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Joseph Voelkner ("Voelkner") was admitted to
the practice of law in Wisconsin on January
10, 2001 (State Bar ID no. 1037175).
Voelkner's State Bar address of record is 602
N. 6th Street,
Sheboygan WI, 53081-4613. His law license is
active and in good standing.
Fee agreement(s) and billing:
In March 2016, Denise J. Daley ("Daley")
retained Voelkner to represent her in a
dispute
with Scott Thiel Builders ("Thiel"), who
renovated her home pursuant to a contract
dated January
12, 2015. Voelkner states his firm's regular
rate for civil litigation in 2016 was
$200.00/hour and
their regular practice is to use engagement
letters in all matters expected to
exceed
$1,000.00.
Daley states Voelkner told her his rate was
$150.00/hour and that she was never provided
anything
in writing describing the scope of work to be
performed and rate of billing. Voelkner was
unable
to locate an engagement letter for this file
but he disputes having told her his rate was
$150/hour.
From March 2016 to January 2019, Daley states
she regularly inquired about the status of
her fee bill. On January 7, 2019, Voelkner
sent Daley her first bill for services
between March 10,
2016 and December 13, 2018, for a total of
$32,547.25. Nearly all of Voelkner's fees
were
billed
at $225.00/hour. The bill advises that
payment is due within 30 days of the invoice.
The lien on Daley's home:
In April 2016, Thiel sent Daley a Notice of
Intent to file a lien against her home.
Shortly
thereafter, Daley sent Voelkner an email
expressing concerns about the potential lien.
In May
2016, Thiel filed a home improvement lien on
Daley's home asserting the contract giving
rise to
the claim was the original January 12, 2015
contract. Thiel did not dispute the original
contract
had not been paid and the lien did not
reference Thiel's claim orders for additional
work allegedly
requested by Daley.
Beginning in September 2016, Daley asked
Voelkner for his recommendations to challenge
the validity of the lien. In January 2017 and
again in May 2017, Daley asked Voelkner if
the
validity of the lien could be reviewed by the
court. On November 15, 2017, Voelkner sent
Daley
an email discussing options to potentially
release the lien, however, no action
regarding the lien
was taken at this time. In December 2018 and
again in January 2019, Daley states Voelkner
told
her he would file a motion to remove the lien
on her property.
In January 2020, Voelkner filed a motion for
Partial Summary Judgment. The court granted
the motion on March 31, 2020, dismissing
Thiel' s breach of contract claim and Thiel'
s Foreclosure
of Lien Claim.
Voelkner's pleading of Daley's
counterclaims:
On November 3, 2016, Thiel filed a civil
action against Daley in Sheboygan County
("the
case"), Case No. 16CV0601.
On November 15, 2016, Voelkner filed an
Answer and Affirmative Defense in the case
which contained a series of counterclaims.
Voelkner' s first cause of action involved A
TCP Code
Chapter 110 regarding Home Improvement
Practices; the second cause of action was for
'Slander
of Title'; the third cause of action was for
'Property Damage and Consequential Damages';
the fourth cause of action was for 'Theft by
Contractor'; the fifth cause of action was
for 'Breach of
Contract'; and the sixth cause of action was
for 'Punitive Damages'.
On August 31, 2017, Voelkner filed an Amended
Answer. On September 20, 2017, Thiel
filed a motion to dismiss Voelkner's
counterclaims. On October 24, 2017, Thiel
filed a
memorandum in support of the motion to
dismiss. On November 3, 2017, Voelkner filed
second
amended counterclaims. On November 7, 201 7,
Thiel filed a motion to dismiss the second
amended counterclaims. On November 13, 2017,
the court heard the motion and granted
Voelkner
leave to file revised pleadings.
At the November 13, 2017 motion hearing,
Judge Persick clarified what the court
expected
from the amended counterclaims, saying:
And when I look at the defendant's
Second Amended Counterclaim in comparison,
starting at paragraph 8, the first cause of
action, there are no facts alleged there at
all to
establish how these violations of the ATCP
code occurred ... it's not obvious from the
face
of the pleadings. And I do think you need to
indicate what specifically the violation is
.... if
I look at the third cause of action, again,
there's no - there are no facts listed
whatsoever
about what work was faulty.
Persick then explains the fourth cause of
action is deficient saying:
I don't know that that is enough
because I can't tell.from that pleading what
was
paid by the defendant, when it was paid, what
they 're claiming the plaintiff didn't
pay.
Persick states, regarding the fifth cause of
action:
... it's the same thing ... If I look
at paragraph 30, there's some content about
what
they 're saying was violated but there aren't
facts to back that up .... And for at least
some
of these causes of action, there are no facts
at all. And for some of them they 're so
ambiguous that I can't - well, there still
aren't many facts, and they 're so ambiguous
that
I can't tell what it's actually based
upon.
Persick also explicitly addressed that
Voelkner already had multiple opportunities
to
correct the counterclaims, saying:
I understand the plaintiff's point
here about how this has been going on for a
long
time, and there's already been an opportunity
to file an amended claim .... it would be
appropriate to allow the defendants one more
opportunity to clarify their
counterclaim.
December 12, 2017, Voelkner filed the third
amended counterclaims.
On December 16, 2017, Thiel filed a motion to
dismiss the third amended counterclaims.
Thiel's motion to dismiss and memorandum in
support noted that the allegations in the
ATCP
section did not match the corresponding
Administrative Code Sections ( e.g., in
multiple
paragraphs, the alleged behavior or facts did
not apply to the code section referenced,
there were
duplicate allegations or code references,
etc.).
On March 27, 2018, Voelkner filed a letter
with the court addressing the errors in the
third
amended counterclaims, which he alleges he
did not discover until March 25, 2018.
Voelkner
asserts he discovered the error while
preparing for the upcoming hearing. The
letter explained the
errors were "clerical," "technical defects,"
and "honest error." Voelkner included with
the letter a
"corrected" version of the counterclaims.
Voelkner suggested the court address the
sections of
Thiel's motion to dismiss that were not
affected by the claimed errors and schedule
another date
to address the remaining sections. Voelkner
did not make a motion to the court for leave
to file
fourth amended counterclaims. Voelkner
asserts he did not believe such a motion was
necessary.
At a hearing on April 16, 2018, Judge Persick
told Voelkner that she thought the other
parties were right to assert that his March
27, 2018 submission should not be considered
because
he had no permission to file a fourth amended
counterclaim and his filing was outside of
time
limits. Voelkner replied that the draft was
"not being submitted as anything other than
proof of the
error."
On April 23, 2018, at a motion hearing, Judge
Persick dismissed all of Voelkner's
counterclaims, providing" ... you have to
allege some facts, and the allegations are so
vague and
so conclusory that it is difficult to know
what's being alleged .... It's just so vague
that they're not
- they can't possibly be on notice."
On April 24, 2018, Voelkner emailed Daley a
letter that told her all six of their causes
of
action were dismissed, that the judge
demonstrated "rank incompetence," and they
"will be forced
to pursue" an interlocutory appeal. Voelkner
did not inform Daley of the consequences of
the
dismissal on her overall case. Voelkner also
did not explain to Daley the relative chances
of success
of an interlocutory or permissive appeal, the
likely attorney's fees incurred with the
appeal, the
comparative benefits and drawbacks of waiting
for a traditional appeal, and whether he
would file
an appeal at the conclusion of the case.
At a June 4, 2018 telephone status
conference, Voelkner informed the court he
was going
to appeal. On August 8, 2018 the petition for
leave to appeal was filed, initiating
2018APOO 1494
in the Court of Appeals District 2. On
September 4, 2018, the petition for leave to
appeal was
denied by the appellate court. Voelkner did
not inform Daley of the denial until December
2018.
By not communicating in writing the scope of
the representation and the basis or rate of
the fee, Attorney Voelkner violated SCR
20:l.5(b)(l) which states that, "the scope of
the
representation and the basis or rate of the
fee and expenses for which the client will be
responsible
shall be communicated to the client in
writing, before or within a reasonable time
after
commencing the representation."
By failing to properly plead Daley's
counterclaims; by failing to identify
material errors in
the third amended counterclaims, and by not
timely filing a motion to dismiss the lien,
Attorney
Voelkner violated SCR 20: 1.3 which states,
"A lawyer shall act with reasonable diligence
and
promptness in representing a client."
By failing to accurately inform Daley the
consequences of the judge's dismissal of her
counterclaims and the costs and benefits of
filing an interlocutory appeal, Attorney
Voelkner violated SCR 20:1.4(b) which states,
"A lawyer shall explain a matter to the
extent reasonably
necessary to permit the client to make
informed decisions regarding the
representation."
Attorney Voelkner has one previous private
reprimand, SCR 20:1.1 - Competence,
issued in 2020.
In accordance with SCR 22.09(3), Attorney
Joseph Voelkner is hereby publicly
reprimanded.
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