Public Reprimand of Jeffrey D. Berlin (Printable Version)

Public Reprimand of Jeffrey D. Berlin

2005-4

Attorney Jeffrey D. Berlin (Berlin), 53, of Grafton, was the subject of three grievance investigations, which resulted in findings of professional misconduct. On the basis of the misconduct in these three matters, summarized below, OLR sought and Berlin consented to a public reprimand.

GRIEVANCE ONE

In the first matter, a man, D.J., appeared pro se before a court commissioner on February 24, 2003 regarding his ex-wife’s motion for modification of child support. During the hearing, the commissioner incorrectly calculated the child support to be paid by D.J. D.J. alerted the commissioner to the error immediately after the hearing, at which time the commissioner told him that he had ten days to file an appeal of her decision in order to correct the error in the support calculation. On February 24, 2003, D.J. retained Berlin to file a motion to appeal the commissioner’s calculation of support and paid Berlin a flat fee of $750 to institute the action.

On or about March 7, 2003, Berlin filed a motion for a de novo appeal of the commissioner’s decision. A hearing regarding the motion was scheduled for March 28, 2003. On March 27, 2003, during a telephone conversation between Berlin and counsel for D.J.’s former wife, an oral agreement was reached to resolve the matter without a hearing. The court was notified that an agreement had been reached regarding the dispute and that a stipulation was being circulated.

On March 27, 2003, Berlin advised D.J. by telephone that he had worked out an agreement regarding the support and would have something drawn up and sent to D.J. in a couple of weeks. D.J. waited 3 or 4 weeks and, when he had not received the stipulation from Berlin; he then tried to contact Berlin by telephone. D.J. called Berlin’s office six or seven times every week for the next four months, often leaving messages for Berlin regarding the status of the stipulation, without receiving any response from Berlin.

In June 2003, D.J. took off work and went to Berlin’s office because he had not received a telephone call from Berlin in response to his many messages, nor had he received the stipulation. D.J. found Berlin’s office had been cleaned out, and Berlin had not left any forwarding address. D.J. attempted to find Berlin by contacting the clerk’s office but was unable to locate Berlin. Thereafter, D.J. continued to leave regular messages on Berlin’s voicemail regarding the stipulation without receiving a return call. Finally, sometime during the summer of 2003, D.J. had a friend call Berlin’s telephone number and leave a message stating that he needed a divorce attorney. Berlin returned the message from the friend right away, at which time the friend informed Berlin that D.J. was trying to reach him. Thereafter, D.J. left several more telephone messages for Berlin. Finally, Berlin contacted D.J. and scheduled a meeting at a restaurant. D.J. met with Berlin at which time Berlin advised D.J. that he would draft the stipulation and circulate it shortly.

Following the meeting, D.J. continued to telephone Berlin regarding the stipulation, but did not receive a return call or the stipulation. On or about August 8, 2003, D.J. hired another attorney to handle the matter. On or about December 24, 2003, the court entered a stipulated order prepared by D.J.’s successor attorney resolving the matter.

While Berlin did meet with D.J., draft and file the motion to appeal the commissioner’s calculation of support, and spoke with counsel for D.J.’s former wife and D.J. on March 27, 2003, he failed to draft and circulate the stipulation. Berlin took no action with regard to D.J.’s case following the March 27, 2003 telephone calls with counsel for D.J.’s former wife and D.J. Therefore, after more than four months had passed without Berlin drafting and circulating the stipulation, D.J. was forced to hire successor counsel to draft and file the stipulation to obtain the modification in the support award. Therefore, because Berlin failed to achieve the objective for which he was hired, which required only the drafting and circulation of an agreed upon stipulation, and because Berlin has advised staff that his hourly rate was $150 per hour, Berlin has not earned the full $750 paid to him by D.J. to obtain the support modification. Berlin has not refunded any of the $750 fee paid by D.J.

By failing to diligently pursue D.J.’s interests in obtaining a correction in child support between February 24, 2003 and August 2003, Berlin violated SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client.

By failing to keep D.J. reasonably informed regarding the status of the case and by failing to respond to D.J.’s reasonable requests for information regarding the status of the case, Berlin violated SCR 20:1.4(a), which requires that an attorney keep a client reasonably informed about the status of the client’s matter and promptly comply with reasonable requests for information from the client.

By failing to timely refund the unearned portion of the $750 fee paid by D.J., Berlin violated SCR 20:1.16(d), which states that upon termination of representation, a lawyer shall refund any advance payment of fee that has not been earned.

GRIEVANCE TWO

On September 20, 2001, an entity (the “Landlord”) obtained a default judgment against a man, K.M., for eviction and damages in Milwaukee County. On or about September 25, 2001, K.M. hired Berlin to file a motion to reopen the default judgment for eviction and paid Berlin a flat fee of $350 to institute the action. Berlin was successful in having the order of eviction rescinded and obtained an award in favor of K.M. for $500 in damages plus costs and statutory attorneys fees.

On or about October 12, 2001, following the successful eviction award, K.M. retained Berlin to pursue a fraud claim against the Landlord or its owners and paid Berlin $2,000 to begin representation on the fraud claim. Berlin deposited the $2,000 in his business account. K.M. advised OLR that he spoke with Berlin on numerous occasions between October 2001 and March 2002 regarding the status of the fraud claim and that Berlin repeatedly advised him that he would “get a court date” for the fraud claim. However, no fraud claim was ever filed with the court and Berlin took little to no action on K.M.’s claim between October 2001 and March 2002.

Sometime after March 26, 2002, both Berlin and K.M. believed that the owner of Landlord had filed for bankruptcy. Based on his belief that the owners of the Landlord had filed for bankruptcy, Berlin took no further action with regard to the fraud claim after March 26, 2002. However, K.M. stated that Berlin advised him “he should wait and that [Berlin] would have to investigate further and [Berlin would] get back to [him].” Up until Berlin informed him in June 2003 that he could no longer represent him, K.M. had the expectation that Berlin continued to represent him in the fraud claim and continued to investigate the matter. Additionally, K.M. left numerous telephone messages for Berlin during the period between March 26, 2002 and June 2003, regarding the status of the fraud claim and when the claim would be filed. Berlin did not respond to these telephone calls.

Berlin asserted that he spent a minimum of six hours with regard to the fraud case, even though he produced no documentation or time records of the document review and research he has estimated that he performed between October 12, 2001 (the date upon which he was retained with regard to the fraud case), and June 2003 (the date upon which K.M. alleges that Berlin advised him that he could no longer represent him because of his physical and mental condition). However, even if Berlin performed the six hours of work alleged on the fraud case, at his hourly rate of $150 per hour, he earned no more than $900 of the $2,000 paid by K.M.

Berlin did not return K.M.’s file to him until after K.M. filed a grievance with OLR. Additionally, while Berlin had refunded $500 to K.M. from the $2,000 payment during the representations for reasons unrelated to the termination of Berlin’s services, Berlin has not refunded any of the $1,500 balance remaining from the $2,000 retainer paid by K.M.

By failing to diligently pursue K.M.’s interests in filing a claim of fraud against the Landlord or its owners between October 12, 2001 and the date upon which the parties believed that the Landlord or its owners had filed bankruptcy, and by failing to investigate whether the Landlord or its owners obtained a discharge in bankruptcy of any claims K.M. may have had against the Landlord, Berlin violated SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client.

By failing to keep K.M. reasonably informed regarding the status of the case between October 2001 and the date upon which Berlin believed that the Landlord or its owners had filed bankruptcy, and by failing to respond to K.M.’s attempts to contact him by telephone regarding the status of the case between October 2001 and June 2003, Berlin violated SCR 20:1.4(a), which requires that an attorney keep a client reasonably informed about the status of the client’s matter and promptly comply with reasonable requests for information from the client.

By failing to deposit the $2,000 paid by K.M. with regard to the fraud claim in his client trust account, Berlin violated former SCR 20:1.15(a)[effective through June 30, 2004], which required an attorney to hold in trust, separate from his own property, property belonging to clients and third parties and to deposit such funds in one or more identifiable trust accounts.

By failing to account for the allocation and disbursement of the $2,000 paid by K.M. following K.M.’s reasonable requests for an accounting, Berlin violated Former SCR 20:1.15(b)[effective through June 30, 2004], which required that, upon the request of a client, a lawyer shall render a full accounting regarding all funds belonging to the client that were received by the attorney.

By failing to timely turn K.M.’s file over to him and by failing to timely calculate and refund any unearned portion of the advance fee paid by K.M., Berlin violated SCR 20:1.16(d), which states that upon termination of representation, a lawyer shall surrender papers and property to which the client is entitled and refund any advance payment of fee that has not been earned.

GRIEVANCE THREE

In or about April 2001, a man, P.G., hired Berlin to represent him in a Manitowoc County divorce. Berlin filed his notice of appearance with the court on May 9, 2001. Between May 2001 and June 10, 2003, counsel for P.G.’s ex-wife filed three separate Motions to Compel Discovery and one Motion to Enforce an Order Compelling Discovery. Berlin never informed P.G. of any of the Motions to Compel, hearings on the Motions to Compel, or of the resulting orders entered by the Court compelling discovery responses from P.G. On June 10, 2003, the Court entered an Order finding P.G. in contempt of court for failure to comply with discovery orders.

After P.G. had left Berlin numerous telephone messages over many weeks in early summer 2003, Berlin called P.G. and left a message on his voice mail stating that Berlin was no longer able to handle P.G.’s case. P.G. met with successor counsel in late June or early July 2003, and at that meeting successor counsel first advised P.G. of the Contempt Order that had been issued on June 10, 2003, and of the previous Motions to Compel Discovery.

P.G. and successor counsel made numerous telephone calls to Berlin in the month following P.G.’s meeting with successor counsel in an attempt to obtain P.G.’s file from Berlin. After approximately a month without receiving the file, P.G. called Berlin’s wife and explained to her that he had been trying to reach Berlin in order to obtain his file and about the entry of the Contempt Order. The next day Berlin brought P.G. his file.

P.G. made at least one hundred unreturned telephone calls to Berlin’s office between May 2001 and August 2003, first attempting to determine the status of the divorce action and, after meeting with successor counsel, to obtain his file from Berlin. Further, when P.G. did speak with Berlin, Berlin often promised that he would take actions with regard to the divorce that he did not take, and often P.G. would have to call many times to ask for documents or information.

Berlin took little to no action on P.G.’s case between November 2001 and February 2002, during which time P.G.’s ex-wife obtained her first order compelling discovery and filed a Motion to compel enforcement of that order. Berlin did not expend sufficient effort to advance P.G.’s interests with regard to the divorce between February 2002 and April 25, 2002, the date upon which P.G.’s ex-wife obtained her second order compelling discovery. Between April 25, 2002 and August 31, 2002, Berlin did not expend sufficient efforts to advance P.G.’s interests in the divorce. Berlin took little to no action on P.G.’s case between November 1, 2002 and February 11, 2003, the date upon which P.G.’s ex-wife filed a motion for modification of physical placement. Berlin took little to no action on P.G.’s case between March 1, 2003 and June 10, 2003, the period in which P.G.’s ex- wife filed her third Motion to Compel Discovery and obtained an Order finding P.G. in contempt of court for failure to comply with discovery orders.

The failure to meet discovery obligations and delay in bringing P.G.’s matter to trial: (1) caused P.G. to incur additional attorneys fees, in part because of the longer period of litigation, and in part because the files received from Berlin were disorganized and incomplete; (2) Caused P.G. to incur some additional fees as sanction for the discovery violations; (3) Delayed the ultimate entry of divorce by at least a year and a half and as much as two years; and, (4) Caused P.G. to lose strategic advantage in the divorce following his ex- wife’s suicide attempt, which could have resulted in a more favorable custody placement for P.G. had the divorce been brought to trial sooner.

By failing to diligently and promptly pursue P.G.’s interests in the divorce, Berlin violated SCR 20:1.3, which requires an attorney to act with reasonable diligence and promptness in representing a client.

By failing to keep P.G. reasonably informed regarding the status of the divorce, including but not limited to the status of discovery requests and motions, and by failing to respond to P.G.’s reasonable requests for information regarding the status of the divorce, Berlin violated SCR 20:1.4(a), which requires that an attorney keep a client reasonably informed about the status of the client’s matter and promptly comply with reasonable requests for information from the client.

By failing to timely turn P.G.’s file over to him or his successor counsel, Berlin violated SCR 20:1.16(d), which states that upon termination of representation, a lawyer shall surrender papers and property to which the client is entitled.

In accordance with SCR 22.09(3), Attorney Jeffrey D. Berlin is hereby publicly reprimanded.