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¶14 Attorney Gorokhovsky appeals. He
challenges the referee's findings as
incomplete and challenges each of the
referee's conclusions of misconduct as
incorrect. He also appeals from the
referee's recommendation that he should be
publicly reprimanded and ordered to pay the
full costs of this disciplinary proceeding.
We consider Attorney Gorokhovsky's arguments
in turn.
¶15 Attorney Gorokhovsky first argues
that the referee's findings of fact are
incomplete in that the referee did not make
findings summarizing the testimony that a
certain witness gave at the disciplinary
hearing. Attorney Gorokhovsky appears to
argue that the testimony of this witness was
highly relevant in that it purportedly
supported his decision to pursue a sentence
modification motion without F.B.'s consent
and justified his lack of communication with
F.B.
¶16 The referee obviously disagreed with
this argument and we do also. Nothing in
this witness's testimony at the disciplinary
hearing legitimizes Attorney Gorokhovsky's
decision to pursue a litigation strategy
contrary to his client's express wishes,
with little in the way of lawyer-client
communication. The referee's failure to
make findings of fact summarizing the
particular testimony at issue was harmless.
¶17 Attorney Gorokhovsky next argues
that the referee incorrectly granted a
motion in limine filed by the OLR on the
first morning of the disciplinary hearing.
The motion sought to exclude evidence of
supposed off-the-record, in-chambers
statements made by a circuit court judge覧
whom Attorney Gorokhovsky did not name as a
disciplinary hearing witness覧during F.B.'s
criminal proceedings.
¶18 We reject this argument. Although
Attorney Gorokhovsky criticizes the motion
in limine as having been filed untimely, he
does not identify any specific deadline set
by the referee for motions in limine, nor
does he satisfactorily demonstrate any
prejudice from the timing of the motion.
Any prejudice to Attorney Gorokhovsky from
the granting of the motion in limine was
self-inflicted by his failure to arrange for
his desired witness's presence at the
disciplinary hearing. Moreover, Attorney
Gorokhovsky does not argue that the
referee's grant of the motion in limine on
hearsay grounds was substantively incorrect.
¶19 Attorney Gorokhovsky next argues
that his representation of F.B. was proven
to be competent by virtue of the fact that a
different lawyer, an assistant state public
defender, eventually filed a motion making
the ineffective assistance claim that D.B.
had wanted Attorney Gorokhovsky to pursue,
and the circuit court denied this motion.
¶20 We reject this argument. Simply
because F.B.'s preferred litigation strategy
did not succeed does not mean that Attorney
Gorokhovsky acted with the legal knowledge,
skill, thoroughness, and preparation
reasonably necessary to provide competent
representation. By rendering legal advice
without speaking to his client, reading
trial transcripts or reviewing key evidence,
Attorney Gorokhovsky failed to provide
competent representation.
¶21 Attorney Gorokhovsky next attempts
to persuade us that F.B. was to blame for
the lack of lawyer-client communication, and
that additional such communication was
unnecessary given his familiarity with
F.B.'s case.
¶22 We reject this argument. Attorney
Gorokhovsky's argument does not alter the
established facts that: (1) Attorney
Gorokhovsky never consulted with F.B. before
filing the sentence modification motion, and
(2) Attorney Gorokhovsky never sought to
withdraw the motion after learning of F.B.'s
disapproval of the motion. By any measure,
these are troublesome failures in lawyer-
client communication.
¶23 Attorney Gorokhovsky next claims
that his acceptance of compensation for
legal services from D.B.覧a non-client覧did
not constitute misconduct because he
reasonably assumed that F.B. had authorized
him to receive compensation from D.B., and
because there was no proof that this payment
arrangement interfered with his professional
judgment.
¶24 We reject this argument. The record
shows that Attorney Gorokhovsky never
obtained F.B.'s consent after consultation
regarding the payment arrangement with D.B.,
as our rules require. The record further
shows that Attorney Gorokhovsky declined to
perform certain work on F.B.'s behalf
because D.B. was having difficulty paying
for Attorney Gorokhovsky's legal services.
These facts demonstrate the
inappropriateness of the payment
arrangement.
¶25 Attorney Gorokhovsky next attempts
to persuade us that his discussions with
D.B. about F.B.'s case without F.B.'s
consent, and his decision to follow D.B.'s
strategic instructions rather than F.B.'s
strategic instructions, did not amount to
misconduct. Attorney Gorokhovsky claims
that he reasonably assumed that F.B. wanted
D.B. to oversee his case.
¶26 We reject this argument as
unsupported by the record. The established
facts show that Attorney Gorokhovsky was
careless with his client's confidences and
instructions, and such conduct is clearly
unethical.
¶27 Attorney Gorokhovsky next takes
issue with the referee's determinations that
he had back-dated one of his letters to F.B.
to make it appear as though he had sent F.B.
certain case materials on an earlier date,
and that he had misled the OLR by submitting
a copy of this back-dated letter to the OLR
during the course of its investigation.
Attorney Gorokhovsky claims that his actions
were not willfully misleading.
¶28 We reject this argument. The
referee's determinations are fact-intensive
and involve an implicit evaluation of
Attorney Gorokhovsky's credibility. Because
Attorney Gorokhovsky has not shown that the
referee's findings with regard to the letter
in question were clearly erroneous, we
affirm the conclusion of misconduct on this
count.
¶29 Finally, Attorney Gorokhovsky
challenges the referee's conclusion that he
charged an unreasonable fee by, among other
things, charging over $8,000 in attorney
fees to pursue a postconviction motion that
had not been authorized by F.B., submitting
various duplicative and excessive charges,
and charging approximately $400 in fees for
pursuing his fees. He claims that his fees
were authorized by a representation
agreement that D.B. never signed, and that
there was no proof that his charges were
unreasonable.
¶30 We reject this argument. The
referee's findings with respect to the fees
charged by Attorney Gorokhovsky are not
clearly erroneous. Further, we agree that
these facts support the subsequent
conclusion of law that Attorney
Gorokhovsky's billing practices were
unethical.
¶31 In sum, after our review of the
record in this matter, we conclude that the
referee's findings of fact are not clearly
erroneous. We agree with the referee's
legal conclusion that Attorney Gorokhovsky's
conduct as alleged in Counts 1 through 8 of
the complaint amounted to violations of the
Rules of Professional Conduct for
Attorneys. We therefore adopt the referee's
findings of fact and conclusions of law.
¶32 We appreciate that we may not have
addressed each and every one of the
arguments presented by Attorney Gorokhovsky
challenging the referee's findings and
conclusions. To the extent we have not,
such arguments are deemed denied. See
Libertarian Party of Wisconsin v.
Wisconsin,
199 Wis. 2d 790, 801, 546 N.W.2d 424 (1996)
(appellate court need not discuss arguments
unless they have "sufficient merit to
warrant individual attention").
¶33 Turning to the question of the
appropriate discipline, the OLR requested,
and the referee recommended, that a public
reprimand be issued as discipline for
Attorney Gorokhovsky's misconduct. Attorney
Gorokhovsky argues that a public reprimand
is excessive discipline in view of the facts
of this matter. He explains that whatever
errors he may have committed were caused by
an overzealous, good faith desire to help
F.B. for which he should not be unduly
punished. He also claims that his conduct
should be excused as a necessary part of his
learning curve as a lawyer. He argues that
a private reprimand would be an appropriate
sanction.
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