Disciplinary Proceedings Against Templin
2016 WI 18, 3/29/2016 (2016)
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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. We review the report
and recommendation of Referee Hannah C.
Dugan that the license of Attorney Thor
Templin be suspended for a period of six
months for professional misconduct and that
he pay the full costs of this proceeding,
which are $7,564.50 as of October 19, 2015.
The referee also recommends that Attorney
Templin be required to make restitution
totaling $500 to two clients and that he be
required to complete six hours of continuing
legal education (CLE), concentrating on
civil procedure and/or appellate practice
and approved by the Office of Lawyer
Regulation (OLR), as a precondition to
reinstatement.
¶2 Upon careful review of the matter,
we adopt the referee's findings of fact and
conclusions of law. We agree that a six-
month suspension of Attorney Templin's
license is an appropriate sanction for his
misconduct. We also conclude that the full
costs of the proceeding should be assessed
against him, and we also agree that he
should be required to make restitution
totaling $500 to two clients and that he
should be required to complete six hours of
CLE.
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¶3 Attorney Templin was admitted to
practice law in Wisconsin in 2008 and
practices in Milwaukee. His disciplinary
history consists of a consensual private
reprimand for failing to act diligently and
failing to communicate appropriately in a
client matter, and for failing to return
files. Private Reprimand 2011-04.
¶4 On February 12, 2015, the OLR filed a
complaint alleging that Attorney Templin
committed 12 counts of misconduct involving
four clients.
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¶5 Attorney Templin filed an answer to
the complaint on March 13, 2015. Referee
Dugan was appointed on March 31, 2015. On
July 2, 2015, the parties sent the referee a
stipulation that included a withdrawal of
Attorney Templin's answer and his plea of no
contest to all counts of misconduct. The
parties sent the referee an amended
stipulation on July 6, 2015. The amended
stipulation provided that the referee could
use the factual allegations of the complaint
as an adequate basis in the record for a
determination of misconduct as to all 12
counts.
¶6 The parties jointly recommended that
the referee determine that a recommended
sanction in the matter be a four-month
suspension of Attorney Templin's Wisconsin
law license. The parties further stipulated
that Attorney Templin should be required to
make restitution to two clients in the total
amount of $500 and that he be required to
complete six hours of CLE concentrating on
civil procedure and/or appellate practice,
with the coursework to be approved by the
OLR, as a precondition to his reinstatement.
Attorney Templin represented that he fully
understands the misconduct allegations; that
he fully understands his right to contest
the matter; that he fully understands the
ramifications of his entry into the
stipulation; that he fully understands that
he has the right to counsel and has chosen
to represent himself; and that his entry
into the stipulation is made knowingly and
voluntarily and is not the product of plea-
bargaining.
¶7 The referee issued her report and
recommendation on September 29, 2015. The
referee found that the OLR had met its
burden of proof with respect to all counts
of misconduct alleged in the complaint.
¶8 Counts 1-5 of the OLR's complaint
arose out of Attorney Templin's
representation of J.S. J.S. was divorced
from M.S. in July 2008. Attorney Templin
commenced his representation of J.S. in
December 2008. In August 2011,
approximately three years after the divorce
judgment, Attorney Templin filed a notice of
motion and motion for relief from the
judgment of divorce or, in the alternative,
to set aside the judgment of divorce for
fraud on the court. Attorney Templin's
motion challenged M.S.'s financial
disclosures.
¶9 On October 10, 2011, M.S.'s attorney
sent a letter to Attorney Templin, which
included a motion for sanctions requesting
that Attorney Templin withdraw his frivolous
pleadings. The motion was based on legal
grounds that included Wis. Stat. § 806.07,
requiring a motion for relief from judgment
to be filed within one year of the judgment.
¶10 On October 25, 2011, Attorney
Templin filed an amended notice of motion
and motion for relief from the judgment of
divorce or to set aside the judgment of
divorce for fraud on the court or, in the
alternative, to create a trust under Wis.
Stat. § 767.125(5). On November 1, 2011, a
hearing was held before Calumet County
Family Court Commissioner James Fitzgerald.
The court commissioner determined that
Attorney Templin's motion was not timely
filed; that at least one of Attorney
Templin's arguments involved "great leaps of
reasoning that did not make sense;" and that
there was no basis in fact for most of the
allegations made by J.S. and that such
allegations were frivolous. Accordingly,
Attorney Templin's amended motion was
dismissed with prejudice.
¶11 Attorney Templin filed a request for
a de novo hearing. A hearing was conducted
before Judge Wilber Warren III on March 27,
2012. Judge Warren issued a decision in
August 2012 denying the motion to reopen the
judgment and also denying the imposition of
a constructive trust. Judge Warren found
the claims for relief to be frivolous. In a
September 10, 2012 order, Judge Warren
ordered J.S. and/or Attorney Templin to pay
$6,526.22 in attorneys fees to M.S.
¶12 J.S. filed a Chapter 7 bankruptcy
petition in April 2014, attempting to
discharge the "attorneys fees" sanction.
Attorney Templin's firm represented J.S.
M.S.'s new attorney advised that the
attorneys fees obligation was not a
dischargeable debt under bankruptcy laws.
¶13 M.S. filed a grievance against
Attorney Templin with the OLR. Attorney
Templin repeatedly failed to respond to the
OLR's requests for a response to the
grievance. Attorney Templin did finally
respond on September 12, 2013.
¶14 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Templin's representation of
J.S.:
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[Count 1] By filing a motion (and
amended motion) for relief from a divorce
judgment years after the applicable time
limits had passed and advancing arguments
devoid of factual or legal support, Templin
violated SCR 20:1.1.
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[Count 2] By knowingly filing a motion
(and
amended motion) for relief from a divorce
judgment years after the applicable time
limits had passed and advancing arguments
unwarranted under existing law, with no good
faith argument existing for an extension,
modification, or reversal of existing law,
Templin violated SCR 20:3.1(a)(1).
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[Count 3] By filing a motion (and
amended motion) for relief from a divorce
judgment years after the applicable time
limits had passed and advancing arguments
devoid of factual or legal support, by later
filing a bankruptcy action on behalf of the
client seeking to discharge his own sanction
obligations imposed by the trial court, and
by filing the bankruptcy action one day prior
to a scheduling hearing on a Contempt/Show
Cause proceeding on the underlying sanction
order, Templin took multiple actions on
behalf of his client when he knew or when it
was obvious that such action would serve
merely to harass or maliciously injure
another, in violation of SCR 20:3.1(a)
(3).
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[Count 4] By failing to comply with the
September 10, 2012 trial court sanction order
requiring Templin and his client (jointly and
severally) to pay $6,526.22 to the client's
former husband within 30 days of the order,
Templin knowingly disobeyed an obligation of a
tribunal, in violation of SCR 20:3.4(c).
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[Count 5] By failing to provide
relevant
information to OLR in a timely fashion,
Templin violated SCR 22.03(2), which is
enforceable under the Rules of Professional
Conduct through SCR 20:8.4(h).
¶15 Counts 6-8 of the OLR's complaint
arose out of Attorney Templin's
representation of A.H. In 2009, the State of
Wisconsin filed a petition to terminate
A.H.'s parental rights to his son. Following
a dispositional hearing in February 2011,
A.H. involuntarily lost his parental rights
to his son. Following an appeal and a
subsequent trial on remand, the trial court
entered an order terminating A.H.'s parental
rights to his son. A.H. appealed this order.
His appointed appellate counsel filed a no-
merit brief on A.H.'s behalf.
¶16 On December 5, 2012, the court of
appeals entered an order summarily affirming
the trial court's order terminating A.H.'s
parental rights.
¶17 Pursuant to Wis. Stat. § 809.24(1), a
motion for reconsideration of a court of
appeals' decision must be filed within 20
days of the court of appeals' order.
Pursuant to Wis. Stat. § 808.10(1), a
petition for review must be filed with this
court within 30 days of the court of appeals'
decision. A failure to comply with the 30-
day deadline for filing a petition for review
deprives this court of subject matter
jurisdiction.
¶18 On January 4, 2013, A.H. met with
Attorney Templin and paid him $300 in cash to
review his case file for purposes of possibly
filing a petition for review. A.H. believed
he had until January 7, 2013, to file a
petition for review. In fact, the filing
deadline was January 4, 2013. Attorney
Templin failed to advise A.H. that,
subsequent to January 4, 2013, nothing
further could be done on the case.
¶19 A.H. attempted to reach Attorney
Templin in January and February of 2013
without success. In March 2013, A.H.
submitted documents to Attorney Templin in an
attempt to show his continued efforts to see
his son. In April 2013, Attorney Templin met
with A.H., returned his files, and stated
there was nothing further to be done in the
matter.
¶20 A.H. filed a grievance with the OLR
against Attorney Templin. Attorney Templin
failed to respond to the OLR's requests for a
response to the grievance.
¶21 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Templin's representation of A.H.:
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[Count 6] By failing to respond
promptly to [A.H.'s] multiple requests for
information regarding his case, Templin failed
to comply with reasonable requests by [A.H.]
for information, in violation of SCR 20:1.4(a)
(4).
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[Count 7] By failing to explain to
[A.H.] that the deadline for filing a Petition
for Review with the Supreme Court, or that all
other applicable appellate deadlines, had
expired on or before January 4, 2013, Templin
failed to explain matters to [A.H.] in a way
that would permit him to make informed
decisions about his representation, in
violation of SCR 20:1.4(b).
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[Count 8] By accepting a $300 fee to
review
[A.H.'s] file for purposes of a potential
appeal to the Supreme Court, on the same day
as the deadline for filing any kind of appeal
or petition for review expired, thereby
precluding any meaningful action in the case,
Templin charged an unreasonable fee, in
violation of SCR 20:1.5(a).
¶22 Count 9 of the OLR's complaint arose
out of Attorney Templin's representation of
V.K., who retained Attorney Templin in May
2013 to commence a divorce action. Attorney
Templin prepared legal papers purportedly for
the purpose of commencing the divorce action
and mailed them to the Racine County Clerk of
Court for filing. The clerk of court
returned the divorce pleadings, unfiled, to
Attorney Templin with a note indicating that
the family court commissioner would not
accept the documents for filing because
Attorney Templin also needed to file an order
to show cause and affidavit for temporary
relief.
¶23 Attorney Templin prepared an order to
show cause and affidavit for temporary relief
and mailed the documents to the clerk of
court. The documents were again returned
with a statement that Attorney Templin had
failed to properly follow local Racine County
court rules. Thereafter, Attorney Templin
downloaded the court documents that are
accessible online for pro se litigants and
filled out the information necessary to
initiate the divorce action on behalf of V.K.
Those documents were submitted to the clerk
of court and were once again rejected. V.K.
fired Attorney Templin via email on or about
July 22, 2013.
¶24 The OLR's complaint alleged the
following count of misconduct with respect to
Attorney Templin's representation of V.K.:
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[Count 9] By failing to properly
prepare and
file [V.K.'s] Petition for Divorce in Racine
County Circuit Court, Templin failed to
provide competent representation to his
client, in violation of SCR 20:1.1.
¶25 Counts 10-12 of the OLR's complaint
arose out of Attorney Templin's
representation of C.B., a veteran who had a
history of receiving medical care from the
Veterans Administration (VA). In June 2008,
C.B. was involved in a serious auto accident
which resulted in him being flown to
Froedtert Memorial Lutheran Hospital
(Froedtert) where he remained for
approximately three months. After payment of
certain amounts by the VA, the amount owing
from C.B. to Froedtert was $79,442.07.
¶26 On August 28, 2012, Froedtert filed a
summons and complaint against C.B. in
Milwaukee County circuit court. C.B. met
with Attorney Templin on September 21, 2012,
and discussed the need to file an answer and
a third party summons and complaint against
the VA.
¶27 Attorney Templin filed an answer and
affirmative defenses on September 24, 2012.
A pretrial conference was held on November 5,
2012. The scheduling order issued that day
imposed a December 5, 2012 deadline for
filing amendments to the pleadings, including
the naming of any additional parties. The
scheduling order imposed a deadline of March
5, 2013, for the parties to file all
dispositive motions, imposed deadlines to
identify witnesses and damage claims, and
imposed a deadline for discovery, as well as
a deadline to complete mediation.
¶28 On December 5, 2012, Attorney Templin
filed a third party summons and complaint
against the VA. Despite apparent efforts to
obtain service on the VA, service was never
obtained. Attorney Templin never filed a
witness list on behalf of C.B.
¶29 On March 5, 2013, Froedtert filed a
motion for summary judgment with supporting
memorandum and affidavit. Attorney Templin
did not file any responsive pleadings. On
April 22, 2013, Attorney Templin sent an
email to Froedtert's counsel indicating he
never received the summary judgment motion.
Another copy of the motion was sent to
Attorney Templin.
¶30 On April 22, 2013, Attorney Templin
sent a letter asking the judge for an
adjournment of the April 24, 2013 summary
judgment motion hearing. Attorney Templin's
request was denied.
¶31 The scheduling order had also
required the parties to complete mediation
before April 4, 2013. The attorneys never
communicated over the subject of mediation.
¶32 On April 24, 2013, the circuit court
granted Froedtert's motion for summary
judgment. Attorney Templin never adequately
advised C.B. about the pending summary
judgment motion or various legal options
available to him concerning the motion. C.B.
received no communication or contact from
Attorney Templin after April 24, 2013.
Ultimately, C.B. filed bankruptcy in 2014 and
the judgment in favor of Froedtert was
discharged.
¶33 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Templin's representation of C.B.:
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[Count 10] By failing to properly serve
the VA; by failing to submit a witness list or
detailed damage claims; and/or by failing to
respond to the Motion for Summary Judgment
filed by the plaintiff in the case, Templin
failed to provide competent representation to
his client, in violation of SCR 20:1.1.
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[Count 11] By failing to secure service
on a third-party defendant, file a witness
list as required in the Scheduling Order,
pursue mediation, or file any dispositive
motions, Templin failed to provide diligent
representation to his client, in violation of
SCR 20:1.3.
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[Count 12] By failing to advise [C.B.]
of the pending Motion for Summary Judgment, or
the subsequent entry of a judgment against
him, as well as failing to discuss the options
available to him regarding his case, Templin
failed to explain matters to [C.B.]
sufficiently to enable him to make informed
decisions regarding his representation, in
violation of SCR 20:1.4(b), and failed to keep
his client reasonably informed about the
status of the matter, in violation of SCR
20:1.4(a)(3).
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¶34 By entering into the amended
stipulation, Attorney Templin admitted the
facts underlying all 12 counts of the OLR's
complaint. The referee concluded that the OLR
met its burden of proof as to all 12 counts.
The referee further agreed with the parties'
amended stipulation that Attorney Templin be
required to make restitution in the amount of
$300 to A.H. and $200 to V.K. The referee
further agreed with the parties' amended
stipulation that Attorney Templin be required
to complete six hours of CLE, concentrating on
civil procedure and/or appellate practice and
approved by the OLR, as a precondition to
reinstatement.
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¶35 Turning to the appropriate sanction,
while the parties' amended stipulation jointly
recommended a four-month suspension, the
referee concluded that a six-month suspension
was appropriate. The referee commented that
the one mitigating factor in the case was
Attorney Templin's lack of an extensive
disciplinary history. The referee identified
a number of aggravating factors, including
multiple offenses, a pattern of misconduct, an
intentional failure to comply with rules or
orders of the disciplinary agency, and
vulnerability of the victims.
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¶36 The referee noted that Attorney
Templin is a staff attorney employed at a
nonprofit law firm directing services for
economically disadvantaged clients who have
few or no lawyer retention options. The
referee also found a lack of remorse or
acceptance of responsibility for Attorney
Templin's actions, as well as a significant
number of violations occurring in a
relatively short period of time since he was
licensed to practice law. The referee also
expressed concern about Attorney Templin's
understanding of his violation of supreme
court rules, the seriousness of the
violations, the inappropriateness of his
conduct, and the effect of his violations of
the rules. The referee noted that, while the
disciplinary proceeding was pending, Attorney
Templin attempted to voluntarily resign from
the State Bar. His resignation request was
held in abeyance pending the outcome of this
disciplinary proceeding. The referee also
commented that she was concerned about
Attorney Templin's understanding and attitude
towards meeting the professional standards
imposed on a member of the bar, and said his
"conduct during these proceedings raises
substantial concerns about [his]
understanding of and attitude toward court
proceedings and toward future clients' needs
and expectations."
¶37 The referee concluded that a six-
month suspension was necessary for Attorney
Templin to understand and accept the
responsibilities of the legal profession and
the ethical constraints placed upon its
practice. She said the resultant full
reinstatement proceeding, pursuant to SCRs
22.29-22.33, is necessary for the court to be
certain that Attorney Templin has complied
with the supreme court rules during the term
of his suspension and that he is prepared to
comply with the standards of professional
practice and the expectations of clients
served under a Wisconsin law license.
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¶38 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.
¶39 There is no showing that any of the
referee's findings of fact are clearly
erroneous. Accordingly, we adopt them. We
also agree with the referee's conclusions of
law that Attorney Templin violated the
supreme court rules set forth above.
¶40 With respect to the appropriate level
of discipline, upon careful review of the
matter, we agree with the referee's
recommendation for a six-month suspension of
Attorney Templin's license to practice law in
Wisconsin. Although no two disciplinary
proceedings are identical, a six-month
suspension is generally consistent with the
sanction imposed in In re Disciplinary
Proceedings Against Hartigan, 2005 WI 3,
277
Wis. 2d 341, 690 N.W.2d 831 (attorney's
license suspended for six months for six
counts of misconduct involving two client
matters) and In re Disciplinary Proceedings
Against Boyd, 2009 WI 59, 318 Wis. 2d 281,
767 N.W.2d 226 (attorney's license suspended
for six months for 13 counts of misconduct
arising out of five client matters).
¶41 We agree with the referee's
recommendation, based upon the parties'
stipulation, that Attorney Templin be
required to make restitution to A.H. in the
amount of $300 and to V.K. in the amount of
$200. We further agree that, as a
precondition of license reinstatement,
Attorney Templin be required to complete six
hours of CLE, concentrating on civil
procedure and/or appellate practice, as
approved by the OLR. We also find it
appropriate to impose the full costs of this
disciplinary proceeding on Attorney Templin.
¶42 IT IS ORDERED that the license of
Thor Templin to practice law in Wisconsin is
suspended for a period of six months,
effective May 3, 2016.
¶43 IT IS FURTHER ORDERED that, as a
condition of the reinstatement of his license
to practice law in Wisconsin, Thor Templin
shall successfully complete six hours of
continuing legal education, concentrating on
civil procedure and/or appellate practice, as
approved by the Office of Lawyer Regulation.
¶44 IT IS FURTHER ORDERED that within 60
days of the date of this order, Thor Templin
shall pay to the Office of Lawyer Regulation
the costs of this proceeding, which are
$7,564.50.
¶45 IT IS FURTHER ORDERED that within 60
days of the date of this order, Thor Templin
shall make restitution in the amount of $300
to A.H. and in the amount of $200 to V.K.
¶46 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the Office
of Lawyer Regulation.
¶47 IT IS FURTHER ORDERED that Thor
Templin shall comply with the provisions of
SCR 22.26 concerning the duties of an
attorney whose license to practice law has
been suspended.
¶48 IT IS FURTHER ORDERED that compliance
with all conditions of this order is required
for reinstatement. See SCR 22.29(4)(c).
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¶49 SHIRLEY S. ABRAHAMSON, J.
(concurring). I join the per curiam. I
write separately, however, to discuss a
procedural issue posed in the instant case
relating to current OLR practice: How should
the OLR address multiple investigations of a
lawyer during substantially the same time
period? Should the OLR propose disciplining
an attorney in one disciplinary proceeding
only to support a different discipline or
suspension of the license in the near future
in another proceeding?
¶50 To understand the procedural issue, I
state key dates relating to OLR's case
against Attorney Thor Templin.
¶51 OLR's complaint in the instant matter
was filed on February 15, 2015. OLR and
Attorney Templin entered into a stipulation
on July 6, 2015. The referee issued her
report on September 29, 2015.
¶52 While the court was considering the
instant OLR matter against Attorney Templin,
on December 16, 2015, the OLR advised the
court that it was investigating Attorney
Templin on another matter. Notice of this
other investigation is an open, public
record.
¶53 This kind of issue arose in In re
Disciplinary Proceedings Against Osicka,
2014 WI 33, ¶36, 353 Wis. 2d 656, 847 N.W.2d
343. There the referee commented critically
about the OLR's filing two complaints within
about a year of each other complaining about
conduct in which the attorney engaged during
approximately the same period. The referee
explained:
It is unclear why the matters involving
[Attorney Osicka] resulted in the filing of
two separate cases. . . . [E]verything else
charged in the present Complaint . . . pre-
dated the filing, on January 11, 2012, of the
earlier complaint in 2012AP60–D, and the OLR
had knowledge of all the violations at least
several months before January 11, 2012 when
the earlier Complaint was filed. . . . The
point is, there should have been only one
Complaint.
¶54 The instant case raises an anomaly
similar to one the referee raised in the
Osicka case. This anomaly and other
issues in the OLR's procedures have been
brought to the attention of the court.
Several issues to be addressed have been
described.
¶55 In this regard, I suggested that the
court should institute a review of the OLR
system, which is about 15 years old. Others
have joined me in this suggestion. Since
October 2013, Keith Sellen, Director of the
OLR, and Justices Ann Walsh Bradley, N.
Patrick Crooks, and David Prosser expressed
interest in such a proposal. Justice Prosser
commented at an open rules conference on
January 20, 2015, that he favored a "top
down" review of the OLR.
¶56 To put this suggestion before the
court, I filed Rule Petition 15-01 on
February 6, 2015, asking the court to create
supreme court rules establishing a Lawyer
Regulation Review Committee to undertake a
comprehensive review of the Rules of
Professional Conduct for Attorneys and the
organization, operation, and procedures of
the lawyer discipline system.
¶57 All commentators were supportive of
the petition. Nevertheless, after treating
the petition as a valid rule petition for
almost a year, on November 16, 2015, five
justices voted to dismiss the petition on the
ploy that it was an improper subject matter
for a rule petition: David T. Prosser,
Patience Roggensack, Annette K. Ziegler,
Michael J. Gableman, and Rebecca G. Bradley.
¶58 Justice Ann Walsh Bradley and I
dissented from the dismissal.
¶59 The order dismissing the petition
states that the dismissal does not
necessarily end prospects for the appointment
of a committee. Unfortunately, however,
decisions about whether a committee will be
established, the composition of the
committee, the mission of the committee, and
how the committee will function will be made
behind closed doors. Yet lawyer discipline
is of great importance to the court, to the
lawyers of the state, and to the public.
¶60 I write separately to address an
anomaly that was revealed in Osicka and
to repeat my commitment to try to keep the
bench, the bar, and the public generally
informed as best I can about what progress
(or lack thereof) is made in the appointment
of the committee. As of this date, no
progress has been made to create the
committee.
¶61 For the reasons set forth, I concur
but write separately.
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