|
ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
1 PER CURIAM. We review the
recommendation of the referee that the
license of Attorney Thomas A. Fadner, II to
practice law in Wisconsin be suspended for
nine months for professional misconduct,
and that he be required to pay the costs of
this proceeding. Attorney Fadner's
misconduct involved his billing practices
to the Office of the State Public Defender
(SPD) and mishandling of payments to an
investigator. We determine that the
seriousness of Attorney Fadner's misconduct
warrants the recommended penalty.
|
|
2 Attorney Fadner was licensed to
practice law in Wisconsin in 1996 and
practiced in Oshkosh. He was privately
reprimanded in 1998 for a violation of
supreme court rules.
|
|
3 On July 22, 2004, the Office of
Lawyer Regulation (OLR) filed a complaint
alleging four counts of misconduct against
Attorney Fadner. The complaint stated that
Attorney Fadner was appointed on a number
of SPD matters and in April, May and June
of 2001, the SPD received invoices with
questionable claims for time charges and
photocopying reimbursements. The complaint
also alleged that Attorney Fadner had
engaged an investigator, and on at least
three occasions, when the SPD paid Attorney
Fadner for the investigator fees, he did
not timely deliver the money to the
investigator or deposit the investigator
fees into his trust account.
|
|
4 Cheryl Rosen Weston was appointed
referee. Although Attorney Fadner filed an
answer to the complaint, he did not appear
at scheduling conferences held after the
initial conference, and ultimately, the
referee struck his answer and entered a
default judgment. Attorney Fadner has not
appealed.
5 The referee issued a report on June
15, 2005. The report adopted each
allegation of the complaint, noting a
factual basis existed for its allegations.
The referee found that after the SPD
received questionable billings, it notified
Attorney Fadner it was placing a hold on
termination of parental rights billings
that exceeded $10,000 in a case that did
not go to trial. In a telephone call with
the SPD, Attorney Fadner stated his billing
system had problems, but his photocopying
charges were duly incurred at a business
called KopyKats. The referee found
Attorney Fadner was aware that under SPD
rules, in-house copying charges were not
reimbursable.
6 The referee further found that
KopyKats consisted of one photocopy machine
owned by Attorney Fadner. It was located
in the building where Attorney Fadner had
his law office and for which Attorney
Fadner paid rent out of his law office
budget. KopyKats had no sign indicating it
was open as a separate business, it had no
staff, and it did not advertise. The
referee determined KopyKats was not a
separate business. On his invoices,
however, Attorney Fadner had asked for
reimbursement for third-party copy services
that were actually performed by himself on
his own machine. Additionally, he had
charged sales tax to the SPD, but did not
pay sales tax to the Wisconsin Department
of Revenue during the time in question.
|
|
7 The referee stated that with
respect to the billing irregularities for
time charges, the SPD and Attorney Fadner
reached a settlement agreement. The
referee concluded that Attorney Fadner's
conduct of charging the SPD for in-house
photocopying on a machine he owned and for
charging the SPD sales tax and not timely
remitting sales tax to the Department of
Revenue constituted fraud and deceit
contrary to SCR 20:8.4(c). The referee
also concluded Attorney Fadner violated
former SCR 20:1.15(a) and (b) concerning
the safekeeping of property by taking funds
belonging to the investigator, failing to
deliver them to the investigator and
failing to deposit them in Attorney
Fadner's trust account.
8 The referee noted the complaint did
not identify the amounts of money allegedly
improperly charged for copying, or for
investigator services not timely deposited
or delivered. While this information was
relevant to the seriousness of the
allegations, the referee concluded Attorney
Fadner had foregone the opportunity to
provide facts to mitigate the complaint's
allegations.
|
|
9 The referee also observed that in
support of its request for the sanction of
a license suspension of nine months, the
OLR submitted evidence of a previous
private reprimand issued in June of 1998
for a rule violation. Given that previous
discipline had been imposed, and that the
sanction recommended by the OLR was
consistent with discipline imposed against
other attorneys for similar conduct, the
referee concluded that a nine-month license
suspension was appropriate. See In
re Disciplinary Proceedings Against
Davison, 2002 WI 24, 251 Wis. 2d 1, 640
N.W.2d 508 (agreed upon six-month
suspension for numerous parking expense
billings not actually incurred). The
referee also required Attorney Fadner to
pay the costs associated with the
proceeding. The OLR reported costs of
$1411.88 as of July 6, 2005.
|
|
10 We adopt the referee's findings of
fact and conclusions of law. In reviewing
a referee's report and recommendation, we
affirm the referee's findings of fact
unless they are clearly erroneous. See
In re Disciplinary Proceedings Against
Carroll, 2001 WI 130, ¶29, 248 Wis. 2d
662, 636 N.W.2d 718. We review the
referee's conclusions of law de novo.
Id.
11 We observe that the disciplinary
process is designed "for the protection of
the public, the courts and the legal
profession." In re Disciplinary
Proceedings Against Harman, 137 Wis. 2d
148, 150-51, 403 N.W.2d 459 (1987). "It is
not the purpose of lawyer discipline to
make whole those harmed by attorney
misconduct, although restitution is one of
the stated requirements for reinstatement
of a suspended or revoked license."
Id. at
151. Thus, while the referee's
recommendation of nine months suspension of
Attorney Fadner's law license and payment
of costs does not include the requirement
of restitution, we are satisfied the
recommendation is an appropriate discipline
for his violation of supreme court rules.
12 IT IS ORDERED that the license of
Attorney Thomas A. Fadner, II to practice
law in Wisconsin is suspended for nine
months, effective March 30, 2006, and until
further order of this court.
13 IT IS FURTHER ORDERED that within
60 days of the date of this order Attorney
Thomas A. Fadner, II 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 his
inability to pay the costs within that
time, the license of Attorney Thomas A.
Fadner, II to practice law in Wisconsin
shall remain suspended until further order
of this court.
14 IT IS FURTHER ORDERED that Attorney
Thomas A. Fadner, II comply with the
provisions of SCR 22.26 concerning the
duties of a person whose license to
practice law in Wisconsin has been
suspended.
|