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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 Ty Christopher Willihnganz be
publicly reprimanded for professional
misconduct. That misconduct consisted of
failing to abide by a client's decision
concerning the objectives of representation,
failing to consult with the client as to
means by which such objectives are to be
pursued, and failing to abide by the
client's decision, after consultation, as to
a plea to be entered, in violation of SCR
20:1.2(a). Also, the misconduct consisted of
Willihnganz's willful failure to provide
relevant information, to answer questions
fully, or to furnish documents to the Office
of Lawyer Regulation (OLR) during the course
of an investigation into misconduct
allegations, in violation of SCR 21.15(4),
SCR 22.03(2), SCR 22.03(6), and SCR 22.04
(1). Neither Attorney Willihnganz nor the
OLR has appealed from the referee's findings
of fact, conclusions of law, and recommended
discipline.
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2. We conclude that Ty Christopher
Willihnganz's professional misconduct
warrants a public reprimand for his
violation of various supreme court rules. We
also agree with the referee's recommendation
that Willihnganz be required to pay the
costs of this disciplinary proceeding
totaling $1207.92.
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3. Ty Christopher Willihnganz was admitted
to
practice law in Wisconsin on April 11, 1996.
His license to practice law was suspended on
June 6, 2001, for noncompliance with
Continuing Legal Education (CLE) reporting
requirements. His license remains suspended.
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4. On August 15, 2003, the OLR filed a
complaint in this court alleging two counts
of violation of the rules of professional
responsibility by Willihnganz. Willihnganz
subsequently filed an untimely answer to the
complaint and Attorney John A. Fiorenza was
appointed as referee in this matter.
Subsequently, Referee Fiorenza granted the
OLR's motion for a default judgment based on
Willihnganz's failure to respond to the
referee's request for a pretrial conference
and Willihnganz's failure to appear at the
scheduled pretrial conference. Referee
Fiorenza noted that the correspondence to
Willihnganz had been returned indicating
that he has moved and left no forwarding
address. Referee Fiorenza, on December 19,
2003, filed his report and recommendation in
this disciplinary action.
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5. The two counts of professional
misconduct
alleged in the OLR complaint briefly
summarized are these:
CLIENT G.H.B.
6. G.H.B. retained Attorney Charles J.
Hertel, a partner in the law firm in which
Willihnganz was then an associate. G.H.B.
retained Attorney Hertel to represent him on
an August 20, 1998, municipal ordinance
citation for trespassing. Attorney Hertel
entered a plea of not guilty on G.H.B.'s
behalf.
7. On September 15, 1998, G.H.B.
executed an
authorization form which allowed the law
firm to appear on G.H.B.'s behalf in the
trespass matter without G.H.B. being
present. Attorney Hertel informed G.H.B., in
correspondence dated September 11, 1998,
which enclosed the "Written Authorization to
Appear" as follows: "You should be advised
that we will take no action unless it is
first authorized by you."
8. Trial in the trespass matter was
scheduled for October 29, 1998; however,
because Attorney Hertel was unavailable on
that date, the case was assigned to
Willihnganz. G.H.B. was not given written
notice of the October 29, 1998, trial date.
9. Subsequently, Attorney Hertel
instructed
Willihnganz to contact G.H.B. to prepare for
trial and to contest the trespass charges.
On October 28, 1998, Hertel again instructed
Willihnganz to contest the charges pending
against G.H.B. On October 29, 1998, the
scheduled trial date, Willihnganz appeared
in court on G.H.B.'s behalf; G.H.B. was not
present. Willihnganz entered a no contest
plea on G.H.B.'s behalf; G.H.B. was found
guilty and a forfeiture of $147.50 was
assessed against him in the trespass matter.
10. Subsequently, Attorney Hertel asked
Willihnganz about what had occurred at that
court hearing. Willihnganz informed Attorney
Hertel that G.H.B. had not appeared and as a
consequence, he had been found guilty.
11. Attorney Hertel asked Willihnganz
whether he had been in contact with G.H.B.
Willihnganz responded that he had left a
number of telephone messages for G.H.B., but
the client had not returned the calls.
G.H.B. was not given written notice by
Willihnganz of the disposition in his
trespass matter.
12. G.H.B. remained unaware of the
forfeiture and subsequently, his driver's
license was suspended for nonpayment of it.
G.H.B. thereafter paid the forfeiture, plus
a fee, to get his driver's license
reinstated.
13. Willihnganz left the Hertel firm and
accepted employment with a law firm in
Brookfield, Wisconsin. Willihnganz's
employment with the Brookfield firm,
however, ended after his license to practice
law in this state was suspended on June 6,
2001, for his failure to comply with
mandatory CLE requirements.
14. By letter dated February 13, 2002,
the
OLR staff informed Willihnganz of a
grievance inquiry concerning the G.H.B.
matter. The OLR requested his written
response by March 8, 2002, but Willihnganz
failed to respond by that date. On March 11,
2002, the OLR staff sent a follow-up letter
to Willihnganz by certified and first-class
mail requesting a response by March 21,
2002. Willihnganz signed the certified mail
receipt on March 12, 2002, but failed to
respond as requested by March 21, 2002.
15. Subsequently, on May 14, 2002, the
OLR
staff forwarded Willihnganz's file to OLR's
district committee for investigation. On
June 25, 2002, the OLR staff received a
response from Willihnganz dated June 10,
2002, which was forwarded to the district
committee. In that correspondence
Willihnganz stated that he had no relevant
information to add to the matter and he had
no recollection at all of the representation
he had provided for G.H.B.
16. The OLR district committee
investigator,
despite writing to Willihnganz and leaving a
phone message, and, later conducting an
internet search in an attempt to locate
Willihnganz, never heard from Willihnganz
regarding this matter.
COUNT ONE
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17. The OLR complaint alleged and the
referee
determined that by changing his client's
plea from not guilty to no contest without
the client's knowledge or consent, which
resulted in the client being found guilty of
trespass, Willihnganz had failed to abide by
a client's decision concerning the
objectives of representation, had failed to
consult with a client as to means by which
the objectives were to be pursued, and had
failed to abide by the client's decision,
after consultation with the lawyer, as to
the plea to be entered, in violation of SCR
20:1.2(a).
COUNT TWO
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18. The OLR complaint further alleged and
the
referee also determined that by failing to
provide a timely response to the OLR staff
concerning the G.H.B. grievance and by
failing to respond to requests for
information from the OLR's district
committee investigator, Willihnganz had
willfully failed to provide relevant
information, to answer questions fully, or
to furnish documents to the OLR during the
course of the investigation, in violation of
SCR 21.15(4), SCR 22.03(2), SCR 22.03(6),
and SCR 22.04(1).
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19. After concluding that Willihnganz had
engaged in the misconduct as alleged in the
complaint, the referee recommended that
Willihnganz be publicly reprimanded for his
misconduct.
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20. We adopt the referee's findings of fact
and
conclusions of law and determine that
Willihnganz's misconduct as established in
this proceeding warrants a public reprimand.
21. IT IS ORDERED that Attorney Ty
Christopher Willihnganz is publicly
reprimanded for his professional misconduct.
22. IT IS FURTHER ORDERED that within 60
days
of the date of this order Attorney Ty
Christopher Willihnganz pay to the Office of
Lawyer Regulation the costs and fees
incurred in this proceeding totaling
$1207.92.
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