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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the
referee's report, findings of fact, and
conclusions of law, based on the parties'
stipulation that Attorney Kremkoski
committed professional misconduct with
respect to his handling of two client
matters. The referee recommended that a
public reprimand be issued as a sanction
for this misconduct. After reviewing the
parties' responses to this court's order to
show cause why the discipline imposed
should not be a suspension rather than a
public reprimand, we accept the referee's
recommendation that a public reprimand is
appropriate.
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¶2 Attorney Kremkoski was admitted to
practice law in Wisconsin in 1976 and
practices in Racine. In 1997 he received a
consensual private reprimand for failing to
file a complaint when he knew the statute
of limitations would soon expire; failing
to inform the client that the statute of
limitations had expired; and making
repeated misrepresentations about receiving
a $100 payment from the client. In 2004
Attorney Kremkoski was publicly reprimanded
for misconduct consisting of representing
another person in the same or substantially
related matter in which that person's
interests were materially adverse to the
interests of the former client without
obtaining the former client's consent in
writing after consultation; failing to hold
in trust, separate from his own property,
an advance fee; failing to return any
unearned portion of a client's advance fee;
failing to act with reasonable diligence
and promptness in representing a client;
and failing to comply with a client's
reasonable requests for information
concerning the status of a case. See
In re Disciplinary Proceedings Against
Kremkoski, 2004 WI 150, 277 Wis. 2d 83,
690 N.W.2d 430.
¶3 On October 14, 2005, the Office of
Lawyer Regulation (OLR) filed a complaint
alleging four counts of misconduct with
respect to two client matters. The first
client matter detailed in the OLR's
complaint involved Attorney Kremkoski's
representation of S.S. S.S. sued his
employer for restitution regarding monetary
damages S.S. agreed to pay as a result of
an automobile accident, while driving a
vehicle owned by the employer, which S.S.
subsequently learned was not licensed,
registered or insured. S.S. paid Attorney
Kremkoski a $500 retainer. Attorney
Kremkoski did not file suit on S.S.'s
behalf until seven months later. Attorney
Kremkoski failed to send the summons and
complaint out for service, and he failed to
inform S.S. that he did not obtain service
on the defendants.
¶4 On several occasions S.S. and his
parents tried to contact Attorney Kremkoski
about the status of the lawsuit. Attorney
Kremkoski failed to return their calls.
¶5 On August 11, 2003, the circuit
court issued an order noting that service
on the defendants had not been made within
the statutory time period and that the case
would be dismissed within 20 days unless
good cause was shown why the order should
not take effect.
¶6 S.S.'s parents informed Attorney
Kremkoski of the court's order after
searching the Wisconsin Circuit Court
Access (WCCA) Web site for information
about the status of the case. S.S.'s
parents located a process server and served
the defendants well after the 90-day period
specified by statute.
¶7 On October 24, 2003, the circuit
court granted the defendants' motion to
dismiss without prejudice, because service
had not been accomplished within the
statutory period and because the matter had
not been diligently prosecuted. Attorney
Kremkoski appeared at the hearing but
failed to notify S.S. of the dismissal of
the case.
¶8 Attorney Kremkoski indicated he
would redraft the pleadings and refile the
case, but the case was not refiled and
Attorney Kremkoski never spoke with S.S. or
his parents again. On February 2, 2004,
S.S. terminated Attorney Kremkoski's
representation.
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¶9 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Kremkoski's handling of the
S.S. matter:
COUNT ONE—By failing to file the lawsuit
for seven months after he was retained, and
by failing to serve the defendants,
resulting in a dismissal of the suit,
Kremkoski failed to act with reasonable
diligence and promptness in representing a
client, in violation of SCR 20:1.3.
COUNT TWO—By failing to inform S.S. that
his lawsuit was dismissed due to
Kremkoski's failure to timely serve the
defendants and by failing to respond to the
S.S.' telephone calls, Kremkoski failed to
keep a client reasonably informed about the
status of a matter and promptly comply with
reasonable requests for information, in
violation of SCR 20:1.4(a).
¶10 The other client matter detailed in
the OLR's complaint involved Attorney
Kremkoski's representation of S.A., who
retained Attorney Kremkoski in November
2000 to represent him on a charge of
disorderly conduct that resulted from an
altercation with J.V. S.A. pled guilty to
the charge.
¶11 On May 10, 2002, J.V. filed a civil
lawsuit against S.A. due to alleged
injuries from the altercation. S.A.
retained Attorney Kremkoski to represent
him in the lawsuit. One of the issues in
the case was whether J.V. had a pre-
existing medical condition.
¶12 On June 14, 2002, S.A. paid
Attorney Kremkoski a $500 retainer. On
March 17, 2003, S.A. paid Attorney
Kremkoski an additional $500.
¶13 On June 20, 2002, Attorney
Kremkoski filed an answer and affirmative
defenses on S.A.'s behalf. He also served
J.V.'s attorney with interrogatories. Due
to J.V.'s failure to answer the
interrogatories, Attorney Kremkoski filed a
motion to compel production on September
30, 2002. Attorney Kremkoski withdrew the
motion when J.V. agreed to produce the
responses by the end of that day.
¶14 On October 3, 2002, J.V., through
his attorney, served Attorney Kremkoski
with interrogatories. Attorney Kremkoski
failed to answer them.
¶15 On November 27, 2002, J.V.'s
attorney designated expert witnesses,
provided proof of permanency and itemized
J.V.'s special damages. Attorney Kremkoski
failed to depose any of J.V.'s experts, did
not obtain an independent medical
examination of J.V., and did not obtain
certified medical records from the medical
providers to substantiate whether J.V. had
a pre-existing medical condition.
¶16 On January 21, 2003, J.V.'s
attorney filed a motion to compel
production of S.A.'s responses to
interrogatories. On January 23, 2003,
J.V.'s attorney noticed the deposition of
J.V.'s treating physician for February 19,
2003. Attorney Kremkoski did not attend
the deposition despite a summary prepared
by the treating physician on October 18,
2002, indicating that J.V. initially sought
treatment from the doctor on June 13, 2002,
and told him the pain began without any
antecedent events. The physician noted it
was not until a later visit that J.V.
related his recurrence of back pain to the
altercation with S.A.
¶17 On February 3, 2003, the circuit
court issued an order requiring S.A. to
produce answers to the interrogatories and
requests for production of documents. The
court also ordered S.A. to appear for a
deposition at J.V.'s attorney's office.
¶18 On February 6, 2003, Attorney
Kremkoski faxed answers to the
interrogatories to J.V.'s attorney.
Attorney Kremkoski informed J.V.'s counsel
that, due to a prior commitment, he would
not be appearing at the deposition with his
client.
¶19 S.A. appeared at the deposition
without counsel and refused to answer any
questions. The deposition was rescheduled
and Attorney Kremkoski appeared at the
deposition with S.A.
¶20 Although the scheduling order
required S.A. to designate expert witnesses
by January 30, 2003, on February 26, 2003,
Attorney Kremkoski wrote to J.V.'s counsel
indicating he might call two expert
witnesses at the hearing. Attorney
Kremkoski also reported that he had
obtained a new trial date of April 15,
2003. The trial had previously been
scheduled for March 4, 2003. On March 7,
2003, Attorney Kremkoski forwarded notice
of the new trial date to S.A. with a note
saying, "Please note new date. Come see
me. We need to work on this."
¶21 On April 9, 2003, the circuit court
adjourned the trial to June 10. Attorney
Kremkoski sent the notice of the
adjournment to S.A. with a note
saying, "Just got this in the mail. We
will be the #1 trial that day."
¶22 Beginning April 1, 2003, S.A.
and/or his wife called Attorney Kremkoski
10 to 15 times requesting information about
the status of the lawsuit. S.A. also
stopped at Attorney Kremkoski's office and
told him he wanted to meet to go over the
status of the case. Attorney Kremkoski
admits that he failed to speak to or meet
with S.A. in the weeks prior to the trial.
¶23 On June 5, 2003, Attorney Kremkoski
wrote to S.A. reminding him that the trial
was the following week. S.A. received the
letter on June 7 and said that before
receiving the letter he was unaware of the
trial date.
¶24 Attorney Kremkoski did not speak
with S.A. about the trial until June 9,
2003. On that date, at S.A.'s request,
Attorney Kremkoski faxed a request for an
adjournment of the trial. At a hearing on
the request S.A. expressed his desire to
terminate Attorney Kremkoski's
representation. The circuit court allowed
Attorney Kremkoski to withdraw and gave
S.A. the choice to proceed with the trial
or pay $2500 to opposing counsel for
expenses in preparing for trial. S.A.
reluctantly elected to pay the $2500 and
hired new counsel to represent him in the
lawsuit.
¶25 S.A. filed a small claims action
against Attorney Kremkoski to recover the
$2500 payment as well as the $1000 in legal
fees he had paid to Attorney Kremkoski.
Attorney Kremkoski counterclaimed seeking
$1343.75 in additional fees. After a court
trial in February 2004 S.A. was awarded a
judgment against Attorney Kremkoski in the
amount of $2607. Attorney Kremkoski
satisfied the judgment in March 2004.
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¶26 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Kremkoski's handling of S.A.'s
case:
COUNT THREE—By performing inadequate
preparation for the lawsuit, by failing to
conduct any depositions, by failing to
attend the deposition of the plaintiff's
expert witness, by failing to obtain
certified medical records related to the
plaintiff's pre-existing condition, by
failing to arrange an independent medical
examination of the plaintiff, by failing to
subpoena any witnesses for trial, and by
failing to meet with his client to prepare
for trial, Kremkoski failed to act with
reasonable diligence and promptness in
representing a client, in violation of SCR
20:1.3.
COUNT FOUR—By failing to respond to
S.A.'s telephone calls seeking information
about the lawsuit, and by failing to meet
with S.A. as he requested, Kremkoski failed
to keep a client reasonably informed about
the status of a matter and comply with
reasonable requests for information, in
violation of SCR 20:1.4(a).
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¶27 On November 23, 2005, Attorney
Kremkoski filed an answer admitting all of
the allegations of the OLR's complaint.
Attorney Kathleen Callan Brady was
appointed referee in the matter. Attorney
Kremkoski and the OLR subsequently entered
into a stipulation for the imposition of a
public reprimand. The stipulation stated
that Attorney Kremkoski was aware of his
right to be represented by counsel; that no
promises were made concerning future
discipline or lenience in the matter; that
he understood the nature and consequences
of the case and entered into the
stipulation voluntarily and of his own free
will.
¶28 The referee issued her report on
January 20, 2006, and agreed that a public
reprimand was the appropriate sanction for
Attorney Kremkoski's admitted misconduct.
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¶29 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 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 are
not clearly erroneous and we adopt them.
We also agree with the referee's
conclusions of law.
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¶30 On March 16, 2006, this court
ordered the parties to show cause why the
discipline in the proceedings should not be
a suspension rather than a public
reprimand. Attorney Kremkoski did not file
a response. The OLR responded by saying
that Attorney Kremkoski's misconduct in
this case occurred soon after or in the
midst of the prior disciplinary proceeding
that resulted in the 2004 public reprimand
and in both cases he was retained by the
clients in 2002.
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¶31 The OLR said it did not consider
Attorney Kremkoski's prior public reprimand
to be significantly aggravating when
weighing its sanction recommendation and
that it believed that due to the timing of
the underlying misconduct a progressively
more severe sanction need not be sought.
The OLR further noted that its
investigation had revealed that Attorney
Kremkoski ran his office "'on a
shoestring,' lacking office support or a
reliable system for tracking deadlines."
It also pointed out there was no monetary
harm given that in the S.S. case the
lawsuit was dismissed without prejudice and
in the S.A. case, although the client did
have to pay a sanction, Attorney Kremkoski
reimbursed the client. The OLR also noted
that Attorney Kremkoski was fully
cooperative during the course of the
disciplinary proceeding.
¶32 While this court generally adheres
to the practice of progressive discipline,
after careful review of the record and the
OLR's response to the order to show cause,
we conclude that a public reprimand is an
appropriate sanction for Attorney
Kremkoski's admitted misconduct.
¶33 IT IS ORDERED that Joe E. Kremkoski
is publicly reprimanded for professional
misconduct.
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