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ATTORNEY disciplinary
proceeding. Attorney's license suspended.
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1. PER CURIAM. We review the stipulation
filed by Attorney
James W. Bannen and the Office of Lawyer
Regulation (OLR) pursuant to SCR 22.12.
That stipulation was accepted by the referee
appointed in this matter who then issued a
report setting forth the findings of fact
and conclusions of law concerning Attorney
Bannen's admitted 13 separate counts of
misconduct. The referee also adopted the
stipulated recommendation that Attorney
Bannen's license to practice law in this
state should be suspended for a period of
three years and that he pay the costs of
these proceedings.
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2. We approve the stipulation, accept the
referee's report and recommendation, and
determine that the seriousness of Attorney
Bannen's misconduct warrants the suspension
of his license to practice law for three
years. We also agree that he should pay the
costs of these proceedings totaling
$3875.63.
3. Attorney James W. Bannen was admitted
to
practice law in Wisconsin in 1974 and has
never before been the subject of a
disciplinary proceeding. He practices in La
Crosse.
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4. On November 15, 2001, the OLR filed a
complaint alleging 13 separate counts of
misconduct against Attorney Bannen. Bannen
filed an answer to that complaint on
December 6, 2001, and pursuant to SCR 22.13
(3), Attorney Catherine Rottier was
appointed to serve as referee in this
matter. Prior to a scheduled hearing
counsel for the OLR and Attorney Bannen
informed the referee that they had reached a
stipulation by which Attorney Bannen
conceded that there was sufficient evidence
to sustain the OLR's burden of proof with
respect to all 13 allegations of misconduct
in the complaint:
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·
Bannen engaged in conduct
involving dishonesty, fraud, deceit or
misrepresentation in violation of SCR 20:8.4
(c) (two counts).
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·
Bannen assisted a client in
conduct that Bannen knew was criminal or
fraudulent in violation of SCR 20:1.2.
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·
Bannen failed to fully and fairly
disclose to the Board of Professional
Responsibility (BAPR) all the facts and
circumstances pertaining to his alleged
misconduct in violation of former SCR 22.07
(2) (two counts).
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·
Bannen failed to fully and fairly
disclose to BAPR all facts and circumstances
pertaining to his alleged misconduct and
made a misrepresentation in a disclosure to
BAPR in violation of former SCR 22.07(2)
(two counts).
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·
Bannen failed to hold in trust
property of clients or third persons in his
possession in connection with the
representation in violation of SCR 20:1.15
(a).
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·
Bannen failed to make reasonable
efforts to ensure that his firm had in
effect measures giving reasonable assurance
that the conduct of a non-lawyer employee
was compatible with the professional
obligations of a lawyer in violation of SCR
20:5.3(a).
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·
Bannen failed to keep complete
records of trust account funds and other
trust property in violation of SCR 20:1.15
(e).
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·
Bannen represented a client while
his representation was materially limited by
Bannen's own interests in violation of SCR
20:1.7(b).
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·
Bannen failed to keep a client
reasonably informed about the status of a
matter and explain the matter to the extent
reasonably necessary to permit the client to
make informed decisions regarding the
representation in violation of SCR 20:1.4
(two counts).
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5. Bannen concedes that the OLR has
sufficient
evidence to sustain its burden of proof with
respect to all of the allegations contained
in all 13 claims identified in the OLR
complaint.
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6. Pursuant to the parties' stipulation the
referee took into account certain mitigating
factors in recommending the appropriate
discipline to be imposed: Bannen has never
previously been the subject of a
disciplinary proceeding during his 27 years
of practice, there was no evidence that
Bannen had benefited personally from the
misconduct, and Bannen or his firm has made
full restitution to the clients for the
losses caused by the misconduct.
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7. In addition, Bannen expressed remorse
for
the mistakes he made; while Bannen agreed
that he clearly exceeded his authority with
respect to some of the misconduct, the
referee noted that he did not do so with any
venal motive or for personal gain.
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8. Moreover, it was stipulated that Bannen
had
cooperated with authorities in an
investigation which resulted in thwarting a
fraudulent scheme that would have put a
client's funds at risk.
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9. The referee also recognized that many of
the
allegations against Bannen involved
activities that had occurred several years
before the BAPR investigation; consequently,
Bannen's responses to the investigator's
inquiries were compiled from memory and from
records which were inadequate and, as Bannen
later discovered, fraudulent.
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10. The referee also noted that it was
stipulated that Bannen was unaware of his
employee's criminal acts which had resulted
in a loss of client funds.
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11. Other mitigating facts were taken into
account by the referee who then adopted the
stipulated recommendation that for Bannen's
admitted misconduct, his license to practice
law should be suspended for a period of
three years and that he pay the costs of
these proceedings.
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12. We adopt the findings of fact and
conclusions of law set forth in the
referee's report based on the parties'
stipulation. Bannen's admitted acts are
serious failings warranting a suspension of
his license even if he did not personally
benefit from the misconduct. We conclude a
three-year suspension of Bannen's license to
practice law is an appropriate discipline
for this misconduct and we direct that he
pay the costs of these proceedings.
13. IT IS ORDERED that the license of
James
W. Bannen to practice law in Wisconsin is
suspended for a period of three years,
effective November 21, 2002.
14. IT IS FURTHER ORDERED that James W.
Bannen comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
15. IT IS FURTHER ORDERED that within 60
days
of the date of this order James W. Bannen
pay to the Office of Lawyer Regulation the
costs of this proceeding in the amount of
$3875.63. If the costs are not paid within
60 days, and absent a showing to this court
of his inability to pay the costs within
that time, the license of James W. Bannen to
practice law in Wisconsin shall remain
suspended until further order of this court.
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