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¶6 On January 6, 2015, the OLR filed a
motion for default judgment. On January 20,
2015, the referee issued an order advising
Attorney D'Arruda that if an answer to the
second amended complaint was not filed by
February 16, 2015, default judgment would be
entered. Attorney D'Arruda failed to file
an answer to the second amended complaint or
otherwise appear in the case. On March 11,
2015, the referee issued an order
recommending that default judgment be
granted to the OLR. The referee's report
and recommendation followed on March 24,
2015.
¶7 The allegations in the OLR's second
amended complaint, which are discussed in
detail in the referee's report, will not be
extensively repeated here. We will briefly
summarize the incidents giving rise to the
misconduct.
Representation of S.N. (Counts One through
Three)
¶8 In 2011, S.N. hired Attorney
D'Arruda to represent him in a criminal
misdemeanor case in Waukesha County.
Attorney D'Arruda failed to promptly comply
with S.N.'s reasonable requests for
information, failed to sign a substitution
request and promptly surrender S.N.'s file
to successor counsel, and failed to provide
the OLR with a written response to S.N.'s
grievance.
Representation of O.W. (Counts Four
through Seven)
¶9 In October 2011, a probation agent
took O.W. into custody on suspicion of
manufacturing and delivering heroin and
other parole violations. O.W. hired
Attorney D'Arruda to represent him in a
probation revocation proceeding and against
potential criminal charges. Attorney
D'Arruda failed to communicate with O.W. or
respond to his requests for information,
failed to provide final accountings, failed
to notify O.W. that he wished to terminate
the representation, failed to turn over
O.W.'s file and refund unearned fees, and
failed to provide the OLR with a written
response to O.W.'s grievance.
Grievance of W.C. (Count Eight)
¶10 On March 2, 2012, the OLR received a
written grievance from W.C. against Attorney
D'Arruda. Attorney D'Arruda failed to
provide the OLR with his written response to
the grievance in a timely fashion. The OLR
eventually determined that it had
insufficient evidence to pursue misconduct
counts directly related to Attorney
D'Arruda's representation of W.C.
Representation of A.M. and J.H. (Counts
Nine and Ten)
¶11 In 2012, A.M. hired Attorney
D'Arruda to represent her son, J.H. A.M.
signed a fee agreement allowing Attorney
D'Arruda to place his fees into his business
account. The agreement required Attorney
D'Arruda to provide A.M. with a final
accounting upon termination of his
representation. A.M. paid Attorney D'Arruda
$1,600 in fees. Attorney D'Arruda deposited
those fees into his business account. In
April 2013, Attorney D'Arruda moved to
withdraw from J.H.'s case because of a
conflict. The circuit court granted that
request. After withdrawal, Attorney
D'Arruda failed to provide A.M. with a final
accounting or notices, which Supreme Court
Rule (SCR) 20:1.15(b)(4m) requires,
regarding fee disputes and arbitration.
Attorney D'Arruda also failed to provide the
OLR with a written response to A.M.'s
grievance in a timely fashion.
Representation of Y.L. (Counts 11-15)
¶12 In November 2012, the state charged
Y.L. with two felonies. Y.L. was initially
represented by a different attorney but, in
March 2013, a friend of Y.L. contacted
Attorney D'Arruda about representing Y.L.
The friend signed a fee agreement for Y.L.
with Attorney D'Arruda. The friend was not
authorized to sign on Y.L.'s behalf.
Attorney D'Arruda never gave Y.L. a copy of
the fee agreement. The friend paid Attorney
D'Arruda an advanced fee of $1,000 to
represent Y.L., and later paid him an
additional $500 in the matter. Attorney
D'Arruda did not appear at Y.L.'s trial, did
not respond to voicemails and text messages
from Y.L., and did not give Y.L. an
accounting of fees, refund the $1,500, or
provide Y.L. with information on disputing
the fee. He also failed to provide the OLR
with a written response to Y.L.'s grievance.
Grievance of A.A. Sr. and A.A. Jr. (Count
16)
¶13 On April 5, 2013, the OLR received a
grievance from A.A. Sr. and A.A. Jr.
regarding Attorney D'Arruda's representation
of A.A. Jr. Attorney D'Arruda failed to
file a timely response to the grievance.
The OLR eventually determined that it had
insufficient evidence to prove misconduct
directly related to Attorney D'Arruda's
conduct in his representation of A.A. Jr.
Grievance of S.O. (Count 17)
¶14 On February 27, 2013, the OLR
received a written grievance from S.O.
Attorney D'Arruda failed to file a timely
response to the grievance. The OLR
subsequently determined that it had
insufficient evidence to prove misconduct
directly related to Attorney D'Arruda's
conduct in his representation of S.O.
Representation of D.P. (Counts 18-20)
¶15 In December 2013, Attorney D'Arruda
represented D.P. in a Milwaukee County
case. A jury trial was scheduled for
December 2, 2013. Attorney D'Arruda failed
to appear for the scheduled jury trial.
Instead, another attorney appeared with a
letter from Attorney D'Arruda addressed to
the judge. Attorney D'Arruda's letter
represented that, as of November 26, 2013,
the OLR had temporarily suspended Attorney
D'Arruda's license to practice law.
Attorney D'Arruda requested that the court
adjourn the trial. In fact, Attorney
D'Arruda's law license was not suspended as
of either November 26 or December 2, 2013.
Attorney D'Arruda also failed to provide the
OLR with a written response to D.P.'s
grievance in a timely fashion.
Representation of S.N. and R.M. (Counts 21-
26)
¶16 In July 2013, the state charged S.N.
with two misdemeanors. In February 2014,
S.N. was charged with a felony. On February
27, 2014, this court ordered Attorney
D'Arruda to show cause by March 19, 2014,
why his license to practice law should not
be suspended for failure to cooperate with
the OLR's investigation of several matters.
Attorney D'Arruda failed to respond to the
order to show cause.
¶17 On March 29, 2014, S.N.'s mother,
R.M., hired Attorney D'Arruda to represent
S.N. in the two criminal cases. R.M. signed
a fee agreement and paid Attorney D'Arruda
an advanced fee of $2,000. On April 10,
2014, Attorney D'Arruda appeared in S.N.'s
misdemeanor case and filed a request for
substitution of attorneys. He never
appeared in S.N.'s felony case.
¶18 On April 16, 2014, this court
temporarily suspended Attorney D'Arruda's
license for noncooperation in several
matters. Attorney D'Arruda never notified
S.N. or the judges presiding in her cases of
his suspension. Attorney D'Arruda did not
give S.N. or R.M. an accounting of fees,
refund the $2,000, or provide information on
disputing the fee. Attorney D'Arruda failed
to respond to S.N.'s grievance. In August
2014, the Wisconsin Lawyers' Fund for Client
Protection (Fund) paid R.M. $2,000 for
reimbursement of money given to Attorney
D'Arruda.
Representation of I.P. and D.M. (Counts 27-
31)
¶19 In June 2013, the state charged I.P.
with multiple felonies. On January 2, 2014,
I.P.'s mother, D.M., hired Attorney D'Arruda
to represent I.P. D.M. signed a fee
agreement and paid Attorney D'Arruda an
advanced fee of $1,500. On March 3, 2014,
Attorney D'Arruda appeared with I.P. at a
status conference. A trial date was set for
May 12, 2014. By April 11, 2014, D.M. had
paid Attorney D'Arruda an additional
$1,600. On April 16, 2014, Attorney
D'Arruda's license was temporarily
suspended. Attorney D'Arruda never notified
I.P. of his suspension. He failed to
provide an accounting of fees, failed to
refund fees, and failed to respond to the
OLR's grievance investigation.
Representation of T.S. (Counts 32-36)
¶20 On February 22, 2014, the state
charged T.S. with multiple misdemeanors.
T.S. hired Attorney D'Arruda to represent
him on April 1, 2014. T.S. signed a fee
agreement and paid Attorney D'Arruda an
advanced fee of $500. Attorney D'Arruda
appeared with T.S. at a status conference on
April 11, 2014. Attorney D'Arruda never
notified T.S. that his law license was
temporarily suspended on April 16, 2014. He
did not give T.S. an accounting of fees, did
not refund the $500, and did not provide
T.S. with information about disputing the
fee. In August 2014, the Fund paid T.S.
$500 for reimbursement of money given to
Attorney D'Arruda.
Representation of L.S. and L.L. (Counts 37-
42)
¶21 On December 4, 2013, the state
charged L.S. with a felony. On January 20,
2014, the state charged L.S. with additional
felonies. On March 5, 2014, L.S.'s friend,
L.L., hired Attorney D'Arruda to represent
L.S. in the criminal cases. L.L. signed a
fee agreement on L.S.'s behalf and paid
Attorney D'Arruda an advanced fee of
$2,500. Attorney D'Arruda appeared at a
status conference on March 27, 2014. A
pretrial was scheduled for May and a trial
date was set for June. Attorney D'Arruda
failed to notify L.S. or the circuit court
that his law license was temporarily
suspended on April 16, 2014. Attorney
D'Arruda failed to provide L.S. or L.L. with
an accounting of fees, failed to refund the
$2,500, and failed to provide information on
disputing the fee. Attorney D'Arruda also
failed to respond to the OLR's request for
information about L.L.'s grievance.
¶22 The referee said that, although
Attorney D'Arruda was given several
extensions and was encouraged to file an
answer to the second amended complaint, he
instead chose to default. The referee
commented that, by failing to appear and
explain his misconduct, Attorney D'Arruda
put the referee in a most difficult
position. Given Attorney D'Arruda's failure
to appear and respond to the allegations in
the case, the referee found that the OLR met
its burden of proof with respect to all
allegations in the second amended complaint.
¶23 With respect to the appropriate
sanction, the referee noted that this case
includes many instances where Attorney
D'Arruda accepted monetary payments from
clients for legal services he was to
render. In many instances, those initial
payments by clients were placed into
Attorney D'Arruda's business account rather
than into his trust account. Attorney
D'Arruda repeatedly failed to provide an
itemized statement to his clients or
otherwise account for the disposition of
payments received from his clients. The
referee said that this conduct was similar
to that for which Attorney D'Arruda was both
privately and publicly reprimanded in the
past. The referee said:
I am most bothered by the fact that in
numerous instances, when Attorney D'Arruda
knew his license to practice law was going
to be temporarily suspended, he continued to
accept new cases and payments from new
clients, knowing he was about to have his
license temporarily suspended. Without the
benefit of an explanation from Attorney
D'Arruda, I can only conclude that Attorney
D'Arruda knowingly accepted monetary
payments from new clients and that he had no
intention of fulfilling his duties to
represent the clients or return the money
once his license was temporarily suspended.
In other words, Attorney D'Arruda
intentionally took money from new clients
with no intention of providing legal
services to them and with no intention of
refunding the money paid by these clients.
This is intentional misconduct of a most
serious nature.
¶24 The referee said that Attorney
D'Arruda's misconduct was most serious and
repetitive in nature. The referee opined
that a high level of discipline is needed to
protect the public and the legal
professional against such misconduct and
that a high level of discipline is also
needed to impress upon Attorney D'Arruda the
seriousness of his misconduct and deter
similar misconduct by other lawyers. While
the referee commented that Attorney
D'Arruda's misconduct could justify
revocation of his law license, the referee
ultimately agreed with the level of
discipline sought by the OLR, a three-year
suspension of Attorney D'Arruda's license.
In addition, the referee recommended that
Attorney D'Arruda be ordered to pay
restitution of $1,500 to Y.L., $2,500 to
L.L., and $2,500 to the Fund ($2,000 for
S.N. and R.M.; $500 for T.S.). Finally, the
referee recommended that Attorney D'Arruda
be required to pay the full costs of the
proceeding.
¶25 Attorney D'Arruda has not filed an
appeal from the referee's report and
recommendation.
¶26 We agree with the referee that
Attorney D'Arruda should be declared in
default. Although Attorney D'Arruda was
personally served with the second amended
complaint and was given notice of the
hearing on the motion for default judgment,
he failed to appear or present a defense.
Accordingly, we deem it appropriate to
declare him in default.
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