By Order dated October 19, 2004, the Wisconsin Supreme Court suspended the license of Krueger Smith for her willful failure to cooperate with the investigation of three matters, including the grievance filed by D.S.

On October 25, 2004, OLR received correspondence dated October 22, 2004 from Krueger Smith responding to the questions contained in OLR’s December 11, 2003 correspondence and provided a copy of her file to OLR.

In failing to fully and fairly disclose all of the facts and circumstances pertaining to the alleged conduct and in failing to fully respond to additional questions concerning D.S.’s grievance, Krueger Smith failed to cooperate with the investigation of D.S.’s grievance, in violation of SCR 21.15(4), which provides, “Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney’s wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys;” and in violation of SCR 22.03(6), which states, “In the course of the investigation, the respondent’s wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent’s misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.” Both SCR 21.15(4) and 22.03(6) are enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states in relevant part, “It is professional misconduct for a lawyer to…violate a…supreme court rule… regulating the conduct of lawyers.”

On or about April 29, 2002, Krueger Smith was appointed by the Public Defender’s Office to represent K.S. on his appeal of a conviction in Outagamie County. K.S. was initially incarcerated at the Green Bay Correctional Institution.

In January, 2003, K.S. filed a grievance with OLR asserting that after Krueger Smith was appointed, she contacted him by mail on or about June 5, 2002. K.S. alleged that following that initial contact, he wrote to Krueger Smith, but never received a response from her. K.S. alleged he had his grandmother call Krueger Smith in December, 2002, and Krueger Smith indicated she would come to visit K.S. in prison, but she never did. K.S. alleged that Krueger Smith never communicated with him and neglected to follow up on his case.

By letter dated March 25, 2003, OLR staff notified Krueger Smith of K.S.’s grievance and requested that she provide a written response by no later than April 18, 2003. Krueger Smith did not provide a response to OLR.

By letter dated April 30, 2003, sent by both regular and certified mail, OLR again requested that Krueger Smith provide a response to K.S.’s grievance by no later than May 10, 2003.

Krueger Smith still did not provide a written response to K.S.’s grievance to OLR.

On May 23, 2003, Krueger Smith was personally served with a letter dated May 22, 2003 together with enclosures from OLR requesting her written response to K.S.’s grievance by no later than June 16, 2003.

On June 16, 2003, OLR received Krueger Smith’s response to K.S.’s grievance. According to Krueger Smith, she was appointed to represent K.S. on May 31, 2002 and on June 4, 2002, she wrote to K.S., to trial counsel, and to the Outagamie County Clerk of Court to request the file. Krueger Smith asserted that in late June, 2002, K.S. called her to discuss his matter and she and K.S. discussed the fact that he had entered into a plea agreement whereby he admitted to the charge of party to the crime of armed robbery (with an enhancer for concealing identity) while a bail jumping charge was dismissed. As to sentencing, the agreement contemplated that the State would cap its recommendation at 6 years of incarceration, with 10 years of extended supervision. According to Krueger Smith, they discussed the fact that when a case was resolved by a plea agreement, often the only route available was to move to withdraw the plea and reinstate the original charges and proceed to a trial if the motion to withdraw plea was granted.

Krueger Smith asserted K.S. was initially in favor of moving to re-open the plea, since he claimed he had been “railroaded” by his first attorney into accepting the agreement when, in fact, he did not commit the crime because he had left the scene. Krueger Smith indicated that K.S. was also aware that both co-defendants had already pled to the charge and implicated K.S. in the entirety of the crime and both defendants could be subpoenaed to testify against K.S. if the matter were reopened. Krueger Smith also informed K.S. that although Wisconsin law was clear that a court could not increase a sentence following withdrawal of a plea and subsequent loss of a trial, the court could impose a different, and possibly greater sentence if it could point to legitimate information indicating that a different sentence was appropriate. According to Krueger Smith, K.S. insisted he wanted to attempt to proceed with a postconviction motion only if he could not “get more” in the end. Krueger Smith asserted she made it clear to K.S. that she could not promise anything.

Krueger Smith asserted that based on her conversation with K.S., and his insistence that he did not want to run the risk of “getting any more time,” she did not file the motion to withdraw plea. Krueger Smith stated in retrospect she should have followed up her conversation with K.S. with a confirming letter, but since he had been so clear, she did not see the need, particularly since K.S. was being moved around at that point due to another pending matter. Krueger Smith asserted she may have received a telephone call from someone representing herself as K.S.’s grandmother, although she did not remember the call.

By letter dated July 7, 2003, K.S. asserted that some of what Krueger Smith relayed in her initial response was true, but not everything. K.S. specifically disputed Krueger Smith’s contention that the two discussed the case by telephone after Krueger Smith received a letter from K.S dated June 25, 2002. K.S. asserted he had also requested that Krueger Smith attempt to get a new judge appointed if his case were re-opened.

Upon reviewing the evidence bearing on whether K.S. and Krueger Smith discussed by telephone the merits of post-conviction and/or appellate efforts, OLR, pointing to the events listed below, determined that such a discussion did not occur:

By letter dated December 11, 2003, sent by both regular and certified mail, OLR staff requested that Krueger Smith provide additional information relating to her representation of K.S.

Krueger Smith failed to respond to OLR’s December 11, 2003 correspondence.

On January 16, 2004, Krueger Smith was personally served with a letter dated January 14, 2004 with enclosures requesting that she provide a written response to the questions contained in OLR’s December 11, 2003 correspondence by no later than January 28, 2004.

By Order dated October 19, 2004, the Wisconsin Supreme Court temporarily suspended Krueger Smith’s license to practice law in Wisconsin, effective the date of the order.

By letter dated October 22, 2004, Krueger Smith provided the supplemental information relating to the K.S. grievance. Krueger Smith asserted she did not recall the exact date of her telephone conversation with K.S. but made handwritten notes of their 15 minute conversation which she had intended to transcribe, but never did. Krueger Smith acknowledged she did not confirm by letter that she would not be filing the motion to withdraw plea or that she would be closing her file. Krueger Smith also indicated she did not notify the Public Defender’s Office that she would not be taking any post-conviction action on K.S.’s case. Krueger Smith did not submit a bill to the Public Defender’s office requesting payment. Krueger Smith asserted because she did not keep notes regarding the date of K.S.’s call, and since her factual review and research did not take long and did not produce any tangible benefit to the client, she closed the case as “pro bono” without itemization and without requesting payment.

In failing to fully and fairly disclose all of the facts and circumstances pertaining to the alleged conduct and in failing to fully respond to additional questions concerning K.S.’s grievance, Krueger Smith failed to cooperate with the investigation of K.S.’s grievance, in violation of SCR 21.15(4), which provides, “Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney’s wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys;” and in violation of SCR 22.03(6), which states, “In the course of the investigation, the respondent’s wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent’s misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.” Both SCR 21.15(4) and 22.03(6) are enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states in relevant part, “It is professional misconduct for a lawyer to…violate a…supreme court rule… regulating the conduct of lawyers.”

By letter dated March 2, 2004, the Attorney Manager for the Office of the State Public Defender (SPD attorney manager) filed a grievance with OLR regarding the conduct of Krueger Smith and her representation of R.T. Krueger Smith had been appointed on May 28, 2002 by the Public Defender’s Office to represent R.T. in post-conviction proceedings and/or appeals in three Brown County cases.

The SPD attorney manager asserted that in April of 2003, he received a letter from R.T. stating that Krueger Smith had stopped taking his calls and responding to his letters regarding his cases. On April 17, 2003, the SPD attorney manager wrote to Krueger Smith and asked her to respond to the concerns raised in R.T.’s letter.

Krueger Smith did not contact R.T., nor did she respond to the SPD attorney manager’s April 17, 2003 letter.

On August 7, 2003, the SPD attorney manager again wrote Krueger Smith asking her to respond to his letter. The SPD attorney manager copied R.T. on his letter to Krueger Smith. R.T. immediately notified the SPD attorney manager that he had not heard from Krueger Smith.

By letter dated August 12, 2003, the SPD attorney manager forwarded R.T.’s letter to Krueger Smith, and asked her to respond to R.T.’s concerns.

After hearing nothing from Krueger Smith, on October 28, 2003, the SPD attorney manager sent a follow-up letter to Krueger Smith asking for a response and reminding her of her duties under the Supreme Court Rules.

On November 5, 2003, the SPD attorney manager received another letter from R.T. indicating that he still had not heard from Krueger Smith.

On November 11, 2003, the SPD attorney manager reached Krueger Smith by telephone. According to the SPD attorney manager, Krueger Smith stated she did not remember anything about R.T.’s case and that the file was in Marinette. Krueger Smith indicated she would retrieve the file and get back to the SPD attorney manager.

For the next month or so, Krueger Smith did not contact the SPD attorney manager.

On December 8, 2003, the SPD attorney manager sent out another letter to Krueger Smith reminding her of their earlier conversation in November, 2003 and requested an immediate response from Krueger Smith.

Krueger Smith did not reply to the SPD attorney manager’s December 8, 2003 correspondence.

On February 19, 2004, the SPD attorney manager called Krueger Smith. Krueger Smith again informed the SPD attorney manager that she did not have the file with her, but thought she had sent in a response to the SPD attorney manager. Krueger Smith asserted she would review the file and try to have something faxed to him by the following day. The SPD attorney manager indicated he would wait one more week for her response, but if none was received, he would be turning the matter over to OLR.

The SPD attorney manager received no further response from Krueger Smith and filed this grievance with OLR. The SPD attorney manager alleged that Krueger Smith had not pursued any post-conviction proceedings on behalf of R.T. and also alleged Krueger Smith had failed to contact him or to respond to R.T.’s inquiries concerning his case.

By letter dated April 13, 2004, OLR notified Krueger Smith of the grievance and requested that she submit a written response by no later than May 5, 2004.

After receiving no response, Krueger Smith was personally served with a follow-up letter from OLR dated May 20, 2004, requesting that her response to the grievance be postmarked no later than June 14, 2004.

By letter dated June 7, 2004, Krueger Smith responded to the grievance. Krueger Smith acknowledged that the SPD attorney manager had contacted her as he had indicated, but she did not respond to him in writing. Krueger Smith asserted she did obtain and review the files and transcripts relating to R.T.’s cases and wrote to R.T. regarding his options. Krueger Smith asserted that she did not receive a response to her letter other than the SPD attorney manager’s letter, and she should have contacted R.T. in response to the SPD attorney manager’s communications. Krueger Smith asserted she intended to reply, but her file, which was not then easily kept at hand did not show any responses. Krueger Smith indicated she has since moved all files into her office and instituted a “one- day response” policy with regard to all client communications.

The record does not support Krueger Smith’s contention that she ever described to R.T. the options available to him or relayed to him her conclusions regarding the viability of any such options. The record indicates that Krueger Smith communicated with R.T. twice. On May 31, 2002 Krueger Smith sent a letter of introduction to R.T. upon her appointment as his appellate counsel. On June 30, 2002, Krueger Smith wrote to R.T., stating in total:

On July 2, 2004, Krueger Smith was personally served with a letter from OLR dated June 29, 2004, requesting additional information. The June 29, 2004 letter requested that Krueger Smith provide her supplemental response to OLR by no later July 16, 2004.

By Order dated September 19, 2004, the Wisconsin Supreme Court temporarily suspended Krueger Smith’s license to practice law for her failure to cooperate with three investigations, including this matter, effective the date of the order.

By letter dated October 22, 2004, Krueger Smith submitted her supplemental response to OLR’s June 29, 2004 correspondence. Krueger Smith asserted that she knew the answers she was then submitting were late, but she was a solo practitioner and she did her own typing, and works long hours. According to Krueger Smith she had started to respond promptly, but when she was called away by other work, she did not get back to her responses to finish them or mail them. Krueger Smith indicated that despite this grievance, she had tried to be prompt, efficient, and responsive to her clients and kept putting their work first and telling herself that she would finish them tomorrow. Krueger Smith asserted, however, she kept putting off the work as well as her response to OLR, and that is no explanation and a poor excuse. Krueger Smith also submitted a copy of her file relating to R.T.’s matter.

Krueger Smith asserted she kept client files at her home in a cabinet approximately 34 miles from the office and things got “lost in translation” between her office and home. Krueger Smith stated she has since rectified the problem by keeping the original files in her office and a duplicate file at home for all appeals. Krueger Smith asserted the “one day response” policy referred to includes contacts both in writing and by phone. According to Krueger Smith this was a goal because sometimes it was not physically possible to do this because of numerous court appearances, including jury trials.

With regard to R.T., Krueger Smith asserted his case involved a plea agreement and a review of the transcripts revealed a thorough plea-taking proceeding. The only possibility of an issue seemed to arise from a statement by Judge Dietz referring to “…a recommendation at sentencing that you are aware of.” Krueger Smith indicated this led to two possible issues: breach by the State of a plea agreement or a failure to advise R.T. that the court was not bound by any sentence recommendation made by any party. This prompted Krueger Smith to send her June 30, 2002 letters to R.T. and to trial counsel. Krueger Smith eventually spoke to trial counsel, but learned nothing useful. Krueger Smith stated that R.T. did not respond right away, so she wrote him a second letter and asserted the information provided by R.T. was unhelpful and left no viable issues. Again, the record does not support Krueger Smith’s contention that she ever relayed to R.T. her conclusions regarding the viability of potential appellate issues.

In a letter to OLR staff dated December 7, 2004, the SPD attorney manager summarized Krueger Smith’s failings in R.T.’s case as follows:

Following receipt of Krueger Smith’s supplemental response in October, 2004, OLR notified the Wisconsin Supreme Court that Krueger Smith was then cooperating with the investigation of R.T.’s grievance.

In failing to fully and fairly disclose all of the facts and circumstances pertaining to the alleged conduct and in failing to fully respond to additional questions concerning the SPD attorney manager’s grievance, Krueger Smith failed to cooperate with OLR’s investigation, in violation of SCR 21.15(4), which provides, “Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney’s wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys;” and in violation of SCR 22.03 (6), which states, “In the course of the investigation, the respondent’s wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent’s misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance.” Both SCR 21.15(4) and 22.03(6) are enforceable under the Rules of Professional Conduct via SCR 20:8.4(f), which states in relevant part, “It is professional misconduct for a lawyer to…violate a…supreme court rule… regulating the conduct of lawyers.”