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ATTORNEY disciplinary
proceeding. Attorney's license revoked.
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1. PER CURIAM. We review the findings of
fact, conclusions
of law, and recommendation for discipline of
the referee, Charles J. Herro pursuant to
SCR 21.09(5). Attorney Asher was found to
have engaged in numerous instances of
unprofessional conduct in the course of his
practice of law in violation of the rules of
professional conduct. The referee has
recommended that Attorney Asher's license to
practice law be revoked, that restitution be
paid to several clients, and that the costs
of these proceedings be paid.
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2. We approve the findings, conclusions and
recommendations of the referee and determine
that the seriousness of Attorney Asher's
misconduct warrants the imposition of these
sanctions.
3. Attorney Asher was admitted to the
practice
of law in Wisconsin in 1984 and had his
office in Dousman. He has no prior attorney
disciplinary history.
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4. On October 2, 2000, the Board issued a
complaint against Attorney Asher ordering
him to answer within 20 days. He responded
that he would not be filing any formal
response and would not participate in the
disciplinary proceedings. On October 24,
2000, the Board moved the referee for an
order determining that he was in default for
failing to answer the complaint and for an
order requesting that the referee accept as
true and correct and uncontested the
allegations found within the Board's
complaint. The referee conducted a telephone
hearing on the motion on November 14, 2000,
and granted the motion on November 20, 2000.
The referee then issued his findings,
conclusions and recommendation for
discipline on November 22, 2000.
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5. A general description of the facts and
circumstances leading to these disciplinary
proceedings is necessary. In 1984, Attorney
Asher incorporated a law firm which he named
the Christian Law Center ("CLC"). This was
solely his firm, although he may have
employed one or more associates or others at
various times. In general, the CLC
advertised extensively and handled a high
volume of relatively low-asset personal
bankruptcies. At the same time, Attorney
Asher was also the minister of a church he
had founded and also operated other business
enterprises.
6. During the late summer of 1999, it was
widely reported in the media that Attorney
Asher had extremely serious problems, both
financially and regarding appropriate legal
representation of his clients. Around that
time, he twice relocated his offices, and
notified his clients by letter dated August
27, 1999, that he was forced to close the
CLC due to financial problems. Up to that
time, however, he continued to accept
retainer and filing fee payments from
clients for work to be performed, much of
which went unperformed.
7. From that time on, until mid-2000, the
Board
received numerous grievances from clients
alleging that they had paid funds to
Attorney Asher for bankruptcy filing fees
and retainers in cases which ultimately were
never filed by him. The Board's complaint
alleged 233 violations of the rules of
professional conduct relating to 58 clients.
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8. The first set of these allegations, 51
counts each, involve simultaneous violations
of SCR 20:1.15(a), failure to deposit client
funds into a trust account and, SCR 20:8.4
(c), engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation arising out of converting
funds of the client to the attorney's own
use. Attorney Asher's trust account,
entitled "Christian Law Center of WI, S.C.,
IOLTA," was essentially inactive throughout
its existence in 1998-99. His account at
another bank, entitled "Christian Law Center
of Wisconsin, S.C., Filing Fee Account," was
apparently opened in early 1998. Bank
records show this second account to be
active during its six-month existence. For
the first two months it existed, the second
account was used for the deposit and payment
of bankruptcy filing fees but was not used
exclusively for this purpose. A number of
checks from this account were made payable
to Attorney Asher and his employees. Seven
checks written in February and March of 1999
were returned for reason of insufficient
funds in the account. Thereafter, checks
totaling in the tens of thousands of dollars
were written to employees and to pay office
expenses. After early April of 1998, none of
the checks drawn on the filing fee account
were payable to the United States Bankruptcy
Clerk. The account was again occasionally
overdrawn and account activity began to
taper off. The filing fee account was closed
in July of 1998. Attorney Asher declared on
August 27, 1999, that he did not have on
deposit, in trust, any filing fees paid to
him by clients. After that date, he never
reimbursed any client for filing fees he
received but had not paid to the bankruptcy
clerk.
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9. We find that Attorney Asher has
committed 51
violations of SCR 20:1.15(a) and 51
violations of SCR 20:8.4(c). We further
adopt the referee's finding that the amount
converted by Attorney Asher, based on the
statements and proofs of payment provided by
only those clients who filed grievances
against him, was $8900.
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10. The second set of allegations concern
53
violations of SCR 20:1.16(d), unearned fees
that attorney failed to return to clients.
These violations arise out of the above-
described circumstances in which clients
paid retainers to Attorney Asher who did not
then file bankruptcies on their behalf.
Although he or his staff may have spent some
time with some clients or even partially
completed documents, the clients involved
received no value from Attorney Asher or the
bankruptcy was never actually filed by him.
11. We find that Attorney Asher has
therefore
committed 53 violations of SCR 20:1.16(d).
We further adopt the referee's finding that
these unearned fees were $33,811.50.
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12. The third set of allegations concern 18
violations of SCR 20:1.3, failing to act
with reasonable diligence and promptness in
representing a client. These violations
concern the above-described instances where
clients had paid the attorney fees in full
but Attorney Asher did not timely file the
bankruptcy action. The Board has not alleged
possible violations of this nature when the
fees were paid very shortly before the
closing of Attorney Asher's law office.
13. We find that Attorney Asher has
committed
18 violations of SCR 20:1.3.
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14. The fourth set of allegations concern
three
violations of SCR 20:1.4(a), failure to keep
a client reasonably informed about the
status of a matter and to comply with a
client's reasonable requests for
information. These instances concern those
clients who complained that Attorney Asher's
staff repeatedly put them off when they
called to make inquiries or simply received
no response whatsoever to their telephone
messages.
15. We find that Attorney Asher has
committed
three violations of SCR 20:1.4(a).
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16. The fifth set of allegations concern
one
violation of SCR 20:1.16(a)(3), representing
a client after discharge. This concerns the
one instance in which Attorney Asher filed a
bankruptcy action after he was discharged by
his client.
17. We find that Attorney Asher has
committed
one violation of SCR 20:1.16(a)(3).
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18. The sixth set of allegations concern 56
violations of SCR 22.07(3), failure to
cooperate with the Board's investigation. Of
the 58 client matters referenced within its
complaint Attorney Asher cooperated with
only one Board investigation. In another
matter, an inquiry was sent to him but the
Board did not request a response. As to the
remaining 56 client matters in which the
Board conducted an investigation, Attorney
Asher made no response to the initial
inquiries from the Board. Some inquiries did
not generate a response whatsoever. Other
inquiries were returned to the Board
marked "Refused - Return to Sender."
Finally, some inquiries were returned by the
United States Post Office with the
indication that Attorney Asher had moved and
left no forwarding address.
19. We find that Attorney Asher has
committed
56 violations of SCR 22.07(3).
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20. We further adopt the referee's
recommendation for discipline which, in
turn, adopted the Board's request in its
complaint. The referee's overall
recommendation is appropriate discipline for
the professional misconduct demonstrated in
this case. Attorney Asher's misconduct with
his clients and with respect to his Board
obligations were serious, multiple failings
warranting severe sanction.
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21. Accordingly, it is appropriate that:
(1) the
license of Attorney Asher to practice law in
this state be revoked; (2) that within 60
days Attorney Asher make restitution for the
$8900 that he converted and for the
$33,811.50 unearned fees he failed to return
to clients, as generally described above and
as more specifically alleged in the
individual client matters described in
Board's complaint; and, (3) Attorney Asher
pay the $1361.25 costs of these proceedings.
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22. IT IS ORDERED that the September 13,
1999,
order of this court accepting the
resignation of Attorney John V. Asher from
the State Bar of Wisconsin is vacated.
23. IT IS FURTHER ORDERED that the
license of
Attorney John V. Asher to practice law in
the state of Wisconsin be revoked, effective
the date of this order.
24. IT IS FURTHER ORDERED that John V.
Asher
comply with the provisions of SCR 22.26
concerning the duties of an attorney whose
license to practice law has been revoked.
25. IT IS FURTHER ORDERED that within 60
days
of the date of this order John V. Asher
shall pay to his former clients, pursuant to
paragraphs 5-12, 15-40, 43-60, 63-114, and
119-122 of the Board's complaint, $8900 and
$33,811.50 with interest at 5% from July 1,
2000.
26. IT IS FURTHER ORDERED that within 60
days
of the date of this order John V. Asher
shall pay $1361.25 to the Office of Lawyer
Regulation representing the costs of this
proceeding.
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