|
ATTORNEY disciplinary proceeding.
Attorney publicly reprimanded.
1 PER CURIAM. We review the findings
of fact, conclusions of law and
recommendation of referee Judith Sperling-
Newton recommending that Attorney Gary A.
Miller be publicly reprimanded for failing
to disburse funds being held in his trust
account after the trial court had ordered
the funds to be granted to his client's ex-
wife in a divorce property settlement.
2 We conclude that the referee's
findings of fact are supported by
satisfactory and convincing evidence. We
also agree with the referee's conclusions of
law, and we agree that the appropriate
discipline for the misconduct is a public
reprimand. In addition, we conclude that
the costs of the proceeding, which are
$5486.86, as of July 21, 2005, should be
assessed against Attorney Miller.
|
|
3 Attorney Miller was admitted to
practice law in Wisconsin in 1970 and
practices in Madison. In 1995 he received a
private reprimand for misconduct consisting
of misrepresenting he had an attorney's lien
as security for his fee in a personal injury
matter and failing to promptly deliver his
client's file materials to successor
counsel.
|
|
4 In August 2004 the Office of Lawyer
Regulation (OLR) filed a complaint alleging
three counts of misconduct involving two
clients. After conducting discovery the OLR
withdrew one of the counts. The remaining
two counts of the complaint involved
Attorney Miller's representation of D.E. in
a divorce action filed by D.E.'s wife, J.E.
Attorney Miller spends about half of his
professional time on family law-related
matters and has handled between 500 and 700
divorce cases, 100 to 150 of which were
contested.
5 At the time D.E. retained Attorney
Miller, D.E. was represented by another
lawyer in a personal injury case. D.E.
signed a written retainer agreement with
Attorney Miller indicating that Attorney
Miller would have a lien on the proceeds of
any settlement coming out of the personal
injury action for payment of his attorney's
fees.
6 On October 29, 1999, D.E.'s personal
injury attorney forwarded $24,000,
representing the settlement in the personal
injury case, to Attorney Miller. The check
was made payable to both D.E. and J.E. Upon
receipt of the check, Attorney Miller
notified J.E.'s attorney, Walter Stewart,
and requested that J.E. sign a release.
Attorney Miller informed Attorney Stewart
that he would deposit the check into his
trust account and that the parties would
attempt to resolve all of the remaining
issues in the divorce matter. Both D.E. and
J.E. endorsed the check and Attorney Miller
deposited it into his trust account on
December 1, 1999. At the time Attorney
Miller gave notice to Attorney Stewart and
deposited the funds into his trust account,
a temporary order was in effect in the
divorce action.
7 A trial of the divorce case was
scheduled for July 18, 2000, before Judge
Gerald Nichol. Prior to trial the parties
tried, but were unable, to resolve three
issues: (1) how the marital property should
be divided; (2) how the substantial marital
debts should be allocated; and (3) whether
J.E. was entitled to any money from the
$24,000 personal injury settlement. At the
trial, Judge Nichol found there was a loss
of taxable income to D.E. and J.E. as a
result of the personal injury and that J.E.
was entitled to $7329 of the personal injury
settlement. The court made the following
statement to Attorney Miller:
So, I'm saying she [J.E.] gets what's in
[Stewart's] trust account, he gets what's in
the tax refund of 3,600 totally his,
whatever the difference, which is like $114,
if you're going [to] equally divide them,
I'm applying toward attorneys fees and then
I'm awarding out of your trust account the
73 and he gets the 13 or whatever it is.
Attorney Miller replied, "Okay. All right."
8 After the trial, Attorney Stewart
drafted proposed findings of fact,
conclusions of law and a judgment of
divorce, which were signed by the court on
February 6, 2001. The judgment awarded J.E.
a "cash settlement payment of $7,329
representing a lost income portion of the
March 10, 1998 traffic accident." The
judgment did not specifically state that the
money should come from Attorney Miller's
trust account, but the funds from the
settlement check remained in his trust
account.
9 From the time of the July 2000
divorce trial until March 16, 2001, Attorney
Miller's trust account balance attributable
to D.E. was $8089. On March 16, 2001,
Attorney Miller withdrew $760 from his trust
account for attorney's fees, leaving $7329
in trust attributable to D.E., which was the
amount awarded to J.E. in the divorce
judgment.
10 On March 19, 2001, D.E. requested
the balance of the amount in Attorney
Miller's trust account. On March 30, 2001,
despite an order from the circuit court
awarding J.E. the $7329 remaining in the
trust account, Attorney Miller paid D.E.
$4929.99 and paid the balance of his
attorney's fees in the amount of $2400,
leaving a zero balance in the trust account
attributable to D.E.
11 Attorney Stewart sent several
letters to Attorney Miller requesting that
he forward to J.E. the $7329 which he was
supposed to be holding in his trust
account. Attorney Miller did not object to
complying with that request until May 4,
2001, when he wrote to Attorney Stewart
saying Attorney Stewart had overstated or
misstated what was required by the judgment
of divorce and that J.E. had been awarded
only a money judgment. Attorney Miller told
Attorney Stewart that D.E. had requested the
funds in the trust account and, without an
order requiring him to hold the funds,
Attorney Miller said he was required to
comply with his client's request. Attorney
Miller informed Attorney Stewart that
it "made better practical sense to file
bankruptcy, which would include [J.E.'s]
money judgment and [Attorney Stewart's]
claims for attorney fees."
12 On April 1, 2002, Attorney Stewart
filed a motion on J.E.'s behalf to find
Attorney Miller in contempt of court. The
family court commissioner denied the motion,
and J.E. appealed. Judge Nichol reviewed
the family court commissioner's decision de
novo and in October 2002 issued a written
decision finding Attorney Miller in contempt
of court and ordered him to pay J.E. $7329,
plus interest from March 30, 2001, and to
reimburse her for her attorney's fees and
costs within 30 days of the decision. On
October 26, 2002, Attorney Miller paid J.E.
the amount initially ordered by Judge
Nichol, plus interest. Attorney Miller then
appealed Judge Nichol's decision to the
court of appeals and on September 25, 2003,
the court of appeals affirmed.
|
|
13 Referee Sperling-Newton held a
hearing in February 2005 and she issued her
decision on June 20, 2005. The OLR's
complaint alleged and the referee agreed
that by failing to disburse to J.E. the
$7329 that was being held in Attorney
Miller's trust account pending the outcome
of the divorce proceeding, which funds the
trial court had ordered to be granted to
J.E. in the divorce property settlement,
Attorney Miller violated former SCR 20:1.15
(a).
|
|
14 The OLR's complaint also alleged and
the referee agreed that by failing to comply
with the trial court's order to disburse to
J.E. $7329 of the proceeds from a personal
injury settlement held in Attorney Miller's
trust account and instead dispersing such
funds to himself and his client, Attorney
Miller violated SCR 20:3.4(c).
|
|
15 In discussing the appropriate
discipline to be imposed for the misconduct,
the referee said that aggravating factors in
the case were Attorney Miller's prior
disciplinary record consisting of a private
reprimand and the nearly three year delay in
making restitution to J.E. The referee said
a mitigating factor was the fact that
Attorney Miller did eventually make
restitution to J.E., although he did so
three years after the funds were disbursed
from his trust account.
|
|
16 A referee's findings of fact are to
be affirmed unless they are clearly
erroneous. See In re Disciplinary
Proceedings Against Sosnay, 209 Wis. 2d
241, 243, 562 N.W.2d 137 (1997).
Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings
Against Carroll, 2001 WI 130, par. 29, 248
Wis. 2d 662, 636 N.W.2d 718. The record
supports the referee's findings of fact and
conclusions of law and we adopt them.
17 We also agree with the referee's
recommendation that a public reprimand is an
appropriate level of discipline to impose
for the misconduct at issue in this case.
18 IT IS ORDERED that Attorney Gary A.
Miller is publicly reprimanded for his
professional misconduct.
19 IT IS FURTHER ORDERED that within 60
days of the date of this order, Attorney
Gary A. Miller pay to the Office of Lawyer
Regulation the costs of this proceeding,
provided that if the costs are not paid
within the time specified and absent a
showing to this court of an inability to pay
those costs within that time, the license of
Attorney Gary A. Miller to practice law in
Wisconsin shall be suspended until further
order of the court.
|