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Peter D. Bear is a Wisconsin-licensed
attorney, whose address of record is 6516
Monona Dr. #141, Monona, Wisconsin, 53716-
4026.
In 2007, a woman (“Client”) was
convicted of numerous counts of theft in a
business setting and sentenced to a
significant prison sentence followed by
probation. After sentencing, Client was
transferred to Taycheedah Correctional
Institution (TCI) in Fond du Lac to begin
serving her confinement period.
At trial and at the sentencing
hearing, Client was represented by privately-
hired counsel (“Trial Counsel”). After
sentencing, Client hired another attorney to
handle post-conviction proceedings (“Post-
Conviction Counsel”). Post-Conviction
Counsel believed there was not a strong
legal basis to challenge the jury verdict.
Rather, he advised Client that
the “strongest, most cost-effective” route
for her was to try to get re-sentenced.
Post-Conviction Counsel filed a post-
conviction motion in the circuit court,
requesting re-sentencing. The motion was
based on a constitutional claim of
ineffective assistance of counsel on the
part of Trial Counsel.
While the motion was pending,
Attorney Peter D. Bear met Client through a
mutual acquaintance who was also
incarcerated at TCI. Bear practices law in
Monona, Wisconsin. Although Bear graduated
from the University of Wisconsin Law School
in 1979, he had never practiced law until
2009. Client’s case was his first case.
According to Client, Bear informed her that,
as a former legislator, he knew there was
pending legislation that would affect her
sentence and that he would be uniquely
qualified to handle her case and obtain a
reduced sentence. Client, therefore, hired
Bear. Bear denied having made such
statements.
On February 12, 2009, Bear sent
Client’s husband a letter in which he
explained that he would file a motion for a
mistrial based upon an “egregious”
and “clear” denial of Client’s right to a
fair trial, even though Bear knew nothing
more about the trial than what Client had
told him. Further, the appropriate type of
motion, after sentencing, would be a motion
for a new trial pursuant to Wis. Stat. §
974.06, not a motion for a mistrial. In his
letter, Bear requested an advanced fee of
$2,500 for 25 hours of legal services at
$100 per hour. In his letter, Bear stated
that if more hours of work should prove
necessary “client shall be advised
beforehand.” He further stated that the
Client would be billed monthly and should co-
counsel become necessary, Bear “would
consult with you” prior to taking action.
Client’s husband paid the $2,500.
At that time, Bear was unaware that
Client was already represented by Post-
Conviction Counsel. After communicating
with Client, Post-Conviction Counsel handled
the motion for re-sentencing, which was
denied on the grounds that there was not
sufficient evidence of ineffectiveness on
the part of Trial Counsel. Thereafter, Bear
represented Client in the appeal of the
motion denying re-sentencing. On March 6,
2009, Bear sent Client and Client’s husband
a letter in which he stated that he had been
hired to represent the couple “in all your
legal affairs,” including the appeal of the
motion denying re-sentencing. With this
letter, Bear included an invoice indicating
that he had completed 21.5 hours of work by
March 6, 2009. In this letter, Bear
requested $2,000 more. Client’s husband
signed the fee agreement and sent Bear a
check in the amount of $2,000.
Client also hired Bear for
representation in a possible malpractice
suit against Trial Counsel. Bear believed
that if Trial Counsel was found to be
ineffective on appeal, then that would be a
basis for a legal malpractice claim.
However, Bear was incorrect in his belief
that there would be a basis for a
malpractice claim if Trial Counsel were
found to have provided constitutionally
ineffective assistance of counsel. Minimal
research would have revealed that in order
to prove malpractice in a criminal case, the
defendant must prove, by a preponderance of
the evidence, his or her absolute innocence
of the crime. Hicks v. Nunnery, 2002 WI
App
87, 253 Wis. 2d 721, 643 N.W.2d 809. In
this matter, the Client did not challenge
the jury verdict, so there was no claim of
innocence. Therefore, despite Bear’s
representations to Client, there was never a
legal basis for a malpractice claim against
Trial Counsel.
According to Client, a malpractice
suit was all Bear could talk about, premised
on absolutely winning the appeal and then
working on the malpractice suit and winning
against Trial Counsel. Bear wrote two
letters to Client in which he outlined this
strategy. Bear led Client on to believe she
would be successful by articulating a
strategy that had no basis in Wisconsin
law.
On April 7, 2009, Bear filed a
notice of appeal from the order denying the
motion for re-sentencing. Bear prepared an
invoice dated April 27, 2009 for “services
necessary for the appeal, which will also
serve to prepare us for litigation against
[Trial Counsel] following the appeal.” This
invoice listed 27.5 hours of work completed
between March 7, 2009 and April 27, 2009.
The invoice did not list the specific work
performed. Client denies that she received
such invoice until after she filed a
grievance with the Office of Lawyer
Regulation.
On June 29, 2009, Bear filed
Client’s brief-in-chief and appendix with
the Wisconsin Court of Appeals. The brief
filed by Bear did not minimally conform to
the rules of appellate procedure as laid out
in Wis. Stat. § 809.19. Further, the brief
showed no understanding of basic concepts,
such as the standard of review on appeal.
On September 2, 2009, the State moved to
strike Client’s brief and appendix, based on
numerous failures to conform to the rules of
appellate procedure.
On September 9, 2009, at Bear’s
request, Client’s husband issued a money
order for $1,500 to a paralegal service for
assistance in drafting a brief that would
conform to the rules of appellate
procedure. Client and her husband first
learned about the paralegal service when
Bear telephoned the Client’s husband and
told him that he needed to write a $1,500
money order to the paralegal service right
away. At that point in the proceedings, the
Client and her husband had little choice but
to allow Bear to use the paralegal service;
it was too late for them to hire other
counsel by that time.
On September 16, 2009, the Court of
Appeals granted the State’s motion to strike
Client’s brief and appendix, and ordered
Client to file a conforming brief and
appendix by October 6, 2009. Employees of
the paralegal service spent 18.2 hours
working on the brief, conducting substantive
and procedural research, communicating with
Bear, and revising the brief to conform to
Wis. Stat. § 809.19.
On October 6, 2009, Bear filed the
amended brief and appendix. The brief
argued that Client was denied her due
process right to review her pre-sentence
investigation report because Trial Counsel
had read it to Client rather than giving her
a copy; that Trial Counsel provided
ineffective assistance by failing to
specifically advise Client that her giving a
lengthy statement at sentencing would be
harmful to her best interests; and that
Trial Counsel had a duty to withdraw as
counsel due to the deterioration of his
relationship with Client.
The State filed a response brief.
On January 19, 2010, pursuant to Bear’s
request, Client’s husband wrote a money
order for $600 to the paralegal service for
work on the reply brief. The paralegal
service spent 4.7 hours working on the reply
brief. At some point, Bear issued a third
invoice dated January 26, 2010, showing
14.75 hours of work completed between
January 5, 2010 and January 21, 2010. On
February 19, 2010, Bear filed the reply
brief.
On June 30, 2010, the Court of
Appeals affirmed the circuit court’s
decision denying the post-conviction
motion. In its decision, the Court of
Appeals outlined the legal test for an
ineffective assistance of counsel claim: to
prove that counsel was constitutionally
ineffective, the defendant must demonstrate
that counsel’s performance was deficient and
that the deficient performance prejudiced
the defense. The Court of Appeals further
noted that it would uphold the trial court’s
findings of fact unless they were clearly
erroneous, but would review de novo
whether
counsel’s performance was deficient and
prejudicial. The Court of Appeals ruled
that the trial court’s factual findings were
not clearly erroneous. The Court of Appeals
agreed with the trial court that Trial
Counsel’s performance was not deficient, and
therefore declined to examine whether it was
prejudicial.
On June 30, 2010, Bear sent Client a
letter informing her of the decision.
Noting that the Court of Appeals had ruled
the trial court’s findings were not clearly
erroneous, Bear stated, “I read that as
saying that they might be erroneous, but not
so clearly erroneous as to justify
overturning” the trial court. Bear did not
advise Client that she had the right to file
a petition for review to the Wisconsin
Supreme Court within thirty days. During
OLR’s investigation, Bear was unable to
articulate the standard of review on appeal
of a circuit court’s factual or legal
findings regarding an ineffective assistance
claim, that such findings will be upheld on
appeal unless they are clearly erroneous.
Because Bear did not understand that the
appellate court would reverse the trial
court’s findings only if they were clearly
erroneous, throughout the representation
Bear consistently overstated the likelihood
of success on appeal.
During the period that Attorney Bear
was representing Client, he sent her several
letters that were on letterhead
labeled “Bear [Doe] Law Office.” On these
letters, Mr. Doe’s title or role was not
identified. Mr. Doe worked part-time as an
assistant in Attorney Bear’s law office for
7-8 months, between late 2009 to July or
August 2010. Mr. Doe was not a lawyer and
had no legal training.
During the representation, Client
was upset that Bear repeatedly contacted her
or her husband to request additional fees
and/or payment of personal expenses and that
Bear was providing only incomplete and
untimely invoices. Taken together, Bear’s
February 12, 2009 retainer letter and his
March 6, 2009 letter stated that Bear would
work at a rate of $100 per hour; that filing
fees would be taken out of the initial
advanced payment; that, if it became
necessary to consult with co-counsel, Bear
would obtain prior authorization; and that
Client would be billed on a monthly basis.
At the time he represented Client,
Bear did not have a trust account and,
therefore, did not deposit any of her
payments for advanced fees and costs into a
trust account.
During the representation, Bear
generated three invoices, dated March 6,
2009, April 27, 2009, and January 26, 2010.
These invoices show a total of 75.25 hours
spent on legal work for Client. At a rate
of $100 per hour, this would be $7,525.00 in
fees. These invoices, however, failed to
document work performed between April 28,
2009 and January 4, 2010. Contrary to his
initial retainer letters, Bear did not
provide regular monthly invoices. Bear
indicated that he sent the three invoices on
or about the date shown on the invoice.
Client and her husband dispute that they
timely received the April 27, 2009 and
January 26, 2010 invoices. On January 25,
2010, Client sent Bear a letter expressing
concerns about Bear’s billing practices.
Bear did not keep contemporaneous
time records of his work on Client’s case.
On February 9, 2011, Bear sent Client a
letter in which he briefly summarized 122
hours of work on Client’s behalf, but he did
not give a full accounting of his work on
the case.
Client’s husband created a detailed
accounting of all the fees and costs that he
and Client paid to Bear, along with copies
of checks, money orders and credit card
receipts, which total $13,655 as follows:
$10,058 in fees; $210 in filing fees; $2,100
to the paralegal service that worked on the
appellate briefs; $399 to the State Bar of
Wisconsin for Bear’s attendance at a CLE
conference; $456 to the State Bar of
Wisconsin for Bear’s annual State Bar dues;
$42 for Bear’s legal research on the Lexis
Legal Database; and $400 to Bear for the
purchase of a laptop computer. The
paralegal service later refunded to the
Client’s husband an unearned balance of
$242.80. In addition, Client paid costs of
$336.17 for miscellaneous costs that they
had agreed to pay, including transcript,
mailing, and other costs. The $13,665
Client paid was $6,965 more than Bear’s
records show that he received. Bear
acknowledged that his invoices were
incomplete, missing in particular the period
between April 2009 and January 2010, when
Bear and the paralegal service prepared the
appellate brief.
In sum, Client paid $13,665 for a
relatively simple appeal of an order denying
a post-conviction motion in a criminal
case. The issue on appeal was
straightforward: given the record created
at the hearing, should the Court of Appeals
reverse the trial court’s order denying the
motion? The record had already been
developed, and the legal standards governing
ineffective assistance claims are settled in
Wisconsin. Excluding the table of contents
and certification, Bear’s amended brief-in-
chief was 17 pages long, and the reply brief
was 10 pages long. Bear asserted that he
spent up to 122 hours working primarily on
the appeal (plus 23 hours of work by the
paralegal service), which was more time than
necessary.
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