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FIRST MATTER
A man hired Attorney Richard W. Voss in
1999 to pursue claims against a contractor,
who did business under two company names,
and the contractor’s insurer. The client
had earlier engaged the contractor to
construct a basement and an addition to the
client’s residence. The client’s decision
to pursue claims against the contractor and
the entities the contractor controlled
followed the client’s receipt of a report
from a private building inspector who
opined that the work performed on the
client’s residence was of such poor quality
that removal and re-installation was
necessary to achieve proper workmanship and
to follow the contract between the parties.
Mr. Voss had previously represented the
client and the client’s wife in a
bankruptcy. Subsequent to that, Voss also
represented the client’s wife in her
stipulated divorce from the client.
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There was no written fee agreement
governing the terms of Mr. Voss’s
representation of the client. The client
initially thought Voss was representing him
on an hourly fee basis, probably $100 per
hour. The client ultimately came to be of
the view that Voss was representing him on
a contingent fee basis, probably 20% of any
recovery. Voss likewise believed he was
representing the client on a contingent fee
basis. There was, however, no written
contingent fee agreement. Voss violated
SCR 20:1.5(c), which states in relevant
part:
A contingent fee agreement shall be in
writing and shall state the method by which
the fee is to be determined, including the
percentage or percentages that shall accrue
to the lawyer in the event of settlement,
trial or appeal, litigation and other
expenses to be deducted from the recovery,
and whether such expenses are to be
deducted before or after the contingent fee
is calculated.
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The client never paid any funds to Mr. Voss
for legal services provided, but the client
did pay the filing fee in the litigation
and other costs. Voss states that the
funds advanced for costs were run through
his trust account, but he cannot produce
any trust account records in connection
with these costs transactions. Voss
violated former SCR 20:1.15(c)(5)(e),
effective through June 30, 2004, which
stated in part:
Complete records of trust account funds
and other trust property shall be kept by
the lawyer and shall be preserved for a
period of at least six years after
termination of the representation…
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Voss also violated current SCR 20:1.15(e)
(6), which states in part:
A lawyer shall maintain complete records
of trust account funds and other trust
property and shall preserve those records
for at least 6 years after the date of
termination of representation.
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With respect to the issue of trust account
records, if any, maintained by Mr. Voss in
connection with his representation of the
client, Office of Lawyer Regulation (“OLR”)
staff, in a letter to Voss dated July 8,
2005, directed Voss to state by July 21,
2005 whether he possessed the relevant
trust account records, and if so, to submit
them to OLR by that date as well. Voss did
not respond, and the same demand for a
response was made in a letter from OLR to
Voss dated July 26, 2005, sent by regular
and certified mail, with a new response
deadline of August 3, 2005. The certified
letter was received in Voss’ office on July
27, 2005, but Voss did not respond by the
extended deadline. Voss was then
personally served on August 10, 2005 with
the OLR request for information. Voss
finally addressed OLR’s request for trust
account record information in a letter to
OLR dated August 16, 2005. By failing to
make the required response until personally
served, Voss violated 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.
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SCR 22.03(6) is enforceable under the Rules
of Professional Conduct via SCR 20:8.4(f),
which states, “It is professional
misconduct for a lawyer to…violate a
statute, supreme court rule, supreme court
order or supreme court decision regulating
the conduct of lawyers.”
Efforts to resolve the dispute between
the client and the contractor and his
business entities short of litigation were
unsuccessful. Mr. Voss commenced
litigation on behalf of the client in
circuit court on October 26, 2001. Named
as defendants were the contractor (doing
business as the two entities) and the
contractor’s insurer.
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In May, 2002, counsel for the contractor
filed a notice of motion and motion to
dismiss the contractor personally from the
lawsuit, along with a supporting affidavit
and brief in support of the motion.
Counsel further moved to bifurcate the
liability and insurance coverage issues.
Mr. Voss had failed to assert in the civil
complaint that the contractor did work on
the client’s home construction project as
an employee and/or agent of the two
business entities. Voss did not file any
responsive pleadings to the motion to
dismiss the contractor personally, nor did
he otherwise act to create an issue of fact
regarding the contractor’s personal
involvement in the construction project at
the client’s home. In failing to take
steps in the litigation to personally link
the contractor to the alleged defective
construction at the client’s home, Voss
violated SCR 20:1.1, which states:
A lawyer shall provide competent
representation to a client. Competent
representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.
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A hearing on the motion to dismiss the
contractor was held on May 22, 2002. Mr.
Voss arrived late at the motion hearing,
after the court had already granted the
motion to dismiss the contractor personally
from the suit. When Voss did arrive, the
court allowed him an opportunity to be
heard, and Voss did resist the dismissal of
the contractor from the suit, but without
presenting witness testimony or other
evidence in support of his position. Voss
stated the valid concern that with the
contractor out of the suit, his two
businesses might essentially be non-
entities in the remainder of the
litigation. Voss did not object to the
bifurcation motion. By arriving late at
the motion hearing and presenting no
evidence to support his opposition to the
motion to dismiss the contractor, Voss
violated SCR 20:1.3, which states:
A lawyer shall act with reasonable
diligence and promptness in representing a
client.
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Mr. Voss did not inform his client of the
May, 2002 motion, the motion hearing, or
the resultant dismissal of the contractor
from the suit. Voss violated SCR 20:1.4
(a), which states:
A lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests
for information.
The defendant insurance company then moved
that it be dismissed from the suit on
grounds that its coverage did not extend to
the acts alleged in the suit. That motion
was granted at a hearing on October 14,
2002, and the suit was ultimately dismissed
outright. The client did receive a copy of
the insurer’s motion. Further, Mr. Voss’
office mailed the client a copy of Voss’
one-paragraph brief in opposition to the
removal of the insurer from the suit. Voss
did not, however, inform the client of the
granting of the motion, and the dismissal
of the suit. Voss again violated SCR 20:1.4
(a). The client learned of the case
disposition when he personally visited the
courthouse and inquired as to case status.
In late 2002, having learned of the
dismissal of his lawsuit from a source
other than Mr. Voss, the client asked
Voss’s office for his case file. Voss’s
office provided the client an incomplete
file. The client then consulted with
another attorney, who pointed out to Miller
the incompleteness of the file. That
attorney wrote to Voss on February 24,
2003, stating:
I have been retained by [the client] to
follow up on his lawsuit filed by your
office as referenced above. It appears
that [the client] previously requested his
file from your office and he has delivered
his file to me. There are substantial gaps
in the file in the way of missing
pleadings, correspondence and the like such
that it is nearly impossible to
reconstruct, based on the CCAP entries,
what actually occurred in this case.
I am requesting that you please check
and if you do have other portions of the
file, forward them to my office. If you
have questions or concerns, please feel
free to contact me.
In a letter dated January 20, 2005, OLR
staff provided written notice to Mr. Voss
that the client’s grievance had been
designated for formal investigation. In
the same letter, OLR posed a series of
questions and requests for information,
including what response, if any, Voss
provided to the February 24, 2003 letter
from the client’s successor counsel.
Rather than addressing the direct question
posed concerning the response, if any, he
provided to the February 24, 2003 letter
from successor counsel, Voss stated, in
correspondence to OLR dated February 28,
2005:
[T]here were no other things in my file
that would appear to have been helpful to
[successor counsel]. I did not hear from
her after the request was made.
…[E]nclosed are the remaining parts of
the file which I do not believe were given
to [the client]…
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By failing to timely honor the request for
delivery of the case file to the client
and/or successor counsel, Mr. Voss violated
SCR 20:1.16(d), which states:
Upon termination of representation, a
lawyer shall take steps to the extent
reasonably practicable to protect a
client’s interests, such as giving
reasonable notice to the client, allowing
time for employment of other counsel,
surrendering papers and property to which
the client is entitled and refunding any
advance payment of fee that has not been
earned. The lawyer may retain papers
relating to the client to the extent
permitted by other law.
SECOND MATTER
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On July 19, 2004, there was an overdraft in
the amount of $14,422.85 on the account
utilized by Attorney Richard W. Voss of
Rhinelander as his client trust account.
The overdraft occurred because a check
deposited in Voss’ trust account was
returned by the maker’s bank because of a
missing endorsement. Additionally, Voss
was not maintaining accurate and complete
trust account records and had taken a cash
withdrawal from a deposit to the trust
account. Finally, the account that Voss
has been using for his client trust account
is not an IOLTA pooled-interest trust
account.
On July 14, 2004, Voss deposited a check in
the amount of $59,241.86 into the account
he utilizes as his client trust account.
The check represented the proceeds from a
sale of real estate by Voss’ clients and
was made payable to “Voss Law Office Trust
Account.” Voss deposited the item on
December 14, 2004, and took a $400 cash
withdrawal from the deposit. While the
check was made payable to “Voss Law Office
Trust Account,” Voss endorsed the check
with his signature only. On December 19,
2004 the check was returned to Voss’ bank
because the endorsement did not match the
payee on the check. The bank removed
$59,241.86 from Voss’ account, leaving a
negative balance of $14,422.85 in the
account.
While Voss advised OLR staff that he had
routinely endorsed checks made payable to
his firm or to his trust account merely by
signing his name, this check was returned
by the maker’s bank because he hadn’t
endorsed it as “Voss Law Office Trust
Account.” Before resubmitting the check,
Voss endorsed the check again; however,
this time he merely wrote “Voss Law Office”
under his prior endorsement, without
including “Trust Account.”
A review of Voss’ trust account records
revealed several record keeping
deficiencies. Voss’s transaction register
for the period beginning on June 14, 2004
and continuing through July 30, 2004
included a number of inaccuracies,
including inaccurate or missing entries,
and incorrect calculations. Specifically,
in his transaction register, Voss had
failed to: (1) accurately record the date,
check number, and payee of a check issued
from his trust account; (2) record the $400
cash withdrawal taken by Voss from a
deposit to the trust account; (3) record
the return of the $59,241.86 check and the
subsequent removal of that amount from
Voss’ trust account by his bank; and, (4)
maintain an accurate running balance.
Additionally, the subsidiary client ledgers
provided by Voss contained additional
inaccuracies and errors, including Voss’
failure to maintain a running balance in
several of the subsidiary client ledgers.
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The account utilized by Voss as his client
trust account and reported on the overdraft
agreement filed by Voss with the Office of
Lawyer Regulation as his client trust
account is not an IOLTA trust account.
Initially, Voss provided the Office of
Lawyer Regulation with only partial copies
of requested bank statements for his trust
account. However, once Voss provided
complete copies of the bank statements, it
was discovered that the account utilized by
Voss as his client trust account is
actually a non-interest bearing personal
checking account. Further, the account is
designated as a “Personal Checking” account
on the monthly bank statements, which also
included the detail of activity in several
of Voss’ personal bank accounts on the same
statement. Voss’ bank confirmed that
the “Personal Checking” account utilized by
Voss as a client trust account is not an
IOLTA account. The bank also confirmed
that Voss does have a separate business
account for his law office that is clearly
identified as a non-personal account, the
activity in which is sent to Voss in a
separate bank statement. Because the
account was a non-interest bearing personal
checking account and had been used by Voss
since on or before March 21, 1986, it
appears that Voss has failed to accrue and
pay interest to the Wisconsin Trust Account
Foundation (WisTAF) on all pooled client
trust funds since adoption of that
requirement pursuant to SCR Chapter 13.
Voss is not exempt from the IOLTA account
requirements pursuant to SCR 13.04.
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Finally, within the year prior to the
overdraft, Voss had received training
regarding trust account management and the
record-keeping obligations of SCR 20:1.15.
Given this training, Voss should have been
aware of his record keeping obligations, as
well as the requirement to pay interest to
WisTAF on all pooled client trust funds.
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By taking a cash withdrawal from the
deposit in his trust account of the
$59,241.86 check, Voss violated SCR 20:1.15
(e)(4)a., which states “No disbursement of
cash shall be made from a trust account or
from a deposit to a trust account…” By
failing to accurately record the date,
check number, and payee of one or more
checks, and by failing to maintain an
accurate running balance in his transaction
register, Voss failed to comply with the
trust account record keeping requirements
of SCR 20:1.15(f)(1)a., which states:
The transaction register shall contain a
chronological record of all account
transactions, and shall include all of the
following: 1. The date source and amount of
all deposits; 2. the date, check or
transaction number, payee and amount of all
disbursements…; 3. the date and amount of
every other deposit or deduction of
whatever nature; 4. the identity of the
client for whom funds were deposited or
disbursed; and 5. the balance in the
account after each transaction.
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By failing to maintain a running balance in
his subsidiary client ledgers, Voss
violated SCR 20:1.15(f)(1)b., which
states “A subsidiary ledger shall be
maintained for each client or matter for
which the lawyer receives trust funds, and
the lawyer shall record each receipt and
disbursement of that client’s funds and the
balance following each transaction.” By
failing to maintain a pooled interest-
bearing account, by failing to participate
in the Interest on Trust Accounts Program,
and by depositing client and third party
funds that are nominal in amount and/or
intended to be held for a short period of
time in a non-interest-bearing account,
Voss violated: (a) Former SCR 20:1.15(c)(1)
[in effect prior to July 1, 2004], which
states, “A lawyer who receives client funds
shall maintain a pooled interest-bearing
trust account for deposit of client funds
…”; (b) SCR 20:1.15(c)(1) [in effect as of
July 1, 2004], which states “A lawyer who
receives client funds shall maintain a
pooled interest-bearing, demand account for
deposit of client or 3rd-party funds…”;
and, (c) SCR 13.04, which states “An
attorney shall participate in the [Interest
on Trust Accounts] program as provided in
SCR 20:1.15…” SCR 13.04 is enforceable
under the Rules of Professional Conduct for
Attorneys 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.”
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Attorney Voss received a private reprimand
in December, 2004 for violations of SCR
20:1.1 and 20:1.4(a) occurring in the
context of representing a client as the
plaintiff in a lawsuit.
In accordance with SCR 22.09(3), Attorney
Richard W. Voss is hereby publicly
reprimanded.
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