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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
1 PER CURIAM. We review a report and
recommendation filed by referee Rose Marie
Baron on March 25, 2005, recommending that
Attorney Michael J. Backes receive a public
reprimand for professional misconduct
committed in the course of his
representation of F.M. in a postconviction
criminal proceeding.
2 Having independently reviewed the
record we affirm the referee's factual
findings, agree with her conclusion that
Attorney Backes' conduct violated SCR §§
20:1.3 and 20:8.4, and agree that a public
reprimand is appropriate discipline for this
misconduct. We further agree that
notwithstanding Attorney Backes' objection,
he should be required to pay the costs of
the Office of Lawyer Regulation (OLR)
proceeding, which total $2163.10 as of June
2005.
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3 Attorney Backes was admitted to
practice in Wisconsin in 1986, following a
career in real estate. He was publicly
reprimanded in 2005 for nine counts of
misconduct committed in connection with
three client matters. See In re
Disciplinary Proceedings Against Backes,
2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49.
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4 The OLR filed this complaint against
Attorney Backes on August 9, 2004, alleging
two counts of misconduct allegedly committed
in the course of Attorney Backes'
representation of F.M. in a criminal
postconviction matter. Attorney Backes
admitted the majority of the factual
allegations set forth in the complaint and
the matter proceeded to a hearing before the
referee on February 21, 2005, with the
parties agreeing that the matter should be
considered on submitted briefs and
documents.
5 As the OLR complaint alleged, and
the referee subsequently found, on July 1,
1998, F.M. was charged with one count of
armed robbery and ultimately sentenced to 32
years in prison. His conviction was
summarily affirmed. In April 2001 F.M.
contacted Attorney Backes inquiring about
the cost of postconviction representation.
6 On April 19, 2001, Attorney Backes
notified F.M. in writing that his fee was
$2500, half of which was due upon retainer
and the balance due approximately 30 days
later. He stated that his representation
would begin upon payment of the initial
amount and that after review of relevant
documents he would schedule a visit. In
late June 2001 F.M.'s acquaintance, H.B.,
delivered the $2500 retainer to Attorney
Backes on F.M.'s behalf.
7 Stated simply, Attorney Backes
essentially took no action on F.M.'s case.
Three times in early November 2001 F.M.
wrote to Attorney Backes asking for a refund
of his fee and for his file because nothing
had been done on the matter. Attorney
Backes responded in writing, claiming that
he had reviewed the case. Attorney Backes
did not terminate the representation, but
instead scheduled a prison visit with F.M.
that occurred on or about November 16, 2001.
8 In January 2002 F.M. wrote to
Attorney Backes again, seeking an update on
the status of his case. Attorney Backes did
not respond. F.M. wrote to Attorney Backes
again on February 14 and 17, 2002. Attorney
Backes wrote to F.M. on or about February
22, 2002, but did not respond specifically
to F.M.'s earlier inquiries. Rather, he
stated that he would inform F.M. about the
status of the case "shortly" and asked him
to "hang in there until I get back to you so
we know where we are at."
9 On May 12, 2002, F.M. requested a
copy of the document to be filed on his
behalf, and asked Attorney Backes to "stop
dragging me along." On May 14, 2002,
Attorney Backes wrote to F.M. and informed
him that the matter would be proceeding.
10 On August 11, 2002, F.M. again
sought a status update. Attorney Backes
responded on August 28, 2002, explaining
that he had been involved in a trial and
other matters but that he should be able to
move forward with F.M.'s case in the near
future.
11 On October 9, 2002, F.M. requested a
refund of the fees he had paid and directed
Attorney Backes to stop work on his file.
On November 5, 2002, Attorney Backes
responded that he had completed his work on
F.M.'s case, and that he would be in touch
shortly. On November 18, 2002, Attorney
Backes wrote to F.M. again, advising him
that he would file a petition for writ of
habeas corpus in the court of appeals
pursuant to State v. Knight, 168 Wis. 2d
509, 484 N.W.2d 540 (1992) (a "Knight
petition") adding: "I have prepared that
petition for filing."
12 After the grievance in this matter
was filed, representatives from the OLR
requested a copy of this Knight
petition.
Attorney Backes then stated that "[t]here
was no 'final typing' of a Knight
petition,
but rather an initial basis for a Knight
was
known, although I had hoped it would be
expanded upon." Attorney Backes later
stated to investigators that "[t]he final
petition was not drafted or forwarded to
[F.M.] because of difficulties which then
took place as to a refund of legal fees, and
it appeared that, in fact, the professional
relationship with [F.M.] was, in fact, at an
end."
13 In November 2002 F.M. filed a pro se
motion for postconviction relief. On
December 13, 2002, he filed a pro se motion
for reconsideration. Both were denied.
14 On November 22, 2002, Attorney
Backes wrote to F.M. after a telephone
conversation the previous day, saying he
would send F.M.'s file and a partial refund
of the legal fee. Attorney Backes did
return F.M.'s file on November 27, 2002. On
December 2, 2002, Attorney Backes advised
F.M. in writing that because a third party
had paid the initial retainer, Attorney
Backes had to return any fees to that third
party. He explained that his written
attempt to reach H.B. had been returned to
sender with no forwarding address.
15 On December 18, 2002, F.M. wrote to
Attorney Backes, again requesting the refund
and stating that he did not know H.B.'s
whereabouts. On December 30, 2002, Attorney
Backes consulted with the State Bar Ethics
Committee seeking guidance on how to handle
the refund.
16 On March 3, 2003, F.M., who had
still not received any refund, sent Attorney
Backes a letter stating that he wanted to
reinstate Attorney Backes as his attorney
and asked him to file the Knight
petition.
On May 9, 2003, F.M. sent Attorney Backes
yet another letter, this time demanding
return of the fee and a copy of the
Knight
petition so he could file it himself. F.M.
filed a grievance against Attorney Backes
with the OLR on May 22, 2003.
17 On June 3, 2003, Attorney Backes
wrote to F.M. asking him to have H.B.
contact him claiming that he
was "proceeding" and would get back to him.
On June 11, 2003, Attorney Backes wrote to
F.M. again, this time addressing the merits
of the case. On June 18, 2003, F.M.
responded asking again that his file and fee
be returned to him. On July 2, 2003,
Attorney Backes responded reiterating that
he had been retained by H.B. and remained
unable to locate him.
18 Attorney Backes submitted his
response to F.M.'s grievance on September
25, 2003. He explained the length of time
it took him to address F.M.'s case, as
follows:
I have reviewed [F.M.'s] case and
initially identified problems that existed.
I did not bring the matter forward, at that
time, in that I felt there were problems
with it, and I, as is my practice, set the
matter aside and intended to re-review it
further. The term 'progressing' is a
process which I have found has generated
results in previous matters, that is when
there is no immediate and clear path of
action in which I have confidence.
I had previously explained to [F.M.] that
this process is such that there is no
guarantee of a result, but, certainly, I
will review and re-review matters, a process
which, on occasion, involves general
brainstorming with other [attorneys],
seminars, etc., which sometimes generates
further ideas.
I believe that this process is best and
that is why the time involved sometimes,
depending on other caseload, does extend
into a lengthy period of time.
I believe that, in my communications with
[F.M.], both verbal and written, the process
was explained and that he would need to be
patient, given his sentence, given his
situation, and given the facts that pertain
to his case. I would represent that, if
there was clear error which was overlooked
by appellate counsel, that matter would have
then been brought forward at that time.
19 On October 8, 2003, F.M. sent both
the OLR and Attorney Backes copies of a
Knight petition that he had filed, pro
se,
with the Wisconsin Court of Appeals. F.M.
suggested resolving his fee dispute with
Attorney Backes by having Backes commit to
helping him with further action if his pro
se filing was denied. F.M. stated that he
believed that Attorney Backes had not earned
the $2500 he had been paid.
20 On October 21, 2003, Attorney Backes
informed the OLR that he had sent F.M.
copies of Rothering v. McCaughtry, 205
Wis.
2d 675, 556 N.W.2d 136 (Ct. App. 1996), a
court of appeals' decision, together with
references to transcripts. He indicated
that he was prepared to intervene at this
point should F.M. desire his assistance. On
the same date, October 21, 2003, F.M. wrote
to the OLR expressing his desire for a
refund of the $2500 fee he paid Attorney
Backes.
21 On November 6, 2003, F.M. wrote to
Attorney Backes informing him that the
Wisconsin Court of Appeals had denied his
pro se appeal and asked for assistance or a
return of the $2500 fee. On November 10,
2003, Attorney Backes wrote to F.M. stating
that F.M. had no legitimate grounds to seek
review in the Wisconsin Supreme Court, and
stating that he had earned the $2500 fee.
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22 The disciplinary complaint filed
against Attorney Backes alleged that
Attorney Backes violated SCR 20:1.3, which
provides that "[a] lawyer shall act with
reasonable diligence and promptness in
representing a client." Initially, Attorney
Backes challenged this allegation, asserting
that he had conducted himself in a
professional and proper manner in all
respects.
23 The referee disagreed. As she
observed, F.M. first contacted Attorney
Backes in April 2001. In June, Attorney
Backes received $2500 to conduct a
postconviction review of F.M.'s case.
Attorney Backes continued to represent F.M.
despite a November 2001 letter, seeking to
terminate the representation. In September
2002 F.M. again attempted to terminate
Attorney Backes' representation and
requested a refund of fees paid. At that
time, Attorney Backes informed F.M. that he
had completed the work on his case and would
be contacting him shortly. Attorney Backes
then told F.M. he would be filing a
Knight petition and stated further that
he had prepared the petition for filing.
The referee found that this was untrue.
F.M. eventually had to file his petition pro
se.
24 At the disciplinary hearing
conducted on this matter, Attorney Backes
acknowledged that "too much time went past"
but he sought to explain this, as follows:
[F.M.] is a very abrasive person sitting
on a 32 year prison sentence. It's not, I
mean, there was a desire on my part to earn
my fee and he had pled guilty and was
expecting a prison sentence of something
under ten years. So I mean, it[']s not like
this is something here with an immediate
fire underneath it, that he’s being held in
prison and if it wasn’t for this he would be
released. I mean, he was just sentenced to
a longer prison sentence as compared to a
long prison sentence for a very serious
crime and certainly had there been a mistake
that he was convicted at trial and that this
mistake would grant him a new trial or
whatever, that puts things in a different
light and he understood that. You know, he
understood that he was facing this time.
So I take some exception in viewing
that differently than one where you have
some immediate action that is going to
result in some dramatic change or releasing
a man from prison or something of that
kind. This was not the case here.
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25 In considering this matter the
referee acknowledged Attorney Backes'
testimony that F.M. was a difficult client.
However, the referee agreed with counsel for
the OLR who noted that "once you agree to
represent someone and accept the fee, you
assume all the responsibilities toward that
client set forth in the Supreme Court
rules." The referee was not persuaded by
the reasons that Attorney Backes proffered
for needing to review and re-review F.M.'s
case file and ultimately concluded that
Attorney Backes' timetable and strategies
were "inappropriate" and did not "reflect
reasonable diligence and promptness in
representing a client." Thus, the referee
concluded that Attorney Backes violated SCR
20:1.3. Based on our own review of this
record we agree with this conclusion.
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26 The complaint also alleged, and the
referee concluded that Attorney Backes
violated SCR 20:8.4(c), which provides that
it is professional misconduct for a lawyer
to "engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."
Specifically, the OLR complaint alleged
that "[o]n November 18, 2002, Backes wrote
to [F.M.], 'I have firmly reached the
conclusion that the only course of action
available to you is a Knight petition,
and I
have prepared that petition for filing.'"
Later, when asked to produce this draft,
Attorney Backes stated:
There was no 'final typing' of a
Knight
petition, but rather an initial basis for a
Knight was known, although I had hoped
it
would be expanded upon.
. . . .
The final petition was not drafted or
forwarded to [F.M.] because of difficulties
which then took place as to a refund of
legal fees, and it appeared that, in fact,
the professional relationship with [F.M.]
was, in fact, at an end.
Attorney Backes disagreed that this incident
constituted a violation of SCR 20:8.4(c),
explaining:
In my view the [Knight] petition was
completed. I mean, you know, I had all the
facts together. I mean, it's all there, I
got it all down. And the term filing is
just a term that I used in the letter to
[F.M.] that I certainly wish I had not
because it implies like taking it getting
the file stamp. But that was not my intent
to portray that. So that was a mistake in
terminology I think more than anything.
There was going back and forth on this but
there was problems with it. I did believe
that it would fail. If there was going to
be anything that could succeed it would be
the Knight petition.
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27 The referee stated that she could
not reconcile Attorney Backes' explanations
to the OLR stating that "[t]here was
no 'final typing' of a Knight petition"
and his explanation that "[t]he final
petition was not drafted or forwarded to
[F.M.] because of problems with a refund of
fees" and Attorney Backes' testimony at the
hearing, cited above. She thus concluded
that Attorney Backes had misrepresented the
status of the Knight petition to his
client, thereby engaging in conduct
involving dishonesty, deceit, and
misrepresentation in violation of SCR 20:8.4
(c). We agree that the record supports this
conclusion of law.
28 We consider the appropriate
discipline for Attorney Backes' misconduct.
The referee recommended Attorney Backes
receive a public reprimand, together with an
order to pay the costs of this proceeding.
We agree that a public reprimand is
appropriate discipline for Attorney Backes'
misconduct in this matter. We further agree
that he should be required to pay the costs
of this proceeding.
29 IT IS ORDERED that Attorney Michael
J. Backes is publicly reprimanded for
professional misconduct.
30 IT IS FURTHER ORDERED that within 60
days of the date of this order Attorney
Michael J. Backes pay to the Office of
Lawyer Regulation the costs of this
proceeding. If the costs are not paid within
the time specified and absent a showing to
this court of his inability to pay the costs
within that time, the license of Attorney
Michael J. Backes to practice law in
Wisconsin shall be suspended until further
order of the court.
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