the most recent invalidated primary election until a valid election could be held (the Interim Council). On or about August 10, 1999, the Interim Council took control of the government of the Tribe. On August 11, 1999, the Interim Council terminated the Firm’s representation of the Tribe.

Between August 10 and 16, 1999, the Firm filed two lawsuits attempting to block or reverse the Assistant Secretary of the Interior’s decision and to restore the deposed members of the Hiring Council as the recognized government of the Tribe. First, in the Appellate Court of the Saginaw Chippewa Indian Tribe, the Firm filed an action on behalf of the deposed Chief and five of the deposed members of the Hiring Council. Second, in the United States District Court for the Eastern District of Michigan, the Firm filed an action purporting to represent the Tribe, but acting at the direction of the deposed Chief and five of the deposed members of the Hiring Council.

In November 1999, the members of the Interim Council were elected to regular two- year terms. Despite several protests filed with the Interim Council and challenges filed in Tribal court, on December 7, 1999 the newly elected council members (comprised of the same members as the Interim Council, including two members of the former Hiring Council) took the oath of office (the Elected Council).

Between August 1999 and January 5, 2000, the Firm represented some of the deposed members of the Hiring Council in the Tribal court action without obtaining a written consent from the Interim or Elected Councils. On January 5, 2000, the Appellate Court of the Saginaw Chippewa Indian Tribe held that the Assistant Secretary of the Interior had no legal authority under Tribal or federal law to intervene in the Tribe’s dispute or to determine the Tribe’s government; however, the court denied any relief to the deposed members of the Hiring Council and held that the Elected Council formed the legitimate government of the Tribe under Tribal law.

Between August 1999 and February 11, 2000, the Firm purported to represent the Tribe in the United States District Court action, while acting at the direction of some of the deposed members of the Hiring Council without obtaining a written consent from the Interim or Elected Councils. On February 11, 2000, the United States District Court for the Eastern District of Michigan dismissed the suit pending in the District Court, finding that the decision of the Tribal court deprived the District Court of jurisdiction. The Firm filed a motion asking the District Court to amend the dismissal order to allow the Firm to file a second amended complaint with brief, which the District Court denied. The Firm then filed an appeal of the District Court’s dismissal, again purporting to act on behalf of the Tribe but acting at the direction of some of the deposed members of the Hiring Council. On July 6, 2000, the appeal was dismissed by stipulation.

Between December 28, 1999 and March 25, 2003, the Firm represented the proponents of the constitutional amendment efforts, contrary to the interests of the Tribe as determined by the Elected Council, without obtaining a written consent from the Elected Council. Between September 22 and December 28, 1999, the Firm advocated to the Bureau of Indian Affairs that the amendment petitions prepared and filed during the Firm’s representation of the Tribe were sufficient to cause the Secretary to call an election on the proposed amendments. The Interim and Elected Councils opposed the amendments and argued that the petitions were not sufficient. On December 28, 1999, the Bureau issued a decision that the petition lacked the number of signatures necessary to call an election. On January 5, 2000, the Firm filed suit in the United States District Court for the Eastern District of Michigan, seeking to force the Bureau to schedule an election on the amendments. On August 21, 2001, the Court held that the petitioners had gathered the required signatures and ordered the Bureau of Indian Affairs to call and hold the election. However, between December 26, 2001 and December 20, 2002, the Bureau failed to call and hold an election on the proposed amendments, based at least in part on the Tribe’s requests for additional time to negotiate the language of the amendments with the petitioners represented by the Firm. On December 20, 2002, when the election had still not been called, the Firm filed a motion for contempt and a motion to compel the election.

Former SCR 20:1.9(a), in effect through June 30, 2007, stated, “A lawyer who has formerly represented a client in a matter shall not… represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation…”

Attorney La Counte violated former SCR 20:1.9 (a) as follows: Between August 11, 1999 and March 25, 2003, by representing and allowing her Firm to represent some of the deposed members of the Hiring Council and the proponents of the constitutional amendment movement, when in each such matter the representation was materially adverse to the interests of the Tribe, the representation involved the same or a substantially related matter to the Firm’s former representation of the Tribe, and the Firm failed to obtain written consent from the Tribe to the adverse representation.

On August 11, 1999, the Chief of the Interim Council had requested that the Firm send the Tribe an immediate accounting of the funds paid to the Firm by the Tribe along with all related billing records. The Firm did not provide the Tribe with any accounting or billing records until May 2000 and the Firm did not provide a sufficient response until July 28, 2000.

Attorney La Counte violated former SCR 20:1.15(b), in effect from January 1, 1998 through October 1, 2000, which stated, “Upon receiving funds or other property in which a client or third person has an interest…and, upon request by the client or third person, shall render a full accounting regarding such property…” by failing, prior to July 28, 2000, to provide or to cause her Firm to provide the Tribe with a full accounting of the advanced fees and costs delivered to the Firm prior to August 11, 1999, when the Tribe made reasonable requests for an accounting in August 1999 and in May 2000.

On July 29 and 30, 1999 the Firm disbursed more than the Firm held in trust, when the Firm disbursed two checks totaling $59,674.48 at a time when the trust account held total client funds of $27,639.97. On August 2, 1999, the Firm drew on a line of credit to deposit $59,674.48 in the trust account. The Firm inaccurately characterized the $59,674.48 deposit on the Firm’s client ledgers for the Tribe as a loan or advance from the Firm to the Tribe.

The records the Firm provided to the Tribe in July 2000 misrepresented that the $59,674.48 deposited in the trust account on August 2, 1999 was a loan or an advance from the Firm to the Tribe. The records also misrepresented that disbursements made by the Firm from Tribe funds held in trust on November 11, 1999 were “repayment[s]” to the Firm of a loan or advance to the Tribe.

Attorney La Counte violated SCR 20:8.4(c), which states, “It is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation…” by causing or participating with her Firm to send documents to the Tribe which misrepresented that her Firm had made a loan to the Tribe and that several disbursements from the Tribe funds held in trust by the Firm represented repayments of that loan.

During the Firm’s representation of the Tribe and the Firm’s later representation of some of the deposed members of the Hiring Council and the proponents of the constitutional amendment process, Attorney La Counte’s husband was not an employee, associate or partner of the Firm, or of counsel to the Firm. However, between September 1999 and June 2005, Attorney La Counte’s husband held himself out as of counsel to the Firm. Further, between September 1999 and June 2005, Attorney La Counte’s husband held himself out and the Firm held him out as an employee, associate, or partner of the Firm.

Attorney La Counte violated SCR 20:7.5(d), which states, “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact...” and SCR 20:8.4(a), which states, “It is professional misconduct for a lawyer to… violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another…” by engaging in a course of conduct in which she and her Firm held her husband out as an employee, associate or partner of her firm and allowed him to hold himself out as of counsel to the Firm, when he was a contract attorney independent of the Firm at all relevant times.

In August 1998, the Firm hired an Arizona-based attorney (who was not licensed to practice law in Wisconsin) as a contract attorney to assist with the Firm’s representation of the Tribe. While it was the Firm who hired the contract attorney, Attorney La Counte and her partner allowed Attorney La Counte’s husband to be primarily responsible for supervising the contract attorney’s work on behalf of the Tribe. The Firm paid the contract attorney $90 per hour for legal services he performed related to the Tribe and $55 per hour for his travel time related to such services, but the Firm billed the Tribe $125 per hour for the same work and travel time. The Firm thereby charged the Tribe a $35 per hour markup on services provided and a $70 per hour markup on travel time by the contract attorney.

The Firm did not advise the Tribe that it had hired the Arizona-based attorney as a contract attorney, nor did the Firm provide a copy of his contract to the Tribe, disclose to the Tribe the division of fees between the contract attorney and the Firm or obtain the Tribe’s agreement to the division of fees. Between late August 1998 and August 10, 1999, the Firm profited $73,360 from the undisclosed markups on the contract attorney’s work and travel time.

Attorney La Counte violated Former SCR 20:1.5 (e), in effect through June 30, 2007, which stated, “A division of fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved and is informed if the fee will increase as a result of their involvement; and (3) the total fee is reasonable...” by causing and allowing her Firm to charge the Tribe a $35 per hour markup on services provided and a $70 per hour markup on travel time by the contract attorney when such markup was not proportionate to the services performed by the contract attorney and the Firm, and the Firm did not obtain the Tribe’s written agreement to the markup or the division of fees with the contract attorney.

Attorney La Counte has no prior discipline.

In accordance with SCR 22.09(3), Attorney Alysia E. La Counte is hereby publically reprimanded. As a condition of the imposition of the reprimand, Attorney La Counte agreed to pay restitution of $36,680 to the Saginaw Chippewa Indian Tribe of Michigan, and she is hereby ordered to make restitution pursuant to the terms of the agreement.