|
ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report
and recommendation of referee Russell L.
Hanson that Attorney Seth P. Hartigan be
publicly reprimanded following Attorney
Hartigan's default in response to the
complaint filed by the Office of Lawyer
Regulation (OLR). After our review of the
matter, we adopt the referee's findings of
fact and conclusions of law, and hold that
Attorney Hartigan should be publicly
reprimanded and ordered to pay the costs of
this proceeding.
¶2 Attorney Hartigan was admitted to
practice law in Wisconsin in January 1998.
His license to practice law was suspended
for six months by order dated January 19,
2005 for a variety of professional
misconduct, including accepting a laptop
computer in payment of a fee and retaining
it for his personal use without informing
his law firm, failing to protect his
client's interests upon termination of a
representation, and failing to keep a
client reasonably informed as to the status
of her parole hearing. See In re
Disciplinary Proceedings Against
Hartigan, 2005 WI 3, 277 Wis. 2d 341, 690
N.W.2d 831. His license remains suspended,
as he has not yet petitioned for
reinstatement. See SCR 22.28(3).
Attorney Hartigan had not been the subject
of disciplinary proceedings prior to the
January 2005 suspension.
|
|
¶3 The present proceeding arises out
of a complaint filed by the OLR on April
19, 2005 alleging six counts of
professional misconduct. The OLR attempted
on multiple occasions to have the complaint
personally served on Attorney Hartigan, but
all service attempts were unsuccessful.
Service was accomplished on May 27, 2005 by
the OLR sending, via certified mail, an
authenticated copy of the complaint and
order to answer to Attorney Hartigan at the
most recent address he had furnished to the
State Bar of Wisconsin. See SCR 22.13
(1).
|
|
¶4 When Attorney Hartigan failed to
respond to the OLR's complaint, the OLR
moved for the entry of a default judgment.
The referee held a telephonic hearing on
July 18, 2005 and attempted unsuccessfully
to contact Attorney Hartigan at the last
phone number he had provided to the
Wisconsin State Bar. Ultimately, the
referee found Attorney Hartigan to be in
default.
|
|
¶5 The referee accepted the
allegations of the complaint as his
findings of fact, and concluded that they
established that Attorney Hartigan had
committed professional misconduct as set
forth in the six counts of the complaint.
As requested by the OLR, the referee
recommended that Attorney Hartigan be
publicly reprimanded for his misconduct and
ordered to pay the costs of the present
proceeding.
|
|
¶6 Attorney Hartigan has not filed an
appeal. The matter is therefore submitted
to the court for its review pursuant to SCR
22.17(2). The 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). The
referee's conclusions of law, however, are
subject to de novo review. See In re
Disciplinary Proceedings Against Carroll,
2001 WI 130, ¶29, 248 Wis. 2d 662, 636
N.W.2d 718.
¶7 In summary, Attorney Hartigan's
misconduct in the present case involved his
representation of three clients: T.H.,
K.S. and M.B.
¶8 From 2001 through December 1, 2003,
the State Public Defender's Office (SPD)
certified Attorney Hartigan to represent
clients at revocation hearings in front of
the Division of Hearings and Appeals (the
Division). One of the individuals that
Attorney Hartigan was appointed to
represent was T.H. Attorney Hartigan was
supposed to represent her at a parole
revocation hearing on October 9, 2002.
Attorney Hartigan failed to communicate
with T.H. at any time prior to the
revocation hearing and failed to appear at
the October 9, 2002 hearing. Ultimately
the hearing was rescheduled but Attorney
Hartigan failed to notify T.H. of the
rescheduling.
¶9 The SPD also appointed Attorney
Hartigan to represent K.S. at a probation
revocation hearing scheduled for September
29, 2003. Pursuant to K.S.'s request,
Attorney Hartigan attempted to reschedule
the hearing but the administrative law
judge (ALJ) refused his request. Attorney
Hartigan then failed to appear at the
September 29, 2003 hearing and failed to
notify either K.S. or the ALJ that he would
not be present. On September 29, 2003,
David Schwartz, the Division's
administrator, sent a letter to Attorney
Hartigan admonishing him for failing to
appear or to notify the Division that he
would not be appearing. K.S.'s revocation
hearing was rescheduled for two different
dates in October 2003 but Attorney Hartigan
failed to appear each time.
¶10 When the ALJ finally was able to
speak with Attorney Hartigan concerning his
failure to appear, Attorney Hartigan denied
that K.S. was his client or that he had
knowledge of the rescheduled hearings.
Attorney Hartigan also told the ALJ that
since he had not been recertified by the
SPD, he could no longer represent K.S.
This was a false statement as Attorney
Hartigan's certification had been extended
by the SPD until December 1, 2003.
Attorney Hartigan had not informed K.S.
that he was withdrawing as K.S.'s counsel.
¶11 When the SPD subsequently appointed
new counsel for K.S. pursuant to his
request, Attorney Hartigan failed to
transfer K.S.'s file to his new attorney.
Attorney Hartigan's failure to withdraw
properly caused K.S. to use up his one
request to the SPD for a new attorney.
Attorney Hartigan's pattern of conduct
caused the Division to file a grievance
against him with the OLR.
¶12 The OLR attempted to contact
Attorney Hartigan in late March 2004 but
was not immediately successful. On April
5, 2004, Attorney Hartigan sent an email to
an OLR investigator indicating that he was
now available to meet. Attorney Hartigan,
however, failed to appear at the scheduled
time. When the OLR subsequently served
Attorney Hartigan with a Notice of
Investigative Interview, Attorney Hartigan
did finally appear but produced only a
single letter relevant to the
investigation. Although he promised to
produce other documents, including a letter
showing the transfer of K.S.'s file to
successor counsel, Attorney Hartigan failed
to do so.
¶13 Attorney Hartigan committed similar
misconduct in his representation of M.B.
M.B. retained Attorney Hartigan in
connection with a criminal matter.
Subsequently, Attorney Hartigan was
terminated from his associate position with
his law firm. Attorney Hartigan then
appeared at M.B.'s trial on September 17,
2003. He requested an adjournment on the
grounds that he was waiting for M.B., who
was in custody, to sign a letter
transferring the file from Hartigan's
former firm to Attorney Hartigan. The
trial court ultimately rescheduled the
trial for December 3, 2003. Subsequently,
pursuant to M.B.'s request, Hartigan's
former firm did transfer M.B.'s file to
Attorney Hartigan. Despite receiving the
file, Attorney Hartigan did not appear at
the December 3, 2003 trial and did not
notify either his client or the court that
he would not be appearing. Although the
court left multiple messages for Attorney
Hartigan informing him that the trial had
been adjourned until December 16, 2003,
Attorney Hartigan did not appear on that
date. Attorney Hartigan did not file a
motion to withdraw from his representation
of M.B. M.B. subsequently stated that he
received a letter from Attorney Hartigan
stating that Attorney Hartigan had not
appeared at the scheduled court dates
because he needed additional money from
M.B. to continue the representation.
|
|
¶14 Based upon the above findings of
fact, the referee concluded that Attorney
Hartigan had engaged in professional
misconduct as alleged in each of the six
counts of the OLR's complaint. With
respect to the representation of T.H., the
referee determined that Attorney Hartigan's
failure to communicate with T.H.
constituted a failure to keep the client
reasonably informed about the status of a
matter, contrary to SCR 20:1.4(a).
|
|
¶15 The referee also found four
violations in connection with the K.S.
representation and the OLR's investigation
of the same. The referee concluded that
Attorney Hartigan's failure to appear at
K.S.'s hearings represented a failure to
act with reasonable diligence, in violation
of SCR 20:1.3. The referee further
determined that Attorney Hartigan had
violated SCR 20:1.4(a) by failing to
communicate with K.S. concerning the status
of his revocation hearing and Attorney
Hartigan's alleged inability to continue
the representation. Attorney Hartigan also
violated the requirement of SCR 20:1.16(d)
to protect his client's interest upon
termination of the representation by
failing to inform the client that he could
no longer represent him and by failing to
transfer the client's file to successor
counsel. The referee further concluded
that Attorney Hartigan's failure to respond
to the OLR requests for information and
documents and his failure to appear for a
scheduled interview with the district
committee's investigator violated SCR 22.04
(1).
|
|
¶16 Finally, with respect to M.B., the
referee concluded that Attorney Hartigan's
failure to notify M.B., the court and
opposing counsel of his intent not to
appear at trial and his failure to file a
formal motion to withdraw constituted a
failure to protect the client's interests
upon termination of a representation in
violation of SCR 20:1.16(d).
|
|
¶17 Based on these findings of fact and
conclusions of law, which we adopt, we
accept the referee's recommendation that
Attorney Hartigan be publicly reprimanded
for his professional misconduct. From both
this proceeding and the prior proceeding,
we note a disturbing pattern by Attorney
Hartigan of failing to represent his
clients diligently and to conduct himself
as an officer of the court. As noted
above, Attorney Hartigan's license remains
suspended for his previous misconduct. The
present misconduct will also be taken into
account in the event that Attorney Hartigan
petitions for reinstatement of his license
to practice law. Finally, in addition to
the public reprimand, we also agree with
the referee's recommendation that Attorney
Hartigan should pay the costs associated
with this disciplinary proceeding, totaling
$613.28 as of August 12, 2005.
¶18 IT IS ORDERED that Attorney Seth B.
Hartigan is publicly reprimanded for his
professional misconduct.
¶19 IT IS FURTHER ORDERED that, within
60 days of the date of this order, Attorney
Seth P. Hartigan 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 Seth P. Hartigan to
practice law in Wisconsin shall be
suspended until further order of the court.
¶20 LOUIS B. BUTLER, JR., J., did not
participate.
|