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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Mark E.
Converse has appealed from a referee's
report concluding that he engaged in
professional misconduct and recommending
that his license to practice law in
Wisconsin be suspended for a period of one
year.
¶2 We conclude that the referee's
findings of fact are supported by
satisfactory and convincing evidence. We
further determine that the seriousness of
Attorney Converse's misconduct warrants the
suspension of his license to practice law
for a period of one year. We also agree
with the referee that the costs of the
proceeding, which are $4056.34, as of
December 12, 2005, should be assessed
against Attorney Converse.
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¶3 Attorney Converse was admitted to
practice law in Wisconsin in 1973 and
practices in Green Bay. In 1985 he
consented to the imposition of a public
reprimand for neglect of a client matter
and representation in a conflict of
interest situation. In 1992 he was again
publicly reprimanded for failing to
diligently pursue a client's criminal
appeal and failing to turn over the
client's file to new counsel. He was also
ordered to perform 200 hours of pro bono
legal work. See In re Disciplinary
Proceedings Against Converse, 168 Wis. 2d
8, 482 N.W.2d 911 (1992). In 1994 Attorney
Converse's license was suspended for 60
days for failing to timely file federal and
state income tax returns. See In re
Disciplinary Proceedings Against
Converse, 185 Wis. 2d 373, 517 N.W.2d 191
(1994). In 2004 his license was suspended
for 90 days for failing to act with
reasonable diligence and promptness in
representing a client; engaging in conduct
involving dishonesty, fraud, deceit or
misrepresentation; failing to cooperate
with the Office of Lawyer Regulation (OLR)
in its investigation into grievances filed
by his clients; and failing to reduce a
contingent fee agreement to writing.
See In re Disciplinary Proceedings
Against Converse, 2004 WI 10, 268 Wis. 2d
562, 675 N.W.2d 238.
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¶4 On September 9, 2004, the OLR filed
a complaint alleging six counts of
misconduct with respect to Attorney
Converse's handling of two client matters.
The first matter involved Attorney
Converse's representation of R.K. and M.K.
who had contracted to have renovations made
to their home. A dispute arose between the
K.s and the contractors regarding payment
for the work performed and the quality of
the work. The contractors sued the K.s for
breach of contract. A different attorney
represented the K.s through the first day
of trial. The K.s then fired that attorney
and retained Attorney Converse to represent
them, agreeing to pay Attorney Converse
$120 per hour, plus out-of-pocket costs.
The K.s paid Attorney Converse an initial
retainer fee of $2500. They were not asked
to sign a fee agreement. At the conclusion
of the trial on June 1, 2001, the court
awarded judgment in favor of the
contractors and against the K.s in the
amount of $8104.52, plus 5 percent interest
from July 5, 1999, to the date of
judgment. The judgment was filed with the
clerk of circuit court on June 29, 2001.
¶5 Immediately after the trial, the
K.s told Attorney Converse they wanted to
appeal, and Attorney Converse agreed to
represent them. The K.s paid Attorney
Converse an additional $3500. Attorney
Converse asserts this payment was for work
done through the trial, while the K.s
assert the money was a retainer to pursue
the appeal.
¶6 Attorney Converse filed the notice
of appeal on August 30, 2001, and filed the
docketing statement on September 12, 2001.
He met with the K.s on September 22, 2001,
to discuss their appeal and requested an
additional retainer fee. The K.s asked for
an itemized statement of fees and costs
through the trial. Attorney Converse never
provided an itemized statement. On
December 3, 2001, Attorney Converse filed a
motion requesting additional time to file
his appellate brief. The motion was
granted and he was given until December 21,
2001, to file the brief. He never filed
it.
¶7 On January 8, 2002, the court of
appeals issued an order dismissing the
appeal because no brief had been filed.
Attorney Converse received notice of the
dismissal on January 10, 2002. On February
15, 2002, the court of appeals entered a
remittitur to the circuit court confirming
the dismissal of the appeal. Attorney
Converse did not tell the K.s about the
dismissal and did not mail them copies of
either court of appeals order.
¶8 The K.s telephoned Attorney
Converse several times between September
2001 and February 2002 to discuss the
status of their appeal and scheduled
several meetings with Attorney Converse,
all of which were cancelled. Although the
K.s had more than ten contacts with
Attorney Converse after January 8, 2002,
Attorney Converse never told them the
appeal had been dismissed or that he never
filed an appellate brief. On February 7,
2002, Attorney Converse met with the K.s to
discuss the appeal. Even though the appeal
had already been dismissed, Attorney
Converse told the K.s he was still working
on the brief. He asked for additional
money to pursue the appeal, but the K.s did
not pay him any additional money and again
asked for an itemized statement of fees and
costs, which was never provided.
¶9 On April 18, 2002, the K.s sent
Attorney Converse a certified letter
expressing surprise that they had not
received copies of the appellate brief.
They requested copies of the brief and
information about the status of the
appeal. Attorney Converse failed to reply
to the letter. On May 9, 2002, R.K.
telephoned Attorney Converse and talked
with him about the status of the appeal.
Attorney Converse did not tell R.K. that
the appeal had been dismissed and
represented he was still working on the
brief. On June 30, 2002, the K.s again
wrote to Attorney Converse asking for
information about the status of the
appeal. Attorney Converse failed to
reply.
¶10 On August 8, 2002, R.K. was at the
Shawano County courthouse and learned from
the clerk of court that the appeal had been
dismissed. R.K. telephoned Attorney
Converse and expressed outrage over the
dismissal. Attorney Converse said he would
get the appeal reopened or file a new
action.
¶11 R.K. reported Attorney Converse's
conduct to the OLR on May 21, 2003. On
July 7, 2003, the OLR sent Attorney
Converse a letter asking for a written
response. Attorney Converse failed to
respond. The OLR sent a second request, by
both regular and certified mail, on August
7, 2003, informing Attorney Converse that
his response must be postmarked by August
18, 2003. On August 18, Attorney Converse
telephoned the OLR and said he would send a
response the next day. He sent the
response on August 22, 2003. In the
response, Attorney Converse admitted he had
failed to complete the appeal and had
failed to communicate with the K.s.
¶12 On August 27, 2003, the OLR sent
Attorney Converse another letter asking him
to provide additional information about the
K. matter on or before September 10, 2003.
On September 10, Attorney Converse
telephoned the OLR and advised he would
mail his response on September 15. The
response was not sent. On September 30,
2003, the OLR sent Attorney Converse
another letter, by both regular and
certified mail, informing him that his
response must be postmarked by October 10,
2003. Attorney Converse's employee signed
the certified mail receipt on October 1,
2003, but Attorney Converse failed to
reply. On October 22, 2003, Attorney
Converse was personally served with a
letter informing him that he had seven days
to provide a written response to the OLR's
request for additional information.
Attorney Converse again failed to reply.
¶13 This court issued an order
requiring Attorney Converse to show cause
why his license should not be suspended for
his failure to cooperate with the OLR's
grievance investigation. Attorney Converse
failed to file a response and on January
23, 2004, this court suspended his
license. Attorney Converse finally sent a
response to the OLR on January 27, 2004,
and Attorney Converse's license was
reinstated on January 30, 2004.
¶14 The second client matter detailed
in the OLR's complaint involved Attorney
Converse's representation of M.H., who was
convicted of various criminal charges in
1985 and sentenced to 50 years in prison.
M.H. appealed, but the appeal was
dismissed. His postconviction proceedings
were reinstated in May 2000.
¶15 On September 21, 2000, the Brown
County Circuit Court appointed Attorney
Converse to represent M.H. in
postconviction proceedings. M.H. wanted
Attorney Converse to file a postconviction
motion to modify his sentence. M.H.,
Attorney Converse and M.H.'s prior counsel
exchanged correspondence from May to
December 2000. M.H. sent Attorney Converse
a summary of issues, a court decision and
other information. On December 19, 2000,
Attorney Converse wrote to M.H. and
acknowledged receipt of the case file.
¶16 On February 22, 2001, Attorney
Converse met with M.H. in prison. In May
and June 2001 M.H. wrote to Attorney
Converse inquiring about the status of the
case. On June 19, 2001, Attorney Converse
wrote to M.H. saying he would prepare a
rough draft motion for M.H.'s review.
¶17 On July 19, 2001, M.H. wrote to
Attorney Converse asking him to block
M.H.'s transfer to an out-of-state prison
so the postconviction proceedings would not
be interrupted. Attorney Converse
submitted a letter requesting a hold on
M.H.'s transfer. On August 2, 2001,
Attorney Converse wrote to M.H. informing
him that the request to hold the transfer
had been denied. On August 31, 2001,
Attorney Converse wrote to M.H. inquiring
about his placement status. During
September 2001 Attorney Converse and M.H.
exchanged correspondence in which M.H. gave
Attorney Converse permission to discuss the
case with his prior counsel and certain
other persons.
¶18 On October 2, 2001, M.H. wrote to
Attorney Converse enclosing a chronology of
the postconviction case to date. M.H. said
he was anxious to get the postconviction
motion prepared and filed. He also told
Attorney Converse he wanted to file a dual
motion seeking both sentence modification
and a new trial and that he would waive the
new trial request if the sentence
modification was granted. M.H. offered to
perform research and prepare motions and
other documents.
¶19 On October 15, 2001, Attorney
Converse wrote to M.H. accepting his offer
of assistance. Attorney Converse asked
M.H. to send him a copy of any affidavits
he received and to keep in regular contact
so Attorney Converse could keep the court
informed about the case and obtain a
hearing date as soon as possible after the
notice, motions, affidavits and supporting
briefs were completed.
¶20 From mid-October to the end of
December 2001 M.H. and an inmate named
Richards, who was apparently providing
assistance to M.H. in the case, exchanged
correspondence with Attorney Converse in
which M.H. authorized Attorney Converse to
discuss the case with Richards and in which
M.H. and Richards asked Attorney Converse
to send them a copy of the case file. On
December 25, 2001, Richards wrote to
Attorney Converse and acknowledged receipt
of the file. Richards asked Attorney
Converse to order transcripts and
exhibits. Attorney Converse wrote to M.H.
on January 14, 2002, describing the
exhibits that had been ordered. On January
30, 2002, the court issued an order for a
copy of transcripts.
¶21 On January 30, 2002, Attorney
Converse wrote to M.H. saying Attorney
Converse had picked up the certified
transcripts and had sent the only copies of
them to M.H. Attorney Converse wrote to
M.H. in February and March 2002 regarding
M.H.'s receipt of the transcripts. On
March 17, 2002, Richards wrote to Attorney
Converse saying Richards was being
transferred to another institution and
would no longer be daily involved in M.H.'s
case. On March 22, 2002, Attorney Converse
wrote to M.H. acknowledging receipt of
Richards's letter and expressing hope that
Attorney Converse would be able to file the
motion the next month. On March 25, 2002,
Richards sent Attorney Converse and M.H. a
draft motion and brief asking for a new
trial or sentence modification, notes on
transcripts and case law, and original
affidavits and other documents. Richards
told Attorney Converse he would still need
to obtain testimony and statements, along
with a supplemental pre-sentence
investigation report.
¶22 On April 12, 2002, Attorney
Converse wrote to M.H. and Richards
acknowledging receipt of the documents
Richards had sent. Attorney Converse said
he would try to obtain any existing
transcripts of the additional witnesses'
testimony or would attempt to have them
prepared. On May 17, 2002, Attorney
Converse visited M.H. and picked up the
transcripts. On May 20, 2002, Attorney
Converse wrote to M.H. and returned two
documents he had received from M.H. during
their May 17 meeting. Attorney Converse
said he would redraft an affidavit and send
it to M.H. for his review and signing
before a notary public. This letter was
the last correspondence M.H. received from
Attorney Converse.
¶23 On August 25, 2002, Richards wrote
to Attorney Converse asking why he
continued to delay in finishing and filing
the documents. Richards said if the case
did not begin to make some progress he
would advise M.H. to contact the judge to
make him aware of the delays. Attorney
Converse never replied to Richards's
letter. On October 3, 2002, M.H. wrote to
the presiding judge concerning Attorney
Converse's promises that he would soon be
in a position to file a motion for sentence
modification or postconviction relief, the
fact that no motion had been filed, and the
fact that the last correspondence M.H. had
received from Attorney Converse was dated
May 20, 2002. M.H. requested the court's
assistance in moving the case along.
¶24 M.H. filed a grievance with the OLR
complaining about Attorney Converse's lack
of diligence in representing him. Attorney
Converse submitted a written response to
the grievance on July 8, 2003, admitting he
had not had contact with M.H. since May
2002 and saying he was extremely sorry. On
July 9, 2003, the OLR wrote to Attorney
Converse asking him to describe in detail
why he had not had any contact with M.H.
since May 2002. On July 24, 2003, Attorney
Converse submitted his response but failed
to provide a detailed answer to the OLR's
question. Attorney Converse offered to
continue to serve as M.H.'s attorney if
M.H. wanted him to do so but also said he
would be willing to contact the court if
M.H. wanted new counsel.
¶25 Attorney Converse enclosed a copy
of a letter from M.H. dated July 13, 2003,
confirming M.H.'s desire to have Attorney
Converse remain his counsel. M.H.'s letter
said he had been transferred to Fox Lake
Minimum Correctional Institution in April
2003 and that he had received work release
privileges. M.H.'s letter also said he
wanted Attorney Converse to proceed with
the case since Attorney Converse was more
familiar with it than a new attorney would
be. In his letter to the OLR of July 24,
2003, Attorney Converse said he had
completed a rough draft of the motion,
would forward a copy of it to M.H. by July
29, would put it in final form and hoped to
file it no later than August 10, 2003.
¶26 On August 14, 2003, the OLR
telephoned Attorney Converse to inquire
about the status of the motion. Attorney
Converse said the motion was 90 percent
done but was not all typed yet. He said he
would send the motion to the OLR early the
next week. On September 10, 2003, Attorney
Converse telephoned the OLR and said the
motion was not yet in final form but that
he would send it shortly. When asked why
it had taken a month to complete the
motion, Attorney Converse said it was
because of the volume of work he had to
do.
¶27 On September 14, 2003, M.H. wrote
to the OLR and said as of that date he had
not received the motion or other documents
Attorney Converse had promised to prepare.
Attorney Converse never completed a
postconviction motion to modify M.H.'s
sentence, and the OLR never received any
information to demonstrate that Attorney
Converse sent a draft of the motion to
M.H. On March 10, 2004, the circuit court
appointed a different attorney to represent
M.H.
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¶28 John N. Schweitzer was appointed
referee in the matter. A hearing was held
on February 1, 2005. The referee issued
his report on February 28, 2005. The
referee concluded that by failing to file
an appellate brief for the K.s after having
been hired to do so, and by allowing the
time for filing a brief to expire resulting
in dismissal of the appeal, Attorney
Converse violated SCR 20:1.3. The referee
also found that by failing to respond to
the K.s' requests for information, failing
to return telephone calls and respond to
letters concerning the status of their
appeal, failing to respond to the K.s'
request for an itemized statement of fees
and costs, and failing to inform the K.s
that their appeal had been dismissed,
Attorney Converse violated SCR 20:1.4(a).
The referee further found that by
misrepresenting to the K.s that their
appeal was still pending and that he was
still working on the appellate brief when
in fact he knew the appeal had already been
dismissed, Attorney Converse violated SCR
20:8.4(c). In addition, the referee found
that by failing to timely respond to the
OLR's request for a written response in a
grievance investigation and by failing to
timely respond to the OLR's request for
additional information, Attorney Converse
violated SCR 22.03(2) and (6) and SCR 21.15
(4).
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¶29 With respect to the M.H. matter,
the referee found that by failing to
diligently complete and file a motion to
modify M.H.'s sentence, Attorney Converse
violated SCR 20:1.3. The referee also
found that by failing to communicate with
M.H. concerning his case from May 20, 2002,
until approximately July 2003 Attorney
Converse violated SCR 20:1.4(a).
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¶30 In discussing the appropriate
discipline to impose for this misconduct,
the referee noted that Attorney Converse
had been disciplined on four prior
occasions. The referee also noted that
counsel for the OLR enumerated a number of
mitigating and aggravating factors present
in the case. Aggravating factors included
Attorney Converse's prior disciplinary
offenses, a pattern of misconduct,
intentionally failing to comply with rules
or orders of the disciplinary agency,
Attorney Converse's substantial experience
as a legal practitioner, and harm to his
clients. The referee noted the only
mitigating factors identified by OLR
counsel were the absence of a dishonest or
selfish motive and Attorney Converse's
remorse. The referee noted that the OLR's
counsel said in his interactions with
Attorney Converse he found Attorney
Converse to be cooperative, decent, and a
nice guy.
¶31 The referee noted that the OLR
sought a one-year suspension of Attorney
Converse's license, and he said that
Attorney Converse offered no case law to
rebut the OLR's position or to suggest that
this court has departed from the general
approach of progressive discipline.
Instead, Attorney Converse argued that the
primary objective of discipline is
deterrence and he asserted that the conduct
that formed the basis for this action all
took place prior to October 2003, which was
when the hearing was held for the
discipline imposed in early 2004. Attorney
Converse argued that the salutary effect of
the earlier disciplinary proceeding was
sufficient to deter him from any further
misconduct and that he is now able to
better exercise judgment regarding the
number and types of cases he will take on.
In lieu of a suspension, Attorney Converse
proposed a mentoring program whereby a
reserve judge would serve as a mentor for
him. He also said to address the problems
he had with time management he could seek
counseling and he suggested the local OLR
board could monitor his compliance. He
also offered to perform uncompensated
community service for agencies such as
Wisconsin Judicare or Legal Services of
Northeastern Wisconsin.
¶32 The referee stated that in rebuttal
to Attorney Converse's proposal the OLR
pointed out that even though the violations
in this case occurred before October 2003,
some of them were committed after Attorney
Converse had received notice he was being
investigated by the OLR for very similar
violations and even during October 2003
Attorney Converse failed to cooperate with
the OLR in its investigation of these
grievances.
¶33 The referee said that Attorney
Converse had taken no steps to flesh out
his proposal for mentoring or counseling.
The referee specifically noted that
community service and a public reprimand
were used as an alternative to suspension
in 1992 but those were insufficient to
cause Attorney Converse to conform his
practice to the rules of professional
responsibility and since that time Attorney
Converse has caused additional harm to
clients and the legal community. The
referee concluded that a one-year
suspension of Attorney Converse's license
was reasonable and he also recommended that
Attorney Converse pay the costs of the
proceeding.
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¶34 In his appeal, Attorney Converse
does not contest the referee's findings of
fact or conclusions of law with respect to
the misconduct. The only issue he raises
on appeal is the reasonableness of the one-
year suspension. He notes that he was
suspended from the practice of law for 90
days beginning March 31, 2004, and was
reinstated effective July 1, 2004. He
complains that after being back in practice
for a little more than one month, he
received a letter from counsel for the OLR
saying that neither the charges to be
brought, nor the sanction sought in this
proceeding were subject to negotiation and
informing him that the sanction sought by
the OLR was a one-year suspension of his
license. Attorney Converse argues that
because he was serving a 90-day suspension
at the same time the OLR made the
determination to seek an additional one-
year suspension, an additional suspension
period is not appropriate.
¶35 The OLR argues that a one-year
suspension is in fact appropriate. It says
disciplinary sanctions for repeat attorney
offenders are frequently predicated on
offenses committed earlier in time than the
most recent disciplinary action.
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¶36 This court will adopt a referee's
findings of fact unless they are clearly
erroneous. Conclusions of law are reviewed
de novo. See In re Disciplinary
Proceedings Against Eisenberg, 2004 WI
14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.
The court may also impose whatever sanction
it sees fit regardless of the referee's
recommendation. See In re
Disciplinary Proceedings Against Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686. The referee's findings of fact in
this case have not been shown to be clearly
erroneous, and we adopt them. We also
agree with the referee's conclusions of
law. We further agree with the referee's
recommendation for a one-year suspension of
Attorney Converse's license to practice law
in Wisconsin and a requirement that
Attorney Converse pay the costs of this
proceeding.
¶37 Over the past 20 years Attorney
Converse has repeatedly been found to have
engaged in misconduct with respect to his
handling of various client matters. This
is the fifth time that he is the subject of
a disciplinary action. As the referee
noted, Wisconsin has long adhered to a
system of progressive discipline. The fact
that the frequency of Attorney Converse's
misconduct has resulted in multiple
disciplinary proceedings should not be a
basis for imposing a more lenient level of
discipline.
¶38 The misconduct at issue here was
serious, and Attorney Converse offers no
excuse for failing to diligently represent
the K.s and M.H., or for failing to provide
them with information about their cases in
spite of their numerous requests that he do
so. The fact that he now expresses remorse
for his conduct rings hollow, especially in
light of his previous disciplinary
history. Under the circumstances it is
reasonable to impose a one-year suspension
of his license to practice law and to
require him to pay the costs of the
proceeding.
¶39 IT IS ORDERED that the license of
Mark E. Converse to practice law in
Wisconsin is suspended for one year,
effective February 23, 2006.
¶40 IT IS FURTHER ORDERED that within
60 days of the date of this order, Mark E.
Converse 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 Mark E. Converse to practice law in
Wisconsin shall remain suspended until
further order of the court.
¶41 IT IS FURTHER ORDERED that Mark E.
Converse comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶42 N. PATRICK CROOKS, J., did not
participate.
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