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¶7 The remaining seven counts concerned
Attorney Boyle's level of cooperation and
honesty during the OLR's investigation in
2009 into the two client grievances
described above, as well as a third client
grievance that did not result in charges of
misconduct. During the OLR investigations,
Attorney Boyle failed to provide timely and
complete responses to the client grievances
and to the OLR's queries for information.
Attorney Boyle also dated letters to the OLR
on or before the deadlines imposed by the
OLR to give the false appearance that she
had complied with the established deadlines,
when in fact she had not. The OLR complaint
alleges two counts of failing to cooperate
with an OLR investigation and failing to
fully and fairly disclose all facts and
circumstances pertaining to alleged
misconduct, in violation of SCR 22.03(2),
enforced via SCR 20:8.4(h); three counts of
willfully failing to provide relevant
information, to answer questions fully, or
to furnish documents to the OLR, in
violation of SCR 22.03(6), enforced via SCR
20:8.4(h); and two counts of engaging in
conduct involving dishonesty, fraud, deceit,
or misrepresentation, in violation of SCR
20:8.4(c).
¶8 Following a hearing on the
complaint, the referee determined that the
OLR had proven misconduct in all 11 counts
charged.
¶9 In support of her recommendation for
a 60-day suspension, the referee noted that,
in both this disciplinary matter and
Attorney Boyle's earlier private reprimand,
Attorney Boyle displayed a pattern of
failing to act with reasonable diligence and
promptness in representing her clients and
failing to communicate appropriately with
her clients. The referee also noted that in
this disciplinary matter, Attorney Boyle
consistently refused to cooperate with the
OLR and back-dated documents to make it
appear as though she had timely cooperated
with deadlines set by the OLR. The referee
also noted that during the hearing, Attorney
Boyle expressed very little remorse with
respect to her conduct toward her clients
and the OLR.
¶10 As to the appropriate monetary
sanctions, the referee recommended that
Attorney Boyle should be assessed the entire
costs of the disciplinary proceeding, which
total $10,971.70 as of January 27, 2012.
The referee further recommended that
Attorney Boyle be required to make
restitution to the Fund in the amount of
$5,000 plus legal interest.
¶11 Attorney Boyle appeals. The level
of discipline is the only dispute. In
particular, Attorney Boyle challenges the
appropriateness of the recommended 60-day
suspension and the recommended $5,000
restitution award to the Fund. She urges
the court to issue a public reprimand and
impose "a restriction on her license
concerning post-conviction practice for a
period of time not exceeding two years."
She objects to paying any restitution to the
Fund.
¶12 Attorney Boyle does not specifically
challenge the referee's findings of fact.
Instead, she argues that the recommended
discipline does not sufficiently take into
account various mitigating factors, which
include her allegation that she was not
deliberately indifferent toward either the
grievants or the OLR, and her allegation
that she experienced medical issues during a
portion of the time that the OLR was
investigating her conduct, and her
allegation that any apparent back-dating of
her responses to the OLR was the result of
typographical errors or postage delays that
were beyond her control. She also
challenges the referee's recommendation that
she pay restitution to the Fund for its
reimbursement to her client for the $5,000
advance fee he paid to her firm. In
particular, Attorney Boyle claims she is
being unfairly punished for her lack of
success in that particular client matter,
and that her efforts in that case
demonstrate that she did not procure the
$5,000 by dishonest conduct.
¶13 The OLR argues that a 60-day
suspension is appropriate. It argues that
the record fails to disclose any legitimate
mitigating factors. It claims that
suspensions are frequently predicated on
misconduct like that at issue here; i.e.,
misconduct that spans multiple clients,
incorporates multiple counts of professional
wrongdoing, and involves uncooperativeness
during an OLR investigation. The OLR also
argues that the referee's report contains
sufficient factual findings to justify the
recommended $5,000 restitution award.
¶14 This court concludes there is no
claim that the referee's findings are
clearly erroneous. The findings are
supported by the record and are adopted.
See In re Disciplinary Proceedings
Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747. We also agree with the
referee that those factual findings
demonstrate that Attorney Boyle committed
each of the 11 counts of professional
misconduct alleged in the complaint.
¶15 With respect to the discipline to be
imposed, we determine the appropriate level
of discipline given the particular facts of
each case, independent of the referee's
recommendation, but benefiting from it.
See
In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,
660
N.W.2d 686. After careful consideration of
the report and recommendation, the record in
this matter, and the written statements of
the parties, we accept the referee's
recommendation regarding suspension,
restitution, and costs. The misconduct at
issue here was serious, and Attorney Boyle
offers no legitimate excuse for her failure
to diligently represent her clients and her
failure to provide them with information
about their cases, fees, and expenses in
spite of their numerous requests that she do
so. Nor does she offer a legitimate excuse
for her failure to fully and honestly
cooperate with the OLR's investigation into
her conduct. Given the length of time over
which the misconduct occurred and the number
of instances of misconduct involved,
Attorney Boyle's excuses for her behavior
ring hollow. The fact that, as the referee
noted, Attorney Boyle expresses little
remorse for her misconduct suggests that
Attorney Boyle may not appreciate the
seriousness of her misconduct. A period of
suspension is necessary in this case to
impress upon Attorney Boyle the seriousness
of her professional misconduct and to
protect the public from similar misconduct
in the future.
¶16 In light of the circumstances
presented, we are persuaded that the
referee's reasoning is sound. We conclude
that a 60-day license suspension is
sufficient to advance the objectives of
lawyer discipline.
¶17 We further conclude that full costs
are to be imposed on Attorney Boyle.
Neither the OLR nor Attorney Boyle disputes
the appropriateness of assessing Attorney
Boyle with the full costs of this
disciplinary proceeding.
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