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This Reprimand is based upon Attorney James
J. Ermert’s representation of two clients in
two separate matters. In the first matter,
the personal representative of an estate
retained Atty. Ermert to probate a small
estate on August 14, 1997. There was no
written fee agreement. On October 16, 1997,
Atty. Ermert filed an application for
informal administration. On October 31,
1997, the personal representative opened a
checking account for the estate into which
she deposited the estate’s funds. She pre-
signed two blank checks from the estate’s
checking account and left them with Atty.
Ermert. Atty. Ermert told the personal
representative that he would use them to pay
estate expenses.
On November 4, 1997, Atty. Ermert made
one of the pre-signed checks payable to
himself for $2000 and cashed it. “Retainer”
was written on the memo line. Atty. Ermert
did not obtain the personal representative’s
consent to withdraw these funds from the
estate checking account at the time nor did
he advise the personal representative of the
amount of the fees he intended to withdraw
or when he was going to withdraw them.
On May 21, 1998, the probate court issued
an order to show cause why the inventory had
not been filed within six months of issuance
of the domiciliary letters. At the hearing
on the order to show cause on July 8, 1998,
Atty. Ermert told the court that he had
faxed the inventory to the personal
representative. At a subsequent hearing on
October 9, 1998, Atty. Ermert told the
probate court that he had been in contact
with the personal representative and should
be able to file the inventory soon. At a
review hearing on July 12, 1999, Atty.
Ermert told the probate court that the
inventory would be filed within the week;
however, the general inventory wasn’t filed
until October 11, 1999.
On December 11, 1998, Atty. Ermert made
the second pre-signed check payable to
himself in the amount of $2000 and cashed
it. Atty. Ermert did not obtain the
personal representative’s consent to
withdraw these funds from the estate
checking account at the time nor did he
advise the personal representative of the
amount of the fees he intended to withdraw
or when he was going to withdraw them.
On April 29, 1999, the probate court
issued an order to show cause why the estate
had not been closed within eighteen months
of filing. At the June 11, 1999 order to
show cause hearing, the court gave Atty.
Ermert until July 9, 1999 to file the final
account and petition for approval of
distribution. Atty. Ermert failed to file
either the final account or the petition by
July 9, 1999. At an October 11, 1999 review
hearing, the court extended the time until
October 29, 1999 for Atty. Ermert to file
the petition. Atty. Ermert failed to file
the petition by October 29, 1999.
On March 15, 2000, after Atty. Ermert
failed to appear at a review hearing on
March 13, 2000, the probate court issued an
order for appearance requiring Atty. Ermert
to appear on March 31, 2000. On March 31,
2000, Atty. Ermert provided the court with a
partially completed final account. The
final account was returned to Atty. Ermert
for completion and the matter was
rescheduled for a review hearing on May 5,
2000.
On May 5, 2000, the personal
representative attended the review hearing
after receiving a letter from the probate
court that stated that she needed to appear
in person. Prior to the hearing, she
obtained bank statements and copies of the
two pre-signed checks that showed that both
checks had been made payable to Atty. Ermert
in the amount of $2000. At the hearing, the
judge, the personal representative and Atty.
Ermert discussed the two payments to Atty.
Ermert off the record. As a result, the
judge removed Atty. Ermert as the attorney
for the estate and ordered him to pay
successor counsel’s fees. In a letter dated
May 5, 2000, the successor counsel, on
behalf of the personal representative,
demanded that the entire $4,000 be returned
to the estate. On May 8, 2000, Atty. Ermert
refunded the entire $4,000 to the estate.
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By failing to close the probate of the
estate for over 30 months, Atty. Ermert
failed to act with reasonable diligence and
promptness in representing a client, in
violation of SCR 20:1.3. By not obtaining
authorization from the personal
representative to withdraw the funds from
the estate’s checking account at the time
the checks were written, Atty. Ermert failed
to reach an agreement with the personal
representative regarding: (1) his right to
look to the estate funds for the payment of
his fees; (2) the amount to which he was
entitled; and (3) the time at which payment
would be expected, in violation of SCR 20:8.4
(f) in conjunction with Disciplinary
Proceedings Against Marine, 82 Wis.2d 602,
264 N.W.2d 285 (1978).
In the second matter, Atty. Ermert
represented a defendant in a criminal case.
The defendant paid Atty. Ermert $2,000.
Atty. Ermert filed a motion to suppress
defendant’s statements to the police. The
trial court granted defendant’s motion and
the state appealed the trial court’s
decision.
Respondent’s (defendant’s) appellate
brief was initially due on May 22, 2002. On
May 20, 2002, Atty. Ermert filed a motion
for enlargement of time until June 12, 2002
to file a respondent’s brief, which was
granted. On June 13, 2002, Atty. Ermert
filed a second motion for enlargement of
time until July 3, 2002 to file a
respondent’s brief, which was also granted.
On July 3, 2002, Atty. Ermert filed a third
motion for enlargement of time. The court
of appeals granted an extension until July
24, 2002 and stated that if a respondent’s
brief was not filed by that date, the appeal
would be submitted for a decision without a
respondent’s brief. Atty. Ermert did not
inform the defendant about this third motion
for enlargement of time.
Atty. Ermert failed to file a
respondent’s brief by July 24, 2002 and did
not inform the defendant that he did not
file a brief. At a status conference on
July 29, 2002, the defendant found out that
a respondent’s brief had not been filed when
the assistant district attorney stated so to
the court. On September 14, 2002, Atty.
Ermert refunded to the defendant the $2,000
she had paid him.
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By failing to file a respondent’s appellate
brief by July 24, 2002, Atty. Ermert failed
to act with reasonable diligence and
promptness in representing a client, in
violation of SCR 20:1.3. By failing to
inform the defendant about the third motion
for enlargement of time and by failing to
inform her that he did not file a
respondent’s appellate brief, Atty. Ermert
failed to keep a client reasonably informed
about the status of a matter, in violation
of SCR 20: 1.4(a).
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Both grievants have been notified in advance
of this proposed stipulation. Thirty days
have passed since they were notified.
Neither has chosen to object in any way to
the findings or the proposed agreed upon
sanctions.
Under the circumstances presented, I find
the stipulation and agreed upon sanctions to
be a fair resolution of this matter
In accordance with SCR 22.09(3), Attorney
James J. Ermert is hereby publicly
reprimanded.
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