Disciplinary Proceedings Against Armstrong
2015 WI 60, 6/24/2015 (2015)
|
ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a
stipulation filed pursuant to Supreme Court
Rule (SCR) 22.12 by the Office of Lawyer
Regulation (OLR) and Attorney Jenny R.
Armstrong. In the stipulation, Attorney
Armstrong does not contest that she
committed nine counts of professional
misconduct and that a two-year suspension of
her license to practice law in Wisconsin is
appropriate discipline. The parties further
stipulate that Attorney Armstrong should pay
$60,899.81 in restitution to a former client.
¶2 Attorney Armstrong was licensed to
practice law in Wisconsin in 1979. She
resides in Middleton. She has not
previously been the subject of a
disciplinary proceeding.
¶3 During the events giving rise to
this matter, Attorney Armstrong was a
licensed real estate broker doing business
as ABA Realty, Inc. She was the only broker
employed by the firm. Attorney Armstrong
was licensed by the office of the Insurance
Commissioner of Wisconsin to sell life,
accident, and health insurance lines for
several companies.
¶4 From the 1980s until October 2005,
Attorney Armstrong had an attorney-client
relationship with a woman we shall refer to
as B.R.T. B.R.T. was born in October 1924.
Briefly stated, Attorney Armstrong engaged
in a lengthy pattern of misconduct,
repeatedly overbilling her client, and
ultimately, between 2000 and 2005, charging
her client $170,651.95 for various tasks,
many of which were not legal in nature.
¶5 In June 2000, Attorney Armstrong
sold B.R.T. a deferred annuity policy for a
single premium of $5,000. Attorney
Armstrong received an immediate four and one-
half percent commission on the policy in the
sum of $225. At the time B.R.T. purchased
the annuity policy, Attorney Armstrong was
doing legal work, financial planning, and
financial management for B.R.T. and billing
B.R.T. for it. Attorney Armstrong did not
disclose to B.R.T. in writing that Attorney
Armstrong would receive a commission on the
sale of the annuity policy prior to B.R.T.
entering into the transaction. Attorney
Armstrong did not obtain B.R.T.'s written
consent to the transaction involving
Attorney Armstrong's receipt of a commission
on the sale of the annuity policy prior to
the transaction.
|
|
|
¶6 The OLR alleged and the parties have
stipulated that, by selling to her legal
client an annuity policy in June 2000, for
which Attorney Armstrong received a
commission, without obtaining a separate
written consent from the client waiving the
conflict of interest and indicating the
client was given reasonable opportunity to
consult with independent counsel, and in a
transaction that was not fair or reasonable
to the client, Attorney Armstrong violated
former SCR 20:1.8(a) (Count One).
¶7 In June 2005, B.R.T. executed a
listing contract giving Attorney Armstrong's
realty firm, ABA Realty, Inc., the exclusive
right to sell B.R.T.'s duplex. Attorney
Armstrong prepared and executed the listing
contract, which included a "list price" of
$450,000 and provided for a broker's
commission of seven percent if the
conditions for earning the commission were
satisfied. At the time Attorney Armstrong
and B.R.T. entered into the listing
contract, Attorney Armstrong was performing
legal and other services relative to the
duplex and the sale of the duplex and
billing B.R.T. for that work. Attorney
Armstrong did not obtain B.R.T.'s written
consent to the transaction involving
Attorney Armstrong's receipt of a commission
on the sale of the duplex prior to B.R.T.
entering into the listing contract.
|
|
|
¶8 The OLR alleged and the parties have
stipulated that, by contracting with B.R.T.
to act as her real estate agent in the sale
of her duplex for a seven percent
commission, while simultaneously acting as
her lawyer with respect to the sale, without
obtaining a separate written consent from
the client waiving the conflict of interest
and indicating that the client was given
reasonable opportunity to consult with
independent counsel, Attorney Armstrong
violated former SCR 20:1.8(a) (Count Two).
¶9 In April 2001, Attorney Armstrong
prepared and filed joint income tax returns
for B.R.T. and her husband for the 2000 tax
year. Attorney Armstrong billed the couple
$3,430.88. The couple paid in full. The
income tax returns prepared by Attorney
Armstrong contained errors, and Attorney
Armstrong either knew or should have known
of the errors, or knew or should have known
that she did not have sufficient information
to complete accurate returns and that the
necessary information could have been
obtained from the clients or other sources.
¶10 In May 2002, the United States
Internal Revenue Service (IRS) notified the
couple of a deficiency and proposed changes
to the 2000 tax return, which increased the
taxes they owed by $2,156. The IRS demanded
an additional payment of $2,717, which
included interest.
¶11 In December 2002, Attorney Armstrong
disputed the IRS's proposed changes to the
return and asserted that the clients were
entitled to a $435 tax refund. Attorney
Armstrong petitioned the United States Tax
Court for a hearing on behalf of the
couple. She also prepared and submitted an
amended Form 1040 for the 2000 tax year
which, as it turned out, also included
several errors.
¶12 Shortly before the scheduled trial
date, the IRS completed an audit and reduced
the amount of the clients' tax deficiency;
the clients agreed to a stipulation offered
by the IRS, under which they agreed to pay
$1,136 in additional tax, plus $195 in
interest, for a total additional payment of
$1,331.
¶13 Attorney Armstrong then billed
B.R.T. and her husband $4,118.95 for
responding to the IRS notice of deficiency.
The clients paid in full.
|
|
|
¶14 The OLR alleged and the parties have
stipulated that, by preparing and filing her
clients' tax returns for 2000 without
accurate information that she already knew,
should reasonably have known, or could have
readily obtained, thereby resulting in a tax
deficiency and added legal expenses for her
clients, Attorney Armstrong violated SCR
20:1.3 (Count Three).
|
|
|
¶15 In addition, by charging additional
fees of $4,118.95 to reduce an IRS tax
deficiency determination from $2,156 to
$1,136, Attorney Armstrong violated former
SCR 20:1.5(a) (Count Four).
¶16 From some time before 2000 and
through September 2005, Attorney Armstrong
invoiced B.R.T. a flat fee of $500 per month
for services identified under a matter name
of "POA/Financial." Attorney Armstrong's
records indicate that between April 2000 and
October 2005 she spent from two to four and
one-half hours per month, with a monthly
average of 2.69 hours, on this matter.
Attorney Armstrong's work on this matter was
mostly nonprofessional clerical work, such
as receiving, scanning, and filing dividend
checks, depositing checks, writing checks,
and bookkeeping.
¶17 However, the monthly invoices issued
to B.R.T. under the "POA/Financial" matter
described the activities as "professional
services," such as "Received, Reviewed,
Processed Financial Documents for the Month,
Conferences with Client and Financial
Advisors." The parties stipulate that these
descriptions did not fairly or accurately
describe the services performed, and
included work that was not properly billable
to a client.
¶18 Attorney Armstrong sought to justify
the flat fee arrangement by estimating two
hours of work per month, billed at her
normal hourly rate of $250 for professional
services. However, the actual legal work
consisted of about 15 minutes or less per
month. The remainder of the time was spent
on non-legal clerical activities. Attorney
Armstrong charged the monthly $500 flat rate
despite language in both the 1998 and 2004
powers of attorney setting her compensation
as reimbursement for "all reasonable costs
and expenses actually incurred and paid" on
behalf of the client.
|
|
|
¶19 The OLR alleged and the parties have
stipulated that, by billing B.R.T. a flat
fee of $500 per month from May 1, 2000,
through October 1, 2005, for legal work that
generally consisted of only 15 minutes or
less, despite the aforementioned language in
the written powers of attorney, Attorney
Armstrong violated former SCR 20:1.5(a)
(Count Five).
¶20 In addition, between September 1,
2004, and November 1, 2005, Attorney
Armstrong billed B.R.T. somewhere between
$58,422.32 and $62,815.20 for what was
primarily nonprofessional work assisting
B.R.T. with matters related to her duplex.
This work included "general contractor" type
of services (such as consulting with her
client about needed repairs, soliciting
bids, and helping select contractors such as
painters, carpenters, plumbers, and the
like); property manager services (such as
dunning tenants for unpaid rent, fielding
complaints, keeping accounting records for
rents, listing the duplex for lease, and
seeking new tenants); retaining and
supervising workers to clean the duplex;
personally sorting and boxing the client's
personal property; and running errands (such
as picking up parts and supplies, boxes,
plastic bags, packing tape, mulch, and the
like).
¶21 Attorney Armstrong charged her
client at her professional rate of $250 per
hour for these services and charged her
client $150 per hour for services performed
by legal assistants.
|
|
|
¶22 The OLR alleged and the parties have
stipulated that, by charging her $250 hourly
rate as an attorney, and by charging her
paraprofessional staff rate of $150 per
hour, for the aforementioned nonprofessional
work, Attorney Armstrong violated former SCR
20:1.5(a) (Count Six).
¶23 B.R.T.'s husband, John, died in
April 2004, and B.R.T. retained Attorney
Armstrong to perform legal services relative
to John's estate. When John died, he owned
a 1993 Mercury Sable automobile, the
depreciated value of which was likely less
than ten percent of its original base price
of $17,500. Attorney Armstrong billed
B.R.T. approximately $3,265 for services in
cancelling the auto insurance on the vehicle
and transferring the vehicle title to John's
daughter.
|
|
|
¶24 The OLR alleged and the parties have
stipulated that, by charging B.R.T.
approximately $3,265 during 2004 and 2005 to
cancel auto insurance and transfer a vehicle
title, Attorney Armstrong violated former
SCR 20:1.5(a) (Count Seven).
|
|
|
¶25 In December 1998, an entity named
Trustmark issued a check payable to B.R.T.
in the sum of $315. In July 2004, B.R.T.
attempted to deposit the check, but her bank
rejected and returned the check as stale.
B.R.T. gave Attorney Armstrong the stale
check and asked her to try to get a
replacement. The parties have stipulated
that between July 15 and October 26, 2004,
Attorney Armstrong billed B.R.T.
approximately $562.50 to attempt to have a
$315 stale check reissued, thereby violating
former SCR 20:1.5(a) (Count Eight).
|
|
|
¶26 Finally, following John's death,
B.R.T. wanted to close John's AOL account.
The parties have stipulated that Attorney
Armstrong billed B.R.T. about $385 for the
work to cancel this account, thereby
violating former SCR 20:1.5(a) (Count Nine).
¶27 Attorney Armstrong has stipulated
that she understands the misconduct
allegations; that she understands her right
to contest this matter; that she understands
her right to consult with counsel, and has
done so; that she understands the
ramifications should the court impose a two-
year suspension; and that her entry into the
stipulation is made knowingly and
voluntarily and represents her admission to
the facts and to the alleged misconduct and
her agreement with the level of discipline
sought by the OLR, as well as her assent to
making restitution as recommended by the
OLR. The stipulation states that it did not
result from plea-bargaining.
|
|
|
¶28 With respect to restitution, the
parties stipulated that $16,500 represents a
reasonable fee for the "POA/Financial"
services. The OLR recommends that we
require Attorney Armstrong to make
restitution to B.R.T. in the sum of $16,500
for these services.
¶29 With respect to the IRS notice of
deficiency, the stipulation provides that
$500 represents a reasonable fee for the
services performed. The OLR recommends that
we require Attorney Armstrong to make
restitution to B.R.T. in the sum of
$3,618.95 for this matter.
¶30 With respect to the work performed
relating to the duplex, the stipulation
provides that $8,307.64 represents a
reasonable fee for the services performed.
The OLR recommends that we require Attorney
Armstrong to make restitution to B.R.T. in
the sum of $37,568.36 for these services.
¶31 With respect to the estate of
B.R.T's husband, the stipulation provides
that $1,000 represents a reasonable fee for
the services performed. The OLR recommends
that we require Attorney Armstrong to make
restitution to B.R.T. in the sum of
$3,212.50 in this matter.
¶32 Attorney Armstrong's professional
misconduct, including the systematic
overcharging of her client, is deplorable.
Her misconduct is aggravated by her refusal
to acknowledge wrongdoing throughout much of
the investigation. Her conduct absolutely
warrants a lengthy suspension of her license
to practice law.
|
|
|
¶33 After reviewing the matter, we
approve the stipulation, in part to
facilitate payment of restitution to the
victim and in reliance on the cases cited by
the OLR in support of a two-year
suspension. See, e.g., In re
Disciplinary Proceedings Against Gilbert,
227 Wis. 2d 444, 595 N.W.2d 715 (1999). We
suspend Attorney Armstrong's license to
practice law in this state for a period of
two years. We direct Attorney Armstrong to
pay restitution to B.R.T. in the amount of
$60,899.81. Because this matter is being
resolved without the appointment of a
referee, and because the OLR has not sought
costs, we do not impose the costs of this
proceeding on Attorney Armstrong.
¶34 IT IS ORDERED that the license of
Jenny R. Armstrong to practice law in
Wisconsin is suspended for a period of two
years, effective July 24, 2015.
¶35 IT IS FURTHER ORDERED that within 60
days of the date of this order, Jenny R.
Armstrong shall pay $60,899.81 in
restitution to B.R.T.
¶36 IT IS FURTHER ORDERED that Jenny R.
Armstrong shall comply with the provisions
of SCR 22.26 concerning the duties of a
person whose license to practice law in
Wisconsin has been suspended.
¶37 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.29(4)(c).
|
|
|