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ATTORNEY disciplinary
proceeding. Attorney's license suspended.
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1. PER CURIAM. We review the findings of
fact, conclusions
of law, and recommendation for discipline of
the referee, Timothy L. Vocke, pursuant to
former SCR 21.09(5). Attorney Terry J. Ness
was found to have engaged in numerous
violations of the Rules of Professional
Conduct in the course of his practice of
law. The referee has recommended that
Attorney Ness's license to practice law be
suspended and that he pay the costs of these
proceedings.
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2. We approve the findings, conclusions,
and
recommendations of the referee and determine
that the seriousness of Attorney Ness's
conduct warrants the imposition of these
sanctions.
3. Attorney Ness was admitted to the
practice of law in Wisconsin in 1998. He
also took, but did not pass, the Minnesota
bar exam. At all times material to this
matter Attorney Ness worked for a
Minneapolis law firm, Halunen & Ness. He
has no prior attorney disciplinary history.
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4. On July 27, 2001, the Board issued a
complaint against Attorney Ness ordering him
to answer within 20 days. He filed an
answer, and subsequently entered into a
stipulation with the Board, by which he
admitted most of the factual allegations of
the complaint, which consisted of six
counts. However, he did not stipulate to
whether those facts amounted to a violation
of the supreme court rules. The referee
conducted a disciplinary hearing on March
14, 2002, and subsequently issued his
findings, conclusions, and recommendation
for discipline on April 12, 2002.
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5. Count one, practicing law in a
jurisdiction
where doing so violated the regulation of
the legal profession in that jurisdiction,
in violation of SCR 20:5.5(a), and counts
two through four, knowingly making a false
statement of fact or law to a tribunal, in
violation of SCR 20:3.3(a)(1), arose out of
Attorney Ness's appearances in a Minnesota
state court and federal court. He
represented to the federal court that he
could appear pro hac vice because he was
admitted in a Wisconsin federal court, which
was not true. However, in reliance on his
statement, the federal court admitted him.
He told the Minnesota state court that he
was admitted in that particular county on a
pro hac vice basis and also implied to that
court that his partner, who was admitted to
practice in Minnesota, was involved in all
aspects of the particular case, when neither
was true. He also later indicated to the
state court that he thought the federal pro
hac vice admission, which he fraudulently
obtained, would suffice for state court as
well.
6. The referee found that the supreme
court
rules were violated with respect to these
four counts. He found that Attorney Ness
had deceived both courts by portraying that
he had been admitted in the Wisconsin
federal court when that was not true, by
claiming that he was admitted in the county
on a pro hac vice basis when that was not
true, and by claiming that his partner was
actually involved in the state case when in
fact it was entirely his own. The referee
further indicated that Attorney Ness had
attempted to deceive the state court by
initially claiming that he was newly
admitted and that was why his name did not
appear on the state computer database, and
then later fabricating the claim that he was
admitted pro hac vice for purposes of that
case.
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7. Count five, failing to indicate
jurisdictional limitations while not
licensed to practice law in the jurisdiction
in which the office is located, in violation
of SCR 20:7.5(b), arose because Attorney
Ness did not adequately disclose to
potential clients that he was not licensed
in Minnesota. In addition, he claimed a
Wisconsin office which was merely his
father's home.
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8. Counts six and seven, making a false or
misleading communication about himself and
his services, in violation of SCR 20:7.1(a),
involved the use of a letterhead that
falsely stated Attorney Ness was admitted in
federal courts and in Minnesota when that
was not true. In addition, these counts
involved Attorney Ness's references to his
firm as a "national law firm" concentrating
on federal False Claims Acts cases, and
implying that the firm had achieved
significant settlements and verdicts in the
successful prosecution of hundreds of such
claims, when none of this was true.
9. With respect to these three counts,
the
referee found that Attorney Ness had
repeatedly used letterheads, websites, fax
transmission cover sheets, and similar
communications suggesting that there were no
jurisdictional limits to his practice and
that he was admitted both in Minnesota and
in federal courts. In addition, the referee
found that Attorney Ness had repeatedly
claimed he was an expert in False Claims
Acts cases when that was not accurate;
indeed, neither Attorney Ness nor his firm
had ever litigated such a case.
10. We find that Attorney Ness violated
the
relevant supreme court rules with reference
to the seven counts with which he was
charged and thereby adopt the referee's
findings and conclusions concerning these
counts.
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11. The Board asked for a nine-month
suspension
which would require Attorney Ness to apply
for reinstatement and convince this court
that he had learned something about the
ethics and practice of law. He sought a
suspension of less than six months so that
he could automatically start his practice
after the suspension. The referee
concluded:
Attorney Ness simply doesn’t get it; he
is basically dishonest. He doesn’t see
anything wrong with what he has done. He
has done nothing to correct any of the
misinformation that he has provided to
either the Federal or State Courts in
Minnesota. He has attempted to deflect and
mislead OLR during its investigation. He
was less than honest in the disciplinary
proceeding.
His approach throughout the course of the
proceeding was to try to deny the obvious
and concede a point only when it was
impossible not to do so. This Referee and
the Supreme Court has to decide whether
Attorney Ness engaged in the activities that
he did because he was incredibly incompetent
or whether he did so because he was
dishonest.
Based upon his appearance before me, I
have concluded that the latter is true.
The referee recommended a nine-month
suspension along with costs of $5952.40.
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12. We agree with the referee's comments
and
adopt the referee's recommendation for
discipline which is appropriate for the
professional misconduct demonstrated in this
case. Attorney Ness's misconduct was both
repeated and serious, warranting the
substantial sanction involved here.
13. Accordingly, it is appropriate that
the
license of Attorney Ness to practice law in
this state be suspended for a period of nine
months and that he pay the costs of this
proceeding in the amount of $5952.40.
14. IT IS ORDERED that the license of
Attorney Terry J. Ness to practice law in
Wisconsin be suspended for a period of nine
months, effective November 6, 2002.
15. IT IS FURTHER ORDERED that Attorney
Terry
J. Ness comply with the provisions of SCR
22.26 concerning the duties of an attorney
whose license to practice law has been
suspended.
16. IT IS FURTHER ORDERED that within 60
days
of the date of this order Attorney Terry J.
Ness shall pay $5952.40 to the Board,
representing the costs of this proceeding.
If these 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
Terry J. Ness to practice law shall remain
suspended indefinitely until further order
of the court.
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