By failing to timely file Wisconsin income tax returns for the years 1994 through 2000, Gwin violated SCR 20:8.4(f), which states, in relevant part, “It is professional misconduct for a lawyer to…violate a…supreme court decision regulating the conduct of lawyers…” Supreme Court decisions with application in the matter of Gwin’s failure to timely file State income tax returns for the years 1994 through 2000 include: Disciplinary Proceedings Against Haley, 136 Wis. 2d 87, 401 N.W.2d 169 (1987); and State v. Roggensack, 19 Wis. 2d 38, 119 N.W.2d 412 (1963). In Haley, the respondent attorney was disciplined for having failed to timely file Wisconsin individual income tax returns for eight years. The respondent’s late filing was not intended to avoid the payment of taxes. In imposing discipline in the Haley case, the Court stated that the respondent had violated the standard of conduct established in State v. Roggensack. In Roggensack, an attorney was disciplined for having failed to file State income tax returns for two years. The Court deemed the “intentional violation of tax laws, even though without intent to defraud the government,” as constituting professional misconduct. In Roggensack, the intent to not file tax returns was established by the respondent attorney having been repeatedly notified by the then Wisconsin Department of Taxation that he was required to file.

In the separate client matter, a husband and wife (clients) retained Gwin on January 22, 1999 to represent them as plaintiffs in a pending small claims action against their former landlord. The retainer agreement signed by the clients provided that they would pay Gwin for his time at the rate of $145.00 per hour, but did not require the clients to make an advance payment. However, on September 22, 1999, the clients made a partial payment of $1200.00 toward Gwin’s fees in the small claims matter. The matter concluded with a negotiated settlement by which the defendant and her insurance carrier agreed to pay Gwin’s clients $3000.00 in exchange for a release of claims. The clients signed a Release of All Claims on December 29, 2000. On January 8, 2001, Gwin received two checks from the defendant’s attorney, one from defendant’s insurance carrier in the amount of $1800.00 and one from the defendant in the amount of $1200.00. Defendant’s attorney asked that Gwin not deposit the checks in his trust account until Gwin received a copy of the signed dismissal order from the court. Gwin received a copy of the dismissal order on January 17, 2001 and deposited the two checks in his trust account on that date.

Gwin did not provide written notice to his clients that the settlement checks had been received and placed in his trust account. Sometime in January or February 2001, the clients learned, through a conversation with Gwin’s staff, that Gwin had received the settlement monies. The exact date of this conversation is unknown. Gwin did not transfer the funds to his clients at that time.

Subsequent to retaining Gwin in the small claims matter, the clients hired Gwin to represent them in two other matters, both involving disputes with neighbors. In the first matter, the clients’ initial consultation with Gwin occurred on May 3, 1999. On September 22, 1999, the clients made a partial payment of $706.24 to Gwin for his work on the matter. The dispute was ultimately resolved through negotiation, and Gwin’s work on the matter ended on February 14, 2001. The second matter involved a civil suit brought by a different neighbor against Gwin’s clients, which was filed on May 12, 2000. Gwin’s representation of his clients in this matter began in October 1999, and Gwin entered his appearance in the court case on May 26, 2000. The case was settled by stipulation, and an order of dismissal was entered on December 12, 2000.

Gwin’s work on all three of his clients’ files concluded at about the same time. Gwin last worked on the first neighbor dispute matter on February 14, 2001; the dismissal order in the second neighbor dispute case was entered on December 12, 2000; and the small claims matter concluded when Gwin placed the settlement monies in his trust account on January 17, 2001.

According to Gwin, the clients agreed that the balance due for fees in all three matters would be subtracted from the settlement monies received in the small claims matter. In his written response to the grievance, Gwin stated:

In responding to the grievance, Gwin stated that in February 2001, he learned of a significant adverse health development, namely cancer, which was addressed by surgery in June 2001, after which he did not return full-time to his office for approximately two and a half months. Additional procedures related to his health continued, and there was an additional surgery in March 2002.

In a September 16, 2002 submission to the Office of Lawyer Regulation, one of the clients, the wife, stated that she did not contact Gwin for a while because she knew he was ill, but that “…once I saw one year had gone by and he was working, I started making numerous phone calls asking about the money.” In a December 26, 2002 submission to the Office of Lawyer Regulation, Gwin stated that he received a phone message from the wife on November 29, 2001, to which he responded on December 5, 2001. Gwin stated that his December 5, 2001 response acknowledged Grievant’s phone message and indicated that he would try to get all of their files billed out the following week. Gwin stated that the only letter he received from the wife was dated January 23, 2002, but he acknowledged that, shortly thereafter, the wife stopped by his office just as he was leaving and “…we discussed the matter on the sidewalk…”

On March 24, 2002, the husband sent an email to Gwin in which he asked Gwin to finalize their various invoices and determine how much money he and his wife were due or how much they owed Gwin. Gwin acknowledged that he received the email, but stated that he did not receive it “right away” because his final surgery was on March 22, 2002.

On May 22, 2002, the husband faxed a letter to Gwin, which Gwin admitted receiving. In the letter, the husband stated that “closing the books on these matters is long overdue” and requested that Gwin:

Subsequently, on May 26, 2002, the wife filed a grievance. In his written response to the grievance, Gwin stated that since his clients no longer wanted to wait to receive the small claims settlement monies until Gwin’s “billing paperwork” was completed, he would forward the settlement proceeds to them. By letter dated August 26, 2002, Gwin sent the clients a check drawn on his trust account in the amount of $3,000.00. In the letter, Gwin stated, “I will complete the billings on all three matters and provide the same to you.”

In a September 16, 2002 submission to the Office of Lawyer Regulation, a copy of which was provided to Gwin, the wife asked that Gwin return all their files to them. By letter dated September 18, 2002, Office of Lawyer Regulation staff asked Gwin to note that the wife had requested a return of her files.

By letter dated November 12, 2002, Office of Lawyer Regulation staff requested a supplemental response from Gwin, to include, among other things, a statement regarding whether Gwin had returned the clients’ files to them.

By failing to notify his clients in writing that he had received the small claims settlement monies, by failing for over eighteen months to deliver to the clients the portion of the settlement proceeds to which they were entitled, and by failing to provide the clients with an accounting, despite their requests that he do so, Gwin violated SCR 20:1.15(b), which states:

In 1992, Gwin was publicly reprimanded, with his consent, by the Board of Attorneys Professional Responsibility (the predecessor agency to the Office of Lawyer Regulation) for misconduct in two separate client matters, and for failing to timely file income tax returns for tax years 1988 and 1989.