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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
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1. PER CURIAM. Attorney Reesa Evans
appealed from a single
finding of the referee, that she fabricated
a letter to a client dated March 24, 1997.
Attorney Evans also appealed from the
referee's recommendation that her license to
practice law be suspended for two years.
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2. We determine that the referee's finding
of
fact that Attorney Evans fabricated the
letter is supported by satisfactory and
convincing evidence. We determine further
that the egregiousness of that misconduct,
combined with the referee's other findings
of misconduct which Attorney Evans does not
dispute, warrants the suspension of her
license to practice law for two years.
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3. Attorney Evans was admitted to the
practice
of law in Wisconsin in 1979 and practices in
Madison. She has been disciplined for
professional misconduct on three previous
occasions. In 1994 she agreed to a private
reprimand for failing to hold property of a
client in trust, separate from her own
property, and for failing to promptly
deliver to a client funds or other property
that the client was entitled to receive. In
1995 she agreed to a private reprimand for
engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
According to the summary of facts in the
letter of reprimand, she altered an
expiration date on a document.
4. In 1997 Attorney Evans agreed to a
public
reprimand for conduct in two separate
matters involving failing to act with
reasonable diligence and promptness in
representing a client, failing to keep a
client reasonably informed about the status
of a matter and failing to comply with
reasonable requests for information, and
failing to explain the matter to the extent
reasonably necessary to permit the client to
make an informed decision regarding
representation.
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5. The referee, Attorney John Schweitzer,
made
findings of fact based on testimony and
documentary evidence presented at a
disciplinary hearing concerning Attorney
Evans' representation of a number of
clients. The referee found that in the
course of representing these clients
Attorney Evans engaged in inappropriate
activity with respect to the handling of her
client trust account. The referee found that
by depositing personal funds into her trust
account and writing checks for personal
expenses out of her trust account, Attorney
Evans failed to hold in trust, separate from
her own property, the property of clients or
third persons that was in her possession in
connection with a representation, contrary
to SCR 20:1.15(a).
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6. The referee also found that by writing
trust
account checks to herself that were
designated on the face of the checks as
being attributable to the client but were
not recorded on the ledger Attorney Evans
allegedly kept for the client and by failing
to keep any trust account records that would
identify the purpose of sums she withdrew
from funds belonging to her clients,
Attorney Evans failed to keep complete and
accurate records of transactions in her
trust account, contrary to SCR 20:1.15(e).
The referee also found that Attorney Evans
failed to promptly deliver to a client funds
that the client was entitled to receive and
failed to render a full and accurate
accounting regarding trust property,
contrary to SCR 20:1.15(b). Further, the
referee found that by representing to her
clients that she was unable to pay them the
balance owed because another check deposited
to her account was returned when, in fact,
there were insufficient funds in the trust
account because of personal withdrawals she
had made against the clients' money and by
representing that checks written on her
trust account were returned because a check
a client had written to her bounced,
Attorney Evans engaged in conduct involving
dishonesty, fraud, deceit or
misrepresentation, in violation of SCR 20:8.4
(c).
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7. The referee also found that by failing
to
respond to inquiries of clients or to meet
with them regarding the status of their
case, Attorney Evans failed to keep a client
reasonably informed about the status of a
matter and promptly comply with reasonable
requests for information, contrary to SCR
20:1.4(a). The referee also found that
Attorney Evans failed to explain a matter to
the extent reasonably necessary to permit
the client to make informed decisions
regarding the representation, contrary to
SCR 20:1.4(b). Attorney Evans did not appeal
from any of these findings of fact or
conclusions of law by the referee.
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8. The subject of this appeal involves
Attorney
Evans' representation of a client who was
convicted of armed robbery and first-degree
intentional homicide by a jury in Kenosha
county in 1987. His conviction was affirmed
on appeal. Attorney Evans consulted with the
client regarding the need to proceed in
state court on a Wis. Stat. § 974.06 (1993-
94) motion raising the issue of ineffective
assistance of trial counsel. On September
28, 1994, the client's father retained
Attorney Evans by paying her a $3000
retainer fee. The retainer agreement
included provisions requiring Attorney Evans
to consult with the client's father prior to
hiring any experts, consultants or
investigators and it gave the client's
father the right to discharge Attorney Evans
at any time. The retainer agreement did not
establish the client's father as a co-client
with his son, nor did it establish an
attorney-client relationship between the
client's father and Attorney Evans.
9. On February 5, 1995, the client sent
a
letter to Attorney Evans outlining his
concern about the lack of communication from
her. As a result of the letter, Attorney
Evans met with the client and the two agreed
that Attorney Evans would continue to
represent the client and would review
transcripts and research appellate issues.
10. Attorney Evans was unexpectedly
hospitalized on December 6, 1995. A letter
was prepared on December 26, 1995, to be
sent to her clients informing them of the
hospitalization but neither the client nor
his father received the letter. By letter of
May 14, 1996, Attorney Evans informed the
client that she had been hospitalized and
would be returning to work for a few hours a
week. She said that during her illness she
had written to authorities in Arizona in an
attempt to obtain records relevant to his
case.
11. On July 16, 1996, the client
received a
letter from Attorney Evans' receptionist
indicating that Attorney Evans would visit
the client on July 26 at the correctional
institution where he was incarcerated.
Attorney Evans did not appear at the
correctional institution on that date. In
the fall of 1996, the client's father wrote
to Attorney Evans requesting the opportunity
to meet with her. Attorney Evans did not
respond, nor did she meet with the client's
father.
12. In December of 1996, the Wisconsin
division of the American Civil Liberties
Union (ACLU) sent information to all inmates
in the Wisconsin prison system notifying
them about a recent court decision and a
federal act that put time limits on federal
habeas corpus actions. The Anti-terrorism
Act of 1996 established a one-year time
limit for filing federal habeas corpus
petitions. Existing federal case law
interpreted the Act as requiring filing
within a reasonable time in those cases that
had been decided before the enactment of the
Act. A reasonable time period was
interpreted to mean one year. The federal
decision indicated that, as to cases
predating the Anti-terrorism Act, any
federal habeas corpus petition filed on or
before April 23, 1997, would be timely.
13. When they learned of these new time
limits, both the client and his father
believed the only way to toll such time
limits would be to commence a collateral
proceeding under Wis. Stat. § 974.06 (1993-
94) in Wisconsin state court before April
23, 1997. In December of 1996, the client's
father wrote to Attorney Evans outlining his
and his son's concern about the deadline and
whether it affected his son's case. Attorney
Evans wrote to the client on February 2,
1997, but made no mention of the Anti-
terrorism Act.
14. From December 1996 through April of
1997,
the client's father continued to call and
write Attorney Evans with increased anxiety
and concern. The last letter was written on
April 23, 1997. At that time the client's
father indicated he was waiting for a
telephone response from Attorney Evans. He
did not hear from her. On that same day, the
client filed a pro se Wis. Stat. § 974.06
(1993-94) motion in the trial court. That
court denied a hearing and the client
appealed. On August 19, 1998, the court of
appeals reversed and ordered the trial court
to conduct an evidentiary hearing on the
issue raised in the motion.
15. The client's father filed a
grievance
against Attorney Evans for a failure to
communicate with him and his son. On
September 16, 1998, Attorney Evans sent a
letter to the client saying she had had a
conversation with an investigator in the
public defender's office regarding the
client's father's complaint. She attached a
copy of a letter written on her letterhead,
dated March 24, 1997, and stated, "It
appears that you never received the enclosed
letter which I wrote to you back in March,
1997." The March 24, 1997, letter indicated
it was Attorney Evans' opinion that the
recently enacted federal law and deadlines
did not apply to the client's case.
16. The March 24, 1997, letter contained
a
reference to the "federal public defender
training program." Although the correct name
of the program was the "federal public
defender training group," no version of that
name came into existence until May of 1998.
The referee made findings of fact that the
letter dated March 24, 1997, signed by
Attorney Evans and described by her as
having been written in March of 1997 was in
fact not written at that time and that
Attorney Evans' statement to Board
investigators that she wrote to her client
on March 24, 1997, was untrue.
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17. The referee found that by drafting the
letter dated March 24, 1997, after the fact
and backdating it so that it would appear it
was sent to the client on March 24, 1997,
Attorney Evans engaged in conduct involving
dishonesty, fraud, deceit or
misrepresentation, contrary to SCR 20:8.4
(c). The referee also concluded that by
falsely representing to Board investigators
that the letter dated March 24, 1997, was
sent to the client on that date, Attorney
Evans made a misrepresentation in a
disclosure to the Board and failed to
cooperate with the Board in such
investigation, contrary to SCR 21.03(4) and
SCR 22.07(2).
18. Attorney Evans disputes the
referee's
finding that she fabricated the letter dated
March 24, 1997. She testified at the hearing
that after her client posed the question
regarding federal habeas corpus law, with
which she was unfamiliar, she read the
relevant statute and applicable case law.
She testified when she was still not
confident with the results of her research,
she called the federal public defender in
Chicago. She said that office was unable to
assist her, so she called the federal public
defender's office in San Diego. That office
was also not able to help her, but the
person she spoke to gave her an 800 number
in Washington, D.C. and she said she called
that number.
19. Attorney Evans testified she did not
know
how the phone in the Washington, D.C. office
was answered but as far as she knew she was
calling the federal public defender. She
told the person who answered that she was
calling about a habeas corpus question and
she was transferred to someone else. She
testified she did not recall if she talked
to a man or a woman, but whoever she talked
to confirmed her research was correct. She
testified at that point she wrote the March
24, 1997, letter to her client.
20. Attorney Evans notes that Thomas
Hutchison, who works with the federal public
defender for the District of Columbia as
part of the "federal defender training
group," also testified at the hearing.
The "federal defender training group" is the
name the organization has used since May of
1998. Prior to that time it was known as the
sentencing guidelines group. Mr. Hutchison
testified that in March of 1997 his group
was physically located in the office of the
federal public defender for the District of
Columbia but the group's phones rang on a
separate system from the rest of the public
defender's phones and he could not rule out
the possibility that someone walking by the
phones did not pick up the phone and
answer "public defender's office." He said
that would have been an unusual occurrence,
however.
21. Attorney Evans states that the
evidence
presented to the Board indicates there were
four attorneys working in the sentencing
guidelines group in March of 1997. One of
those attorneys was Fran Pratt. Ms. Pratt
maintained a record of the names of people
who had called, and her computer records
reflect that she spoke to Attorney Evans but
the records do not identify the date of the
call or the subject matter.
22. Attorney Evans does not dispute her
client's claim that he never received the
March 24, 1997, letter but she insists she
did author and send it on that date. She
argues that the referee's conclusion that
she fabricated the letter was based almost
entirely on the inference the referee drew
from her use of the term "federal public
defender training program." The referee
concluded that since the office was first
called the "federal public defender training
group" in 1998, the March 24, 1997, letter
using that name must be a fabrication.
Attorney Evans argues that the referee's
analysis ignores the fact that her
description of the group in the letter was
generically correct because the office she
called in Washington, D.C. was in fact an
office of the federal public defender and
was what she reasonably believed to be part
of its training program.
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23. We conclude that the referee's finding
that
Attorney Evans fabricated the March 24,
1997, letter is supported by clear and
convincing evidence.
24. The record shows that Attorney
Evans'
client wrote to her on February 27, 1997,
asking her opinion on the effect of the Anti-
terrorism Act. He wrote again on April 13,
1997, saying,
I have not heard from you since your
February 2nd correspondence, and I have
written to you twice since then. . . . I
am confused and uncertain and would simply
like to know whether you are still handling
my case, and if so, whether the April 23rd
deadline will affect my case in terms of
filing in federal court down the line.
25. The client's father testified at a
deposition given in this proceeding that
between December 1996 and April 1997 he made
30 to 50 phone calls to Attorney Evans but
was never able to reach her. He said on most
occasions he left a message on her answering
machine but on at least one occasion he
spoke to someone in her office and left a
message asking Attorney Evans to call him
back. She never responded.
26. The client's father wrote letters to
Attorney Evans on April 6, April 21 and
April 23, 1997, imploring Attorney Evans to
get in touch with them. Again, she never
replied. It is clear from the letters sent
by the client and his father in April of
1997 that the client never received the
March 24, 1997, letter. Although Attorney
Evans continues to insist that she did send
the letter on March 24, 1997, expressing her
opinion that the Anti-terrorism Act did not
affect her client's case, she fails to
explain why she did not respond to any of
the increasingly desperate requests for her
opinion on that very subject made by both
her client and his father throughout April
of 1997.
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27. While it is possible that Attorney
Evans did
contact the sentencing guidelines group in
Washington, D.C. in March of 1997, it does
not automatically follow that she wrote a
letter to her client at that time. If, as
she claims, the letter was sent on March 24,
1997, the flurry of communications from her
client and his father in the weeks leading
up to April 23, 1997, should have alerted
Attorney Evans to the fact that the letter
was never received. This, in turn, should
have caused her to get in touch with her
client and/or his father and furnish them
with another copy of the letter. The only
reasonable inference that can be drawn from
the record is the one drawn by the referee:
the letter was not written in March of 1997
but was drafted much later, probably around
the time the Board commenced its
investigation. The referee's findings in
this regard have not been shown to be
clearly erroneous. Consequently, we adopt
them.
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28. Attorney Evans also appeals from the
referee's recommendation that her license to
practice law be suspended for two years. She
notes that the recommended two-year
suspension stems largely from the referee's
finding that she fabricated the March 24,
1997, letter. She says if this court
disagrees with the referee's findings
concerning the letter, then the discipline
imposed should be dramatically reduced. In
the alternative, she asserts that even if
the referee's disputed factual finding about
the March 24, 1997, letter should be
adopted, a reduction in the recommended
sanction is still appropriate.
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29. Attorney Evans asserts that a two-year
suspension is overly harsh. She points out
that throughout her career she has worked
for the most needy criminal defendants and
her practice has involved helping people who
are often otherwise poorly represented. She
says her contribution to the legal
profession and her character is attested to
by the various character witnesses who
testified on her behalf at the hearing,
including clients, fellow attorneys, judges
and district attorneys.
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30. The Board takes the position that the
trust
account violations demonstrate a proven
pattern of conduct that goes beyond the
serious problem of putting client funds to
her own personal use. The Board notes that
Attorney Evans used her client trust account
as a personal account and failed to keep
records that would enable her to distinguish
client funds from her own funds. She then
wrote checks on an account when there were
clearly insufficient funds to cover them and
she lied to her clients about the reasons
she was unable to pay them the sums they
were due.
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31. The Board also asserts that the
creation of
a backdated letter as a means of responding
to allegations of misconduct is disturbing
and the March 24, 1997, letter represents an
act of deception and dishonesty toward both
her client and the Board. The Board contends
that no number of character witnesses can
rehabilitate Attorney Evans since her
professional misconduct is no less serious
in the face of accolades offered by her
professional peers.
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32. Having considered the circumstances
surrounding Attorney Evans' professional
misconduct, including the misuse of her
client trust account, her failure to keep
her clients reasonably informed about the
status of their cases and promptly comply
with reasonable requests for information,
and her fabrication of the March 24, 1997,
letter, we determine that a two-year license
suspension is appropriate. That
determination takes into account the
mitigating factors of Attorney Evans'
representation of people who are often
otherwise poorly represented and her
character as attested to by various
witnesses.
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33. By her mishandling of her client trust
account and the fabrication of a letter,
Attorney Evans has shown a willingness to
place her own financial interest above the
welfare of her clients and has also
established a pattern of deception to keep
her professional misconduct from being
discovered. The suspension we impose is
intended not only to impress upon Attorney
Evans the gravity of her professional
misconduct but also to put other attorneys
on notice of the degree of seriousness with
which this court views conduct of this
nature.
34. IT IS ORDERED that the license of
Reesa
Evans to practice law in Wisconsin is
suspended for a period of two years,
effective December 22, 2000.
35. IT IS FURTHER ORDERED that within 60
days
of the date of this order, Reesa Evans pay
to the Office of Lawyer Regulation the costs
of this proceeding, provided that 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 Reesa Evans to practice law
in Wisconsin shall remain suspended until
further order of the court.
36. IT IS FURTHER ORDERED that Reesa
Evans
comply with the provisions of SCR 22.26
concerning the duties of a person whose
license to practice law in Wisconsin has
been suspended.
37. IT IS FURTHER ORDERED that the
Board's
second motion for temporary suspension of
Attorney Evans' license to practice law in
Wisconsin and Attorney Evans' motion to
modify this court's June 29, 1999, order
regarding the maintenance of her client
trust account are both dismissed as moot.
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