Disciplinary Proceedings Against Trudgeon
2010 WI 103, 329 Wis.2d 10, 787 N.W.2d 795 (2010)
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ATTORNEY disciplinary
proceeding. Attorney's license
revoked.
¶1 PER CURIAM. On November 2, 2009,
the Office of Lawyer Regulation (OLR) filed
a disciplinary complaint against Attorney
Michael C. Trudgeon alleging 56 counts of
professional misconduct involving 13
separate clients. Reserve Judge Timothy L.
Vocke was appointed referee. Referee Vocke
has filed his report recommending revocation
of Attorney Trudgeon's license to practice
law in Wisconsin. Referee Vocke also
recommends Attorney Trudgeon be ordered to
pay restitution and the costs of this
proceeding.
¶2 No appeal has been filed. We review
the matter pursuant to SCR 22.17(2). We
conclude the serious nature of Attorney
Trudgeon's numerous ethical violations
warrants the revocation of his license to
practice law in this state. In addition, we
order Attorney Trudgeon to pay restitution
and costs.
¶3 Attorney Trudgeon was admitted to
the practice of law in Wisconsin in 2003.
He has practiced in Beloit. His law license
was suspended, effective May 27, 2008, for
his failure to comply with mandatory
continuing legal education reporting
requirements. On July 28, 2008, his license
was suspended for his failure to cooperate
with ongoing OLR investigations. His
license remains suspended.
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¶4 On October 9, 2009, this court
publicly reprimanded Attorney Trudgeon for
eight counts of professional misconduct in
two client matters, which included failure
to act with reasonable diligence, lack of
communication with his client, and conduct
involving dishonesty, fraud, deceit or
misrepresentation. See In re
Disciplinary
Proceedings Against Trudgeon, 2009 WI 96,
321 Wis. 2d 560, 774 N.W.2d 469.
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¶5 In the present matter, Attorney
Trudgeon entered a stipulation admitting
numerous counts of misconduct alleged in the
OLR complaint and pleading no contest to the
remaining counts. Because Attorney Trudgeon
did not dispute committing the 56 alleged
violations, the only question for the
referee to address at the disciplinary
hearing was the level of the sanction to be
imposed.
¶6 Attorney Trudgeon's representation
of K.R. serves as the basis for the first
five counts. On February 11, 2008, Attorney
Trudgeon became counsel of record for K.R.
in a family law action. After Attorney
Trudgeon's license suspensions, he did not
provide notice to the court of his need to
withdraw from representation. As of the
date of the OLR complaint, Attorney Trudgeon
remained K.R.'s counsel of record.
¶7 As part of his representation of
K.R., Attorney Trudgeon engaged in
negotiations with opposing counsel regarding
a proposed waiver of future child support.
Attorney Trudgeon proposed that if the
opposing party would agree to waive all
future child support, certain concessions
would follow. The OLR notes that a parent
cannot waive future child support for a
minor child or enter into a binding contract
to refrain from seeking child support.
See
In re Marriage of Ondrasek v. Tenneson,
158
Wis. 2d 690, 462 N.W.2d 915 (Ct. App.
1990). Thus, the OLR alleges that if the
opposing party had agreed to Attorney
Trudgeon's proposed child support waiver,
K.R. would nonetheless remain liable for
child support.
¶8 Due to Attorney Trudgeon's license
suspension, opposing counsel advised
Attorney Trudgeon that he believed he had an
obligation to report to the OLR Attorney
Trudgeon's continued practice of law.
Attorney Trudgeon told opposing counsel he
would self-report and he would also notify
K.R. that he could not represent him.
Attorney Trudgeon did not report his actions
to the OLR. In an unrelated matter,
Attorney Trudgeon filed with the OLR an
affidavit dated August 25, 2008, stating he
had not engaged in the practice of law since
March of 2008 and that his license had been
suspended due to failure to comply with
continuing legal education requirements.
Attorney Trudgeon did not disclose to the
OLR that he had continued to practice law
after March 2008.
¶9 Opposing counsel notified the OLR of
Attorney Trudgeon's negotiations. By letter
dated September 4, 2008, the OLR notified
Attorney Trudgeon of its investigation of
the grievance and requested certain
information and documents. Attorney
Trudgeon did not file a substantive response
to the grievance and did not respond to the
OLR's preliminary investigative report.
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¶10 In accordance with Attorney
Trudgeon's stipulation, Referee Vocke found
five counts of misconduct with respect to
the representation of K.R. The referee
concluded that by attempting to negotiate a
waiver of future child support on behalf of
a client, when such an agreement is
unenforceable in Wisconsin, Attorney
Trudgeon violated SCR 20:1.1. The referee
further concluded that by proposing terms
for negotiation in a pending lawsuit at a
time when his license to practice law was
suspended for failure to comply with
mandatory continuing legal education
reporting requirements and for failure to
cooperate with ongoing OLR investigations,
Attorney Trudgeon violated SCRs 22.26(2) and
31.10(1), via SCR 20:8.4(f).
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¶11 The referee further concluded that
by failing to promptly notify the court of
the suspension of his license to practice
law, Attorney Trudgeon violated SCR 22.26(1)
(c) via SCR 20:8.4(f). The referee also
determined that Attorney Trudgeon's
misrepresentations to the OLR in his
correspondence and affidavit violated SCR
20:8.4(c). Additionally, the referee
concluded that by failing to provide OLR
with a timely written response containing
the information requested by the OLR,
Attorney Trudgeon violated SCRs 22.03(2) and
22.03(6), via SCR 20:8.4(h).
¶12 The referee found that Attorney
Trudgeon committed 51 additional violations
in 12 other client matters. In several
cases the misconduct was similar to that
committed in the K.R. client matter in that
Attorney Trudgeon engaged in dishonest
conduct, failed to provide information as
requested by the OLR, and failed to notify
the court of his suspension. Other
misconduct involved his assertion that he
represented an individual without the
authority to do so. The referee also found
that Attorney Trudgeon had failed to
maintain confidentiality of files which he
had left unsecured. Additional misconduct
included the lack of diligence in client
matters, failing to communicate with
clients, failing to refund an unearned fee,
trust account violations, engaging in an ex
parte communication with the court, and
making a false statement to a tribunal.
¶13 In another matter, Attorney Trudgeon
converted to his own use at least $24,500 of
settlement funds he received on behalf of
client B.W. in connection with a car
accident. The referee also found that
Attorney Trudgeon had lied to his clients
and, on at least one occasion, Attorney
Trudgeon falsely authenticated a document.
The referee observed Attorney Trudgeon's
misconduct was extremely damaging not only
to clients but also to the legal system.
For example, the referee found that Attorney
Trudgeon failed to appear for a scheduled
pretrial conference in one matter and failed
to appear at a jury trial in another
matter. The referee stated that the damage
the failure to appear at a scheduled jury
trial does to the court system is enormous.
¶14 The referee also concluded that
Attorney Trudgeon had essentially abandoned
his clients on a number of occasions. The
referee stated, "There's nothing that does
more damage to the legal system, as was
pointed out by the [clients] today, than an
attorney that essentially abandons them and
their case[s]. That's exactly the type of
thing which is most likely to bring
disrepute on the legal profession."
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¶15 The referee noted Attorney Trudgeon
had been cooperative and truly remorseful.
Nonetheless, the referee observed that to a
great extent, Attorney Trudgeon attempted to
rationalize or excuse his behavior. The
referee rejected Attorney Trudgeon's
explanations concerning his mental condition
of depression and his marital problems. The
referee concluded that the nature and number
of the counts, and the number of victims,
were aggravating factors warranting
revocation.
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¶16 The referee recommended
restitution. The referee found that client
C.S. (counts 17 through 23) was entitled to
restitution in the sum of $650. Client L.W.
(counts 24 through 29) was entitled to
restitution in the sum of $600. The referee
also found that the Estate of W.W. (counts
49 through 53) was entitled to restitution
of $1,162.
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¶17 With respect to the amount converted
in the B.W. client matter (counts 30 through
35), the referee determined B.W. was
entitled to restitution of $12,000 and Dean
Health Plan, Inc., was entitled to
restitution of $13,000. The OLR advises
that after the referee issued his report,
client B.W. and the Dean Health Plan, Inc.,
were reimbursed by the Wisconsin Lawyer's
Fund for Client Protection (the Fund). The
OLR requests that if the court would adopt
Referee Vocke's recommendation, the
restitution be paid to the Fund rather than
to B.W. and Dean Health Plan.
¶18 The referee further recommended that
Attorney Trudgeon pay the costs incurred by
the OLR. On June 1, 2010, the OLR filed a
statement seeking $4,514.06 in costs. No
objection to the costs has been filed.
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¶19 This court upholds a referee's
findings of fact unless they are clearly
erroneous. See In re Disciplinary
Proceedings Against Carroll, 2001 WI 130,
¶29, 248 Wis. 2d 662, 636 N.W.2d 718. This
court independently reviews the referee's
legal conclusions. Id. Here, the
stipulation supports the referee's findings
of fact and legal conclusions as to Attorney
Trudgeon's professional misconduct. They
are unchallenged. Therefore, this court
approves and adopts the referee's findings
of fact and conclusions of law.
¶20 It is ultimately this court's
responsibility to determine the appropriate
discipline to impose. See In re
Disciplinary Proceedings Against Reitz,
2005
WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d
894. The seriousness of Attorney Trudgeon's
misconduct with respect to the 56 violations
involving 13 clients demonstrates the need
to revoke his law license to protect the
public, courts, and legal system from the
repetition of misconduct, as well as to
impress upon Attorney Trudgeon the
seriousness of his misconduct and deter
other attorneys from engaging in
misconduct.
¶21 We further conclude Attorney
Trudgeon shall make restitution as
determined by the referee, with the
exception that restitution arising from
counts 30 to 35 be made to the Fund, rather
than to B.W. and Dean Health Plan.
¶22 We impose full costs of $4,514.06.
Under SCR 22.24(1m), the court's general
policy is to impose costs on the
respondent. To award less than full costs,
the court must find "extraordinary
circumstances." Attorney Trudgeon has not
objected to costs and has not claimed any
extraordinary circumstances to justify a
reduction in costs.
¶23 IT IS ORDERED that the license of
Michael C. Trudgeon to practice law in
Wisconsin is revoked, effective the date of
this order.
¶24 IT IS FURTHER ORDERED that Michael
C. Trudgeon comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been revoked.
¶25 IT IS FURTHER ORDERED that within 60
days of the date of this order, Michael C.
Trudgeon make restitution as follows:
For Client Protection $
25,000
¶26 IT IS FURTHER ORDERED that within 70
days of the date of this order, Michael C.
Trudgeon pay the Office of Lawyer Regulation
the costs of this proceeding.
¶27 IT IS FURTHER ORDERED that
restitution is to be completed prior to
paying costs to the Office of Lawyer
Regulation.
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