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A woman was fired from her employment in
June, 1993. The woman was denied
unemployment compensation, and she appealed
that decision. While the appeal was pending
in August, 1993, the woman met with Atty.
Terrence J. Woods, Respondent.
Respondent agreed to represent the woman
at a telephonic hearing in the unemployment
compensation appeal case. Respondent and
the woman did not sign a fee agreement. The
woman told Respondent that she believed that
she was also entitled to vacation pay, but
Respondent replied that he would resolve the
unemployment benefits case first before he
would do anything about her vacation pay.
On November 11, 1993, an administrative
law judge reversed the initial decision and
awarded unemployment benefits to the woman.
The woman alleges that Respondent never
discussed with her the basis on which he
would bill her other than his indicating
that they would talk about fees after the
unemployment compensation decision was
issued. The woman alleges there was no
discussion regarding a statute limiting
attorney fees in unemployment compensation
cases. (Sec. 108.09(8)(b), Stats., limits
attorneys from charging the claimant more
than ten percent (10%) of the benefits at
issue in the proceeding without prior
approval from the Unemployment Compensation
Division.)
Respondent states that he told the woman
that he would help her on a contingent fee
basis, namely, he would be paid if she won,
and he would not be paid if she lost.
Respondent acknowledged that he did not
reduce a fee agreement to writing.
Respondent never billed the woman in the
unemployment compensation case, and he
received no fees. Respondent asserts that
he and the woman discussed fees at their
initial meeting and that she told him that
she was out of work and had no money.
Respondent believes that his total fee
was between $150 and $200, but he
acknowledges that he never communicated that
fee to the woman. Nonetheless, Respondent
asserts that he had an agreement with the
woman that he was not going to pursue the
vacation pay issue unless he was paid on the
first matter.
The woman and her husband met again with
Respondent in late November or early
December, 1993, after the unemployment
compensation decision was issued. The
woman’s husband offered to pay Respondent,
but Respondent told him that they would
resolve that after the outcome of the case
against the former employer for vacation pay.
The woman alleges that during the second
meeting with Respondent, he never discussed
the basis on which he would bill her for
representation in the vacation pay case.
The woman never received a bill from
Respondent, and she alleges that he never
requested that she advance any filing fees
or court costs. The woman also alleges that
Respondent never discussed a statute of
limitations in the vacation pay matter.
Respondent asserts that he and the woman
discussed fees at the second meeting and
that he told her that he should be paid now
that the first case was won. Respondent
does not remember specifically asking her
for a fee of $150 or $200.
Respondent never filed a law suit in the
vacation pay case, and the time period for
filing the law suit has expired. Between
December, 1993 and June, 1995, the woman
called Respondent’s office approximately
twenty times regarding the vacation pay
case. The woman believes that she spoke
with Respondent on one occasion. On another
occasion, Respondent’s paralegal told her
that Respondent was working on the case.
During another call, one of Respondent’s
employees told the woman that they were
going to file a small claims action
regarding the vacation pay issue. The woman
checked with court officials and learned
that Respondent had not filed suit. The
woman called Respondent’s office again, and
Respondent’s employee told her that the
court staff did not know what they were
talking about and that Respondent’s office
had filed something.
Respondent states that the woman called
his office on May 17, 1994 and discussed the
issue of payment with one of his employees.
Respondent states that when his employee
inquired about payment before doing
additional work, the woman stated that she
did not have to pay for the unemployment
compensation case prior to any additional
work being done for her.
Respondent asserts that he did not have
an attorney/client relationship with the
woman in the vacation pay case. Respondent
acknowledges that he never communicated in
writing to the woman that he was not going
to proceed on the vacation pay case without
payment on the first case. Respondent
states that he wanted the woman to pay the
filing and service fees in advance in the
vacation pay case, but he acknowledged that
he did not communicate that to the woman.
On June 14, 1995, Respondent wrote to the
woman’s former employer regarding the
vacation pay matter. Respondent stated that
he had been retained to represent the woman
in a claim for non-payment of vacation pay
and that the former employer should promptly
deliver the vacation pay or Respondent would
institute legal action. Respondent sent a
copy of the letter to the woman. Respondent
did not receive a reply from the former
employer.
On June 15, 1995, Respondent provided the
woman with a Claim for Wages form under sec.
109.09, Stats. Respondent advised her to
complete, execute and submit the form to the
Wisconsin Department of Industry, Labor and
Human Relations.
In mid-October, 1995, Respondent drafted
a summons and complaint for small claims
court for the vacation pay case. Respondent
requested judgment in the amount of
$615.40. He signed the summons and
complaint on October 19, 1995, but it was
never filed. Respondent does not recall
doing anything more on the vacation pay case
after October, 1995.
In August, 2000, the woman and her
husband encountered Respondent by chance.
The woman’s husband states that he asked
Respondent if he was going to take care of
the vacation pay issue and that Respondent
replied that he was working on it and that
they had lots of time to file the claim.
The woman’s husband alleges that Respondent
told him that he would get back to them, but
Respondent never did. The conversation in
August, 2000 was the last conversation that
the woman had with Respondent.
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In failing to file and prosecute a small
claims case from November, 1993 to the
present on behalf of the woman who sought to
recover vacation pay from a former employer,
during which time the applicable statute of
limitations in which to bring such an action
expired, Respondent violated SCR 20:1.3,
which requires a lawyer to act with
reasonable diligence and promptness in
representing a client.
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In failing to return any of approximately
twenty phone calls that the woman made to
his office from December, 1993 through June,
1995, in which she attempted to learn the
status of the small claims case regarding
her vacation pay, and in failing to inform
the woman that he had not filed a small
claims lawsuit on her behalf and that he had
allowed the applicable statute of
limitations to expire without having filed
suit, Respondent violated SCR 20:1.4(a),
which requires a lawyer to keep a client
reasonably informed about the status of a
matter and promptly comply with reasonable
requests for information.
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In failing to inform the woman that the
applicable statute of limitations was going
to expire in the vacation pay matter without
his having filed a lawsuit on her behalf, in
order to give the woman an opportunity to
pursue the matter on her own or through
other counsel if she chose to do so,
Respondent violated SCR 20:1.4(b), which
requires a lawyer to explain a matter to the
extent reasonably necessary to permit the
client to make informed decisions regarding
the representation.
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In failing to communicate to the woman the
basis or rate of his fee in the unemployment
compensation appeal case, Respondent
violated SCR 20:1.5(b), which states that
when a lawyer has not regularly represented
the client, the basis or rate of the fee
shall be communicated to the client,
preferably in writing, before or within a
reasonable time after commencing the
representation. Respondent further violated
SCR 20:1.5(b) when he failed to communicate
to the woman the basis or rate of his fee in
the vacation pay matter from November, 1993
to the present, including the fact that he
wanted her to pay filing and service fees in
advance before he would file the lawsuit.
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In failing to reduce a contingent fee
agreement in writing in the unemployment
compensation appeal case, Respondent
violated SCR 20:1.5(c), which requires
contingent fee agreements to be in writing.
In an unrelated matter, a woman was
injured in October, 1994 when she inhaled
fumes from cleaning chemicals while working
at her place of employment. She experienced
breathing problems and was taken by
ambulance to a medical facility. She
continued to receive periodic medical care
thereafter.
In November, 1996, the woman contacted
Respondent regarding potential
representation for a workers compensation
claim relating to that injury. The woman
and Respondent did not sign a retainer
agreement for a workers compensation claim.
The woman, however, signed a medical
authorization form on November 8, 1996.
During November and December, 1996,
Respondent sent a notice of retainer to the
former employer and also requested medical
records from the woman’s health care
providers. The workers compensation carrier
for the former employer subsequently paid
medical bills relating to care that the
woman received on October 4, 1994 and
October 6, 1994.
In June and July, 1997, Respondent again
requested copies of medical records from
some of the health care providers. At
Respondent’s instruction, on June 27, 1997,
the woman signed an “Application for
Hearing” with the Department of Workforce
Development, but the form was never filed.
Respondent continued to engage in
correspondence regarding the woman’s records
through July 15, 1997.
Respondent states that sometime late in
1997, he determined that he had collected
the information that was necessary to
analyze the workers compensation claim.
Respondent states that he concluded that he
would not pursue the matter, due to the
woman’s pre-existing health conditions and
because Respondent did not believe that she
had missed a sufficient period of work to
make the case meritorious. Respondent
states that he did not file the Application
for Hearing that was signed earlier by the
woman because the claim could not be
supported. Respondent did not bill the
woman for the case.
The woman alleges that she had no idea
that Respondent had decided not to pursue
her case. Respondent did not communicate
his conclusion to the woman in writing. The
woman alleges that Respondent did not
communicate with her for four years
regarding her workers compensation claim.
Respondent does not claim to have
personally communicated his conclusion to
the woman in any conversations. Respondent
asserts, however, that two of his former
employees orally told the woman that
Respondent would not be pursuing her claim.
There is nothing in the file to document any
conversations between the woman and the
former employees. The woman denies having
such conversations with Respondent’s
employees.
Notwithstanding Respondent’s statement
that he had concluded that the woman had no
claim late in 1997, Respondent wrote to the
woman’s former employer on December 28, 1998
and requested information on the woman’s
employment. Also on December 28, 1998,
Respondent wrote to the health care
providers and requested copies of medical
records and information on the outstanding
balances of the woman’s accounts. There is
nothing in Respondent’s correspondence to
show that the woman was given copies of any
of the cover letters or of any the
information when it was received. The woman
heard nothing from Respondent during this
time period.
The most recent activity in the worker
compensation file occurred on April 8, 1999,
when Respondent wrote to a third party
regarding creditor information. The woman
was unaware of the correspondence or of any
activity in the matter.
When asked why he began working on the
file again in December, 1998, Respondent’s
only explanation was that the woman must
have called and talked to one of his new
staff people, and the new staff person again
sent out authorizations so that they could
reinvestigate the matter. Respondent
asserts that he concluded there was no case
and communicated that to the woman. However,
there is no evidence of such communication
in Respondent’s file. The woman heard
nothing from Respondent during that time
frame.
In October, 2001, a third party involved
in the case incorrectly told the woman that
her worker’s compensation claim had been
settled out of court in June or July, 1997.
The woman allegedly telephoned Respondent
twice after receiving the call, but he
failed to return her calls. The woman
alleges that she had absolutely no contact
with Respondent from late 1997 until she
began attempting to contact him in late
2001. There was nothing in Respondent’s
file to show that he had any contact with
the woman during that time period.
Respondent states that he had contact
with the woman in July, 1999, while he was
representing her daughter in an unrelated
matter. Respondent asserts that the woman
never asked him about the workers
compensation case. Respondent acknowledges
it was probably an error not to have
informed the woman in writing that he was
declining to advance a workers compensation
claim on her behalf.
Respondent assisted the woman in some
other legal matters during 1997-1998. In
1997, Respondent submitted a request for
reconsideration on the woman’s behalf after
she was denied Social Security disability
insurance benefits. Respondent also
provided limited representation to the woman
in a post-divorce child support matter
during the early months of 1998.
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By failing to inform the woman that he had
decided not to pursue a workers compensation
claim on her behalf, Respondent violated SCR
20:1.4(b), which requires a lawyer to
explain a matter to the extent reasonably
necessary to permit the client to make
informed decisions regarding the
representation.
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By failing to notify the woman that he was
not going to pursue the workers compensation
claim on her behalf, Respondent also
violated SCR 20:1.16(d), which provides that
upon termination of representation, a lawyer
shall take steps to the extent reasonably
practicable to protect a client’s interests,
such as giving reasonable notice to the
client.
In accordance with SCR 22.09(3), Attorney
Terrence J. Woods is hereby publicly
reprimanded.
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