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ATTORNEY disciplinary proceeding. Attorney
publicly reprimanded.
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1. PER CURIAM. We review the
recommendation of the referee
that Attorney Robert T. Malloy, whose
license to practice law is already
suspended, receive a public reprimand for
professional misconduct. In addition, the
referee recommended that Attorney Malloy pay
the costs of this proceeding.
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2. We determine that a public reprimand is
appropriate discipline for Attorney Malloy's
misconduct. We also order Attorney Malloy
to pay the costs of this proceeding.
3. The misconduct involved in this
matter
stems from Attorney Malloy's representation
of a client in a divorce proceeding and
consists of failing to act with reasonable
diligence in representing a client and
failing to surrender papers and property to
which a former client is entitled.
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4. Attorney Malloy was admitted to practice
law
in Wisconsin in 1992. He has a significant
disciplinary history, which was summarized
in a stipulation executed by Attorney Malloy
and the Office of Lawyer Regulation (Board)
as follows:
· In 1997, the Supreme Court suspended
Attorney Malloy's license for three months,
consecutive to an earlier one-year
suspension (see bullet-point below), as
discipline for his failure to act with
reasonable diligence and promptness in
representing clients, failing to return a
client's unearned fee upon termination of
representation, failing to comply promptly
with reasonable requests for information and
keep clients reasonably informed of the
status of their legal matters he was
handling, and failing to respond to the
(former) Board of Attorneys Professional
Responsibility (Board) in its investigation
of misconduct allegations. Disciplinary
Proceedings Against Malloy, 212 Wis. 2d
649, 568 N.W.2d 638 (1997).
· Earlier in 1997, the Supreme Court
suspended Attorney Malloy's license for one
year as discipline for his mishandling
client funds and commingling for his own
funds with them, failing to keep required
trust account records, failing to respond to
requests from clients for information
concerning their matters, repeatedly failing
to file or pursue legal matters for which he
was retained, failing to refund unearned
retainers promptly, and his repeated failure
to cooperate with the Board in its
investigation of client grievances.
Disciplinary Proceedings Against Malloy,
209 Wis. 2d 264, 562 N.W.2d 147 (1997).
· In 1994, Attorney Malloy consented
to a public reprimand from the Board as
discipline for failing to appear at
municipal court trials on behalf of three
clients, failing to appear at a hearing on
the court's order to show cause why he
should not be held in contempt for his
failure to appear at one of those trials,
failing to maintain complete and accurate
trust account records of clients funds,
commingling his personal and business funds
with client funds in his trust account, and
continuing to practice law while
administratively suspended for nonpayment of
State Bar dues.
5. More recently, by order dated
September 21, 2001, this court denied
Attorney Malloy's petition for reinstatement
of his license to practice law.
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6. Turning to the matter presently before
the
court, the referee's factual findings are
also derived from the stipulation executed
by the parties. The client hired Attorney
Malloy on August 10, 1993, to represent her
in a divorce proceeding. The court granted
the client's divorce on August 17, 1994. As
the attorney for the moving party, Attorney
Malloy was required to draft and file
findings of fact, conclusions of law, and a
written judgment within 30 days after the
divorce judgment was granted. Wis. Stat. §
767.37(1)(a). He failed to do so. In fact,
he never filed the documents.
7. On December 27, 1995, approximately
19
months after the court had granted the
divorce, the circuit court sent Attorney
Malloy a letter advising him that he had
failed to file the documents and directing
him to file them within 15 days. Attorney
Malloy spoke to the judge's law clerk and
indicated that he was having difficulty
accomplishing this task. In any event, he
neither filed the documents nor otherwise
responded to the court's letter. The client
also asked Attorney Malloy to file the
necessary documents. Again he failed to do
so. Because of Attorney Malloy's failure to
file the documents, the client was unable to
file a contempt motion against her ex-
husband for failure to pay child support
that had been ordered by the court at the
hearing on August 17, 1994.
8. In 1997 the client consulted another
lawyer about filing the necessary documents
to finalize her divorce. The lawyer made
several attempts to communicate with
Attorney Malloy about obtaining the client's
file but Attorney Malloy failed to return
his phone calls and failed to give him the
file. On May 12, 1997, the client's new
lawyer wrote the trial court advising the
court of the difficulty he was having
obtaining the file. He copied Attorney
Malloy on the letter. Attorney Malloy never
provided either the lawyer or the client
with her file.
9. In August 1997 Attorney Malloy
advised
the Board that he was sending the file to
the client's new lawyer, but he failed to do
so.
10. Ultimately, in order to finalize her
divorce, the client was required to pay for
a transcript of the August 17, 1994,
hearing. After receiving the transcript she
filed pro se findings of fact, conclusions
of law, and written judgment in February
1998——three and a half years after the court
had granted her divorce.
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11. On June 1, 2001, the Board commenced
this
disciplinary proceeding with the filing of a
complaint against Attorney Malloy. The
complaint alleged that Attorney Malloy had
engaged in two counts of professional
misconduct.
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12. First, the Board alleged that Attorney
Malloy violated SCR 20:1.16(d) by failing to
surrender papers and property to which a
former client is entitled. Second, the
Board alleged that Attorney Malloy violated
SCR 20:1.3 by failing to act with reasonable
diligence in representing a client.
Attorney Malloy filed an answer generally
denying the allegations.
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13. On October 30, 2001, the parties filed
a
jointly executed stipulation agreeing to the
facts set forth above and stating that it
was further agreed that an appropriate level
of discipline for Attorney Malloy's
professional misconduct was imposition of a
public reprimand and an order that Attorney
Malloy pay the costs of the proceeding. The
stipulation explicitly notes that it was not
the result of a plea bargain and that it
reflected neither a reduction of the charges
nor a reduction of the level of discipline
originally sought by the Board.
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14. The referee issued written findings of
fact
and conclusions of law consistent with the
terms of the stipulation, concluding, on the
basis of the facts set forth on the
stipulation, that Attorney Malloy violated
SCR 20:1.3 and SCR 20:1.16(d). Attorney
Malloy did not appeal the report and
recommendation.
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15. On February 21, 2002, this court issued
an
order to show cause, directing the Board and
Attorney Malloy to explain why more severe
discipline, and/or restitution to the client
should not be imposed by the court. The
parties responded to the satisfaction of the
court, with the Board explaining that it did
not discern uncompensated harm to the client
with enough clarity to request restitution
in this case.
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16. Accordingly, we adopt the referee's
findings
of fact, conclusions of law, and
recommendation with respect to Attorney
Malloy. Attorney Malloy's misconduct with
respect to his handling of this matter is a
serious failing. As discipline for the
professional misconduct we impose a public
reprimand and order Attorney Malloy to pay
the costs of this proceeding, as recommended
by the referee.
17. IT IS ORDERED that Attorney Robert
T.
Malloy be publicly reprimanded for his
professional misconduct.
18. IT IS FURTHER ORDERED that within 60
days
of the date of this order Attorney Robert T.
Malloy shall pay to the Office of Lawyer
Regulation the costs of this proceeding in
the amount of $1266.74. If the costs are
not paid within the time specified, and
absent a showing to this court of his
inability to pay the costs within that time,
the license of Attorney Robert T. Malloy to
practice law in Wisconsin shall remain
suspended until further order of the court.
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