Disciplinary Proceedings Against Kaupie
2015 WI 81, 7/15/2015 (2015)
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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review, pursuant to
Supreme Court Rule (SCR) 22.17(2), the
report of the referee, Robert E. Kinney,
recommending that the court suspend Attorney
Joseph J. Kaupie's license to practice law
in Wisconsin for a period of five months for
professional misconduct in connection with
four client matters. No appeal has been
filed.
¶2 We approve and adopt the referee's
findings of fact and conclusions of law. We
conclude that Attorney Kaupie's misconduct
warrants a five-month license suspension
together with the imposition of full costs,
which total $2,309.41 as of March 31, 2015.
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¶3 Attorney Kaupie was licensed to
practice law in Wisconsin in 1999. He
resides in Wausau. Attorney Kaupie's
license has been administratively suspended
since October 31, 2011, for his failure to
pay mandatory State Bar dues and his failure
to file a trust account certification, and
since June 12, 2012, for failure to comply
with continuing legal education
requirements. In addition, on March 15,
2012, this court temporarily suspended
Attorney Kaupie's license for his willful
failure to cooperate in Office of Lawyer
Regulation (OLR) investigations concerning
his conduct. He has not previously been the
subject of disciplinary proceedings.
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¶4 On November 6, 2014, the OLR filed a
complaint alleging that Attorney Kaupie
committed 14 counts of professional
misconduct. By order dated December 15,
2014, Robert E. Kinney was appointed
referee. On March 9, 2015, the parties
filed a stipulation and no contest plea
agreement whereby Attorney Kaupie pled no
contest to the misconduct alleged in the
complaint. Attorney Kaupie acknowledged the
accuracy of the complaint's factual
allegations and the parties jointly
requested that the referee recommend a five-
month suspension.
Matter of D.B. (Counts One-Three)
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¶5 In November 2010, Attorney Kaupie
was appointed by the Office of the State
Public Defender (SPD) to represent D.B. on
D.B.'s appeal from his conviction for sexual
assault. Attorney Kaupie failed to respond
to telephone messages and failed to respond
to written communications from his client
and from the SPD. Attorney Kaupie had no
contact at any time with D.B. regarding his
appeal and, as a result, D.B.'s appellate
deadlines lapsed. The SPD eventually
removed Attorney Kaupie from its list of
attorneys eligible to receive post-
conviction appointments and a grievance was
filed. Attorney Kaupie then failed to
respond to repeated inquiries from the OLR
concerning the grievance. The referee
concluded, based on the parties'
stipulation, that Attorney Kaupie's conduct
in this matter violated SCR 20:1.3, SCR
20:1.4(a)(3) and (4), and SCR 22.03(2) and
(6), enforced via SCR 20:8.4(h).
Matter of P.E. (Counts Four-Seven)
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¶6 In 2010, Attorney Kaupie was
appointed by the SPD to represent P.E. in
post-conviction proceedings stemming from
his conviction, on entry of a guilty plea,
to burglary, receiving stolen property,
criminal damage to property, and two counts
of armed robbery. Attorney Kaupie did not
file a statement on transcript or a brief in
the case. He disregarded the court of
appeal's delinquency notice regarding his
failure to file P.E.'s brief. Attorney
Kaupie was removed from the appeal and the
SPD was ordered to appoint replacement
counsel. Attorney Kaupie then failed to
send successor counsel P.E.'s file and
failed to respond to repeated inquiries from
the OLR regarding the ensuing grievance
investigation. The referee concluded, based
on the parties' stipulation, that Attorney
Kaupie's conduct in this matter violated SCR
20:1.3, SCR 20:1.16(d), SCR 20:3.4(c), and
SCR 22.03(2) and (6), enforced via SCR 20:8.4
(h).
Matter of Y.M. (Counts Eight-Ten)
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¶7 In 2010, Attorney Kaupie was
appointed by the SPD to represent Y.M. in
post-conviction proceedings stemming from
his conviction, on entry of a guilty plea,
to several drug-related crimes and one count
of resisting/obstructing an officer.
Attorney Kaupie did not file a brief or do
meaningful work to advance Y.M.'s appeal.
Y.M. briefly met with Attorney Kaupie in the
prison but had no further communication with
him. Y.M. was unable to contact Kaupie by
telephone or by mail and eventually learned
that his appeal had been dismissed because
of Attorney Kaupie's failure to file a brief
on his behalf. Attorney Kaupie then failed
to respond to repeated inquiries from the
OLR regarding the ensuing grievance
investigation. The referee concluded, based
on the parties' stipulation, that Attorney
Kaupie's conduct in this matter violated SCR
20:1.3, SCR 20:1.4(a)(3) and (4), and SCR
22.03(2) and (6), enforced via SCR 20:8.4(h).
Matter of J.W. (Counts 11-14)
¶8 In December 2009, Attorney Kaupie
was appointed by the SPD to represent J.W.
in post-conviction proceedings stemming from
J.W.'s conviction for second degree sexual
assault of a child. Attorney Kaupie handled
a post-conviction motion but failed to
respond to multiple directives from the
court of appeals relating to J.W.'s appeal.
In August 2011, the court of appeals issued
an order rejecting a no-merit report filed
by Attorney Kaupie and ordering Attorney
Kaupie to pursue an appeal. Attorney Kaupie
did not respond to the court's order or to
communications from the SPD. In September
2011, the SPD suspended Attorney Kaupie "[b]
ased on your pattern of failing to
communicate with the court, our appellate
office and your client."
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¶9 Attorney Kaupie then failed to send
successor counsel J.W.'s file and failed to
respond to repeated inquiries from the OLR
regarding the ensuing grievance
investigation. The referee concluded, based
on the parties' stipulation, that Attorney
Kaupie's conduct in this matter violated SCR
20:1.3, SCR 20:1.16(d), SCR 20:3.4(c), and
SCR 22.03(2) and (6), enforced via SCR 20:8.4
(h).
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¶10 Attorney Kaupie has stipulated that
he fully understands the misconduct
allegations; that he understands his right
to contest this matter; that he understands
the ramifications should the court impose a
five-month suspension; and that his entry
into the stipulation is made knowingly and
voluntarily and represents his admission of
the alleged misconduct and his agreement
with the level of discipline sought by the
OLR. The parties asked the referee to
approve the stipulation and file a report
finding facts and misconduct consistent with
the stipulation and recommending that
Attorney Kaupie's license to practice law be
suspended for five months.
¶11 On March 11, 2015, the referee filed
his findings of fact, conclusions of law,
and recommendation in which he adopted the
parties' stipulated findings of fact,
determined that the OLR had proven by clear,
satisfactory, and convincing evidence that
Attorney Kaupie had engaged in the alleged
misconduct, recommended that Attorney
Kaupie's license to practice law be
suspended for five months, and recommended
imposition of full costs. No appeal was
filed from the referee's report and
recommendation. Restitution is neither
sought nor recommended in this matter.
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¶12 This court will affirm a referee's
findings of fact unless they are clearly
erroneous, but 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. This court is free to
impose whatever discipline it deems
appropriate, 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.
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¶13 As the referee observed, abandonment
of clients, especially those who are
vulnerable due to incarceration and
indigency, is a serious matter and Attorney
Kaupie's cooperation with the ensuing
investigation was "abysmal." The referee
was mindful, however, that Attorney Kaupie
had no prior disciplinary history and that
Attorney Kaupie acknowledged complete
culpability for his misconduct.
¶14 The stipulation discloses that in
2009, when this misconduct commenced,
Attorney Kaupie was a sole practitioner with
no office staff, practicing primarily in the
area of criminal defense. That year,
Attorney Kaupie's mother, who suffered from
Alzheimer's disease, experienced declining
health. Attorney Kaupie spent considerable
time caring for his mother, whose condition
increasingly needed constant supervision.
The stipulation discloses that Attorney
Kaupie essentially stopped practicing law to
care for his mother, who passed away in
November 2014.
¶15 We adopt the referee's findings of
fact and conclusions of law and determine
that, in view of the circumstances
presented, a five-month suspension is the
appropriate discipline for Attorney Kaupie's
professional misconduct. See In re
Disciplinary Proceedings Against Diamon,
2001 WI 28, 242 Wis. 2d 110, 624 N.W.2d 147
(five-month suspension for failure to act
with reasonable diligence and promptness in
representing clients, failure to communicate
with clients, terminating representation of
clients without performing any legal
services or refunding any unearned fees, and
failure to cooperate in the misconduct
investigation). We find no reason to
diverge from our general policy of imposing
full costs in this matter.
¶16 IT IS ORDERED that the license of
Joseph J. Kaupie to practice law in
Wisconsin is suspended for a period of five
months, effective the date of this order.
¶17 IT IS FURTHER ORDERED that within 60
days of the date of this order, Joseph J.
Kaupie shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $2,309.41.
¶18 IT IS FURTHER ORDERED that the March
15, 2012 temporary suspension of Joseph J.
Kaupie's license to practice law in
Wisconsin, due to his willful failure to
cooperate with the OLR's grievance
investigation in this matter, is lifted.
The administrative suspensions imposed upon
Attorney Kaupie's license for failure to pay
mandatory bar dues, failure to file a trust
account certification, and failure to comply
with continuing legal education
requirements, however, will remain in effect
until each reason for the administrative
suspension has been rectified, pursuant to
SCR 22.28(1).
¶19 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Joseph J.
Kaupie shall comply with the provisions of
SCR 22.26 concerning the duties of an
attorney whose license to practice law has
been suspended.
¶20 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28(2).
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