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ATTORNEY disciplinary
proceeding. Attorney's
license suspended.
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1. PER CURIAM. Attorney Anne B. Shindell
appealed from the
referee's report concluding that Attorney
Shindell engaged in misconduct with respect
to her representation of five clients. She
also appealed from the referee's
recommendation that her license to practice
law be suspended for one year.
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2. We determine that the referee's findings
of
fact are supported by clear, satisfactory,
and convincing evidence. We further
determine that the seriousness of the
misconduct warrants the suspension of
Attorney Shindell's license to practice law
for one year.
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3. Attorney Shindell was admitted to
practice
law in Wisconsin in 1979 and practiced in
Milwaukee, specializing in employment law.
In 1995 she consented to the imposition of a
private reprimand for violating a statute,
supreme court rule, supreme court order, or
supreme court decision regulating the
conduct of lawyers, as well as violating
supreme court rules regarding fees, and
violating the rule that requires a partner
in a law firm to make reasonable efforts to
ensure that the firm has in effect measures
giving reasonable assurances that all
lawyers in the firm conform to the Rules of
Professional Conduct. On October 21, 2002,
in another proceeding, this court granted
the motion of the Office of Lawyer
Regulation (OLR) to summarily suspend
Attorney Shindell's license based on
criminal convictions for attempted theft by
fraud and resisting or obstructing an
officer.
4. The OLR filed its complaint on
October
23, 2000. Attorney Shindell filed an answer
in November 2000. Attorney Stanley F. Hack
was appointed as referee. Hearings were
conducted before the referee between August
20, 2001, and October 9, 2001. The referee
issued his report and recommendation on
January 22, 2002. The referee made findings
of fact based on testimony and documentary
evidence presented at the hearings
concerning Attorney Shindell's
representation of the five clients. The
referee found that in the course of
representing these clients Attorney Shindell
engaged in a pattern of neglect that
included a failure to return unearned fees
in several matters.
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5. The first claim of misconduct alleged in
the
OLR's complaint involved a client who
retained Attorney Shindell in early 1994 to
prosecute an employment termination and
benefits dispute, including an Equal
Employment Opportunity Commission (EEOC)
claim, against her former employer. Between
January 1994 and early 1996 Attorney
Shindell filed an initial EEOC claim and
engaged in negotiations with the former
employer's counsel regarding the client's
retirement benefits and health insurance
coverage.
6. In April and May 1995 the client
wrote to
Attorney Shindell inquiring about the status
of the case. Attorney Shindell failed to
respond. In June of 1995 Attorney Shindell
informed the client that she had obtained a
settlement with the former employer
regarding medical and retirement benefits.
In August 1995 the client wrote to Attorney
Shindell inquiring as to the status of the
settlement papers and expressing her concern
over the health insurance continuation
issue. Attorney Shindell's office sent a
proposed agreement to the client on
September 7, 1995. The agreement did not
include a reference to the special payment
allowance which the client claimed to have
understood to be part of the agreement based
on her earlier conversations with Attorney
Shindell.
7. After trying unsuccessfully to
contact
Attorney Shindell by telephone the client
wrote to Attorney Shindell on October 5,
1995, urging her to complete the litigation
and again emphasizing her concern about
health insurance coverage. After hearing
nothing further from Attorney Shindell the
client again wrote to Attorney Shindell on
October 22, 1995, and enclosed an executed
copy of the separation agreement and general
release to which the client had added
initialed handwritten language providing for
inclusion of the special payment allowance.
On October 26, 1995, Attorney Shindell
signed her approval on the agreement and
also initialed the handwritten language
pertaining to the special payment
allowance. By letters dated November 9,
1995, and January 3, 1996, the client again
urged Attorney Shindell to finalize the
matter.
8. On January 24, 1996, Attorney Shindell
wrote
to adverse counsel requesting a cost
analysis in the event the former employer
were to provide the group retiree health
benefit to the client. Adverse counsel
replied that he had earlier stated the
former employer's position, which was that
the proposed settlement agreement
specifically omitted any special payment
allowance. Attorney Shindell did not
forward this letter to the client until
March 18, 1996. On April 3, 1996, Attorney
Shindell informed the client that
comprehensive health insurance could be
available to her if she would accept the
settlement offer without the added language
pertaining to the special payment allowance.
9. Attorney Shindell took no further
action
regarding the pending claim. On April 18,
1996, EEOC issued a dismissal and notice of
rights within 90 days of the dismissal
letter stating it was unlikely further
investigation would result in a finding of
discrimination but that no decision had been
made on the merits of the charge. In the
course of an April 26, 1996, telephone
conversation with Attorney Shindell the
client agreed to withdraw the special
payment allowance claim with the
understanding that the settlement agreement
would then be accepted by her former
employer to include health insurance
coverage. Without notice to the client
Attorney Shindell closed the file.
10. In September 1997 the client wrote to
Attorney Shindell reminding her that the
health insurance coverage needed to commence
no later than April 1, 1998, and inquiring
as to the status of the EEOC claim.
Attorney Shindell failed to respond. The
client again wrote to Attorney Shindell in
February and October 1998. The client's
telephone log, which was admitted into
evidence at the disciplinary hearings,
revealed approximately 20 calls to Attorney
Shindell between February 26, 1998, and
August 28, 1998. Most of those calls were
not returned by Attorney Shindell.
11. In April or May of 1998 Attorney
Shindell
attempted to contact the former employer
regarding the client's health insurance
coverage. Adverse counsel responded by
letter of May 7, 1998, saying that a
settlement agreement had never been reached
between the parties. Attorney Shindell
never forwarded a copy of this letter to the
client or advised the client of its content.
12. The client's brother attempted to
contact
Attorney Shindell by telephone to discuss
the matter. After receiving no response the
client's brother wrote to Attorney
Shindell. Attorney Shindell subsequently
spoke to the client's brother and said the
litigation would be reopened and that the
former employer's counsel would again be
contacted for purposes of enforcing the
prior agreement. Attorney Shindell promised
some action in the matter and a written
report of her progress no later than
February 16, 1999. She never provided any
such report to the client or the client's
brother.
13. The second claim of misconduct alleged
in
the OLR's complaint involved a client whose
employment was terminated in October 1997.
The client was interested in negotiating a
better deal for himself than his former
employer had initially offered, and he paid
Attorney Shindell a $500 retainer. Attorney
Shindell obtained the client's personnel
file from the former employer and
corresponded with the former employer
regarding benefits that might be available
to the client. Attorney Shindell also
reviewed the former employer's offer and on
February 6, 1998, submitted a counteroffer.
14. During a February 12, 1998,
telephone
conversation with the former employer's
human resources corporate counsel Attorney
Shindell attempted to get the former
employer to find another position for the
client. The former employer refused to
modify its original severance package
offer. Attorney Shindell failed to inform
the client of this negotiating session. On
March 5, 1998, Attorney Shindell and the
former employer's counsel continued their
discussions regarding the client's severance
package. The former employer's counsel
agreed to provide Attorney Shindell with a
deadline of March 13, 1998, to accept or
reject their offer.
15. On March 13, 1998, the client and
Attorney
Shindell discussed the matter and Attorney
Shindell informed the client for the first
time that his former employer would not
extend benefits beyond the original
severance package offer. During the week of
March 23, 1998, the client made numerous
calls to Attorney Shindell. Attorney
Shindell failed to return any of the calls.
After hearing nothing from Attorney Shindell
the client negotiated directly with his
former employer and was able to obtain
certain concessions from them in addition to
the benefits set forth in the original
severance package offer. Attorney Shindell
was not involved in these negotiations or
the ultimate settlement. During his final
negotiations with his former employer the
client was advised by the former employer's
counsel that counsel had informed Attorney
Shindell of their position on the severance
agreement on February 12, 1998.
16. On May 10, 1999, the Board of Attorneys
Professional Responsibility (BAPR) (the
predecessor to the OLR) staff sent Attorney
Shindell a letter via regular mail
requesting a response to the client's
grievance within 20 days. On June 11, 1999,
having received no response the BAPR staff
sent Attorney Shindell another letter via
certified mail demanding a response to the
client's grievance within ten days. On June
21, 1999, Attorney Shindell telephoned the
BAPR staff and said she would file a
response by the end of the week. The
response was not filed by that date.
17. The third claim of misconduct alleged
in the
OLR's complaint involved a client whose
employment was terminated in November 1998
and sought Attorney Shindell's services to
improve his severance package. This client
signed a retainer agreement letter on
December 11, 1998, and paid Attorney
Shindell a $1000 retainer. The retainer
agreement provided that the $1000 was to be
applied to the fees and costs incurred in
the matter. The agreement did not contain
any provision indicating the $1000 was not
refundable. In early January 1999 the
client contacted Attorney Shindell's office
inquiring as to the status of his case.
Attorney Shindell failed to return the
client's calls and he decided to terminate
her services. He requested a refund of his
$1000 retainer.
18. On January 7, 1999, an employee in
Attorney
Shindell's office sent Attorney Shindell an
e-mail advising her that the client did not
want to proceed any further and that he
wanted the $1000 retainer returned, less any
earned fees. On January 25, 1999, Attorney
Shindell sent the client a billing statement
reflecting legal services totaling $16.50
and disbursements totaling $19.25. On
February 23, 1999, the client sent Attorney
Shindell a certified letter saying he had
left eight telephone messages that were not
returned and that he wanted the $1000
retainer, less disbursements, returned.
Attorney Shindell failed to respond.
19. On June 15, 1999, the client filed a
small
claims action against Attorney Shindell in
Milwaukee County. The client obtained a
default judgment against Attorney Shindell
in the amount of $1182. Attorney Shindell
satisfied the judgment on or about October
1, 1999.
20. By letters dated March 31, 1999, and
April 30, 1999, the BAPR staff notified
Attorney Shindell of the client's grievance
and requested a written response. By
telephone conversation on May 6, 1999, the
BAPR staff extended the time for Attorney
Shindell to respond to the grievance to May
24, 1999. No response was filed by that
date. By letter dated June 2, 1999, the
BAPR staff again requested that Attorney
Shindell provide a written response to the
grievance. On June 21, 1999, Attorney
Shindell called the BAPR staff and indicated
a response would be received by the end of
that week. No response was filed.
21. The fourth claim of misconduct
alleged in
the OLR's complaint involved a client who
retained Attorney Shindell in April 1998 to
either negotiate a settlement or proceed to
litigation with her deceased husband's
employer and its insurance company regarding
salary and death benefit issues. The client
paid Attorney Shindell a retainer of $1000.
22. The client initially met with an
associate at Attorney Shindell's firm. The
associate left the firm shortly thereafter.
Prior to her departure the associate
prepared a memorandum to the file setting
forth a number of facts and conclusions
regarding the client's claims. The
memorandum generally concluded that the
client's claim was not viable since it
depended upon proving that the client's
husband's employer acted in a discriminatory
manner toward the client's husband under the
Americans with Disabilities Act. The
associate concluded this proof was difficult
and that the matter did not warrant
litigation. The associate urged that the
Shindell law firm contact the employer's
counsel to see whether they would stand by
an earlier proposal that had been made to
the client to include payment of wages and
benefits due at the original contract rate
rather than at a reduced rate, provided the
client would agree not to pursue additional
life insurance benefits. The associate also
recommended the Shindell law firm contact a
medical malpractice attorney to see if there
was a viable claim arising from the
circumstances surrounding the care the
client's husband received prior to his
death. The associate informed the client
that Attorney Shindell would be handling the
rest of the case.
23. Attorney Shindell first met with the
client on January 9, 1998. She did not
discuss the contents of the associate's
memorandum with the client at that time.
Following this meeting the client wrote
numerous letters and made multiple telephone
calls to Attorney Shindell to inquire about
the status of the case. The client also
provided additional information relating to
her claim by correspondence dated October
12, 1998, and February 5, 1999. Attorney
Shindell failed to respond to the client's
inquiries.
24. On February 17, 1999, the client
wrote to
Attorney Shindell saying she was terminating
the attorney-client relationship. By
certified letter dated February 25, 1999,
the client requested that her file be sent
to her. Attorney Shindell failed to
respond. In a May 24, 1999, telephone call
with Attorney Shindell the client again
requested her file, and by letter dated June
5, 1999, the client asked for a refund of
all monies that had been paid to Attorney
Shindell. On July 1, 1999, the client sent
a certified letter to Attorney Shindell
again asking for her file and a refund of
the fees paid. Attorney Shindell failed to
respond. The client paid approximately
$2800 in fees and costs to Attorney Shindell.
25. By letter dated August 6, 1999, the
BAPR
staff notified Attorney Shindell of the
client's grievance and requested her to file
a written response within 20 days. Attorney
Shindell requested and received an extension
until September 10, 1999. On September 17,
1999, the BAPR staff sent a certified letter
to Attorney Shindell noting the prior
extension to respond to the client's
grievance and informing Attorney Shindell
that a written response was to be postmarked
no later than September 27, 1999. By
voicemail message of September 28, 1999,
Attorney Shindell requested an additional
extension until October 14, 1999, to respond
to the grievance. The extension was granted
by the BAPR staff. Attorney Shindell failed
to submit a written response to the client's
grievance.
26. The fifth claim of misconduct
alleged in
the OLR's complaint involved a man whose
employment was terminated in October of
1998. In late 1998 he retained Attorney
Shindell to advise him regarding a possible
monetary claim against his former employer.
Attorney Shindell agreed to research the
merits of the claim and to send a demand
letter to the client's former employer
within a month. The client provided
Attorney Shindell with various documents
relevant to his claim and paid her a $1000
retainer fee.
27. In March and early April of 1999 the
client attempted to contact Attorney
Shindell several times to inquire about the
status of his case. Attorney Shindell
either failed to respond or provided evasive
answers. She also failed to forward a
demand letter to the client's former
employer.
28. On or about April 20, 1999, the
client
received Attorney Shindell's billing
statement. He wrote to her disputing
various billing entries and terminating her
legal representation. He requested a return
of the unearned portion of his retainer
fee. The client wrote additional letters on
May 4 and May 14, 1999, again demanding
return of the unearned portion of his
retainer. Attorney Shindell failed to
respond.
29. On May 15, 1999, the client filed a
small
claims action against Attorney Shindell in
Milwaukee County seeking return of the
unearned portion of the retainer fee.
Attorney Shindell was personally served with
the small claims summons and complaint on
May 17, 1999. That same day she wrote to
the client promising to send a final bill
with any refund that might be due.
30. On June 4, 1999, a default judgment
was
entered in the client's favor in the amount
of $987.92. On May 24, 2000, Attorney
Shindell executed and saw to the filing of a
satisfaction of judgment indicating that the
judgment had been fully paid and satisfied.
The client never consented to or authorized
the signing or the filing of a satisfaction
of judgment.
31. By letter dated June 22, 1999, the
BAPR
staff advised Attorney Shindell of the
client's grievance and requested a written
response within 20 days. Attorney Shindell
failed to respond. By letter of July 22,
1999, the BAPR staff again requested a
written response to the client's grievance
no later than August 2, 1999. Attorney
Shindell again failed to respond.
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32. The referee found that by failing to
respond
to telephone calls and inquiries and failing
to perform appropriate legal services on
behalf of the first, second, and third
clients, Attorney Shindell violated SCR
20:1.3. The referee also found that by
failing to respond to letters and telephone
calls from the first, second, and fourth
clients inquiring as to the status of their
claims and by not providing those clients
with timely information, Attorney Shindell
violated SCR 20:1.4(a). The referee also
found that by failing to inform the first
client about the status of negotiations and
failing to inform her of the consequences of
not pursuing either the health insurance
issue or the EEOC claims, and by failing to
inform the second client about his former
employer's position as to the severance
agreement in a timely manner, Attorney
Shindell violated SCR 20:1.4(b).
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33. The referee also concluded that by
failing
to provide further legal services on behalf
of the first, third, fourth, and fifth
clients, Attorney Shindell violated SCR
20:1.16(d). The referee also found that by
filing a judgment satisfaction on her own
behalf without authority from the fifth
client and by falsely asserting within the
document that the small claims judgment had
been satisfied to the fifth client's
satisfaction, Attorney Shindell violated SCR
20:3.3(a)(1). The referee also concluded
that Attorney Shindell's actions with
respect to the satisfaction of judgment
violated SCR 20:8.4(c).
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34. The referee also concluded that by
failing
to provide written responses to grievances
filed by the second, third, fourth, and
fifth clients, and by failing to cooperate
with the BAPR's investigation, Attorney
Shindell violated former SCR 21.03(4) and
22.07(2).
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35. The referee recommended that Attorney
Shindell's license to practice law in
Wisconsin be suspended for one year. He
also recommended that, as a condition to
seeking reinstatement, Attorney Shindell
should be required to refund $2800 to the
fourth client and should be required to pay
the small claims judgment entered in favor
of the fifth client in the amount of the
judgment, together with statutory interest
to the date paid. The referee also
recommended that Attorney Shindell be
ordered to pay the OLR the cost of the
proceedings within 60 days.
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36. Attorney Shindell argues that many of
the
referee's findings of fact are clearly
erroneous. She asserts that the referee
erred in giving too much weight to the
testimony of the five former clients while
discounting testimony presented by
disinterested witnesses. She also argues
that the referee erroneously punished her
for not paying the small claims judgment
entered in favor of the fifth client, and
she asserts there is no ethical or
professional obligation to pay a judgment.
She also asserts that the referee discounted
various mitigating factors such as the fact
that she went through an acrimonious
divorce, suffered from serious health
problems, and had administrative problems at
her office, including embezzlement by a
former office manager and difficulties
retaining employees. She asserts that to
the extent this court finds that any neglect
of client matters has been proven, a 60-day
suspension would be an appropriate level of
discipline.
37. The OLR responds that the referee's
decision appropriately addresses the
underlying witness credibility issues. The
OLR contends the referee's findings of fact
are not clearly erroneous and that his
conclusions of law are supported by clear,
satisfactory, and convincing evidence.
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38. A referee's findings of fact on a
disciplinary matter will not be set aside
unless clearly erroneous. In re
Disciplinary Proceedings Against Sosnay,
209 Wis. 2d 241, 243, 562 N.W.2d 137
(1997). Conclusions of law are reviewed de
novo. In re Disciplinary Proceedings
Against Carroll, 2000 WI 130, 248 Wis. 2d
662, 675, 636 N.W.2d 718. Since the
referee's findings of fact have not been
shown to be clearly erroneous, we adopt
them. We also adopt the conclusions of law
as set forth in the referee's report and
recommendation.
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39. The referee noted, and we agree, that
the
record demonstrates the existence of a
number of mitigating factors, including the
fact that Attorney Shindell suffered from
serious personal and health problems and
also had administrative problems in her
office which seemed to peak in early 1999.
As the referee also noted, however, it would
have been appropriate for Attorney Shindell
to have obtained assistance from other
attorneys in her office or brought in
outside counsel during this time, and the
absence of this assistance was not the fault
of her clients, who were unaware of Attorney
Shindell's problems.
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40. Attorney Shindell's misconduct with
respect
to her handling of the five client matters
and her failure to cooperate with the BAPR's
investigation are serious failings
warranting a suspension of her license. A
one-year suspension of her license to
practice law is appropriate discipline for
her professional misconduct.
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41. IT IS ORDERED that the license of
Attorney
Anne B. Shindell to practice law in
Wisconsin remains suspended for a period of
one additional year, effective the date of
this order.
42. IT IS FURTHER ORDERED that Attorney
Anne
B. Shindell comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
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43. IT IS FURTHER ORDERED that Attorney
Anne B.
Shindell refund, within 60 days of the date
of this order, $2800 to the fourth client.
If this refund is not made within the
specified time the license of Attorney Anne
B. Shindell to practice law in Wisconsin
shall remain suspended until further order
of the court.
44. IT IS FURTHER ORDERED that within 60
days
of the date of this order, Attorney Anne B.
Shindell pay the small claims judgment
entered in favor of the fifth client with
interest accrued to date. If this payment
is not made within the specified time, the
license of Attorney Anne B. Shindell to
practice law in Wisconsin shall remain
suspended until further order of the court.
45. IT IS FURTHER ORDERED that within 60
days
of the date of this order, Attorney Anne B.
Shindell pay to the Office of Lawyer
Regulation the costs of this proceeding. If
the costs are not paid within the time
specified and absent a showing to this court
of her inability to pay the costs within
that time, the license of Attorney Anne B.
Shindell to practice law in Wisconsin shall
remain suspended until further order of the
court.
46. IT IS FURTHER ORDERED that
restitution to
the fourth client and payment of the small
claims judgment, with interest, to the fifth
client, shall be paid prior to paying costs
to the Office of Lawyer Regulation.
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