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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the
recommendation of the referee that the
license of Attorney James J. Ermert to
practice law in Wisconsin be suspended for
60 days for professional misconduct in his
handling of two client matters. In
addition to the license suspension, the
referee recommended that Attorney Ermert
pay the costs of this proceeding, which are
$2635.38 as of October 13, 2006.
¶2 We conclude that the referee's
findings of fact are supported by
satisfactory and convincing evidence. We
further agree that the seriousness of
Attorney Ermert's professional misconduct
warrants a 60-day suspension of his license
to practice law in Wisconsin.
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¶3 Attorney Ermert was admitted to
practice law in Wisconsin in 1962 and is a
sole practitioner in Racine. He has been
disciplined on five prior occasions. In
1987 he was privately reprimanded for
failing to file a bankruptcy petition on
behalf of a client for more than two years
despite repeated representations to the
client that the petition would be filed.
In 1989 he was publicly reprimanded for
failing to act on behalf of a criminal
client whom he was appointed to represent
by the state public defender. In 1990 he
was privately reprimanded for failing to
file findings of fact, conclusions of law
and the judgment in a divorce case, with
the result being that opposing counsel had
to prepare and file the documents, for
which the other party bore the cost.
¶4 In 1994 this court suspended
Attorney Ermert's license for 60 days for
failing to file an action for which he had
been retained and for misrepresenting to
his client that the action had been filed
and that hearing dates had been obtained.
In re Disciplinary Proceedings Against
Ermert, 182 Wis. 2d 516, 513 N.W.2d 608
(1994). In 2003 Attorney Ermert received a
consensual public reprimand for failing to
close the probate of an estate for over 30
months in one matter and for failing to
timely file a brief and failing to keep his
client reasonably informed about the status
of her case in a second matter.
¶5 On February 3, 2006, the Office of
Lawyer Regulation (OLR) filed a complaint
alleging that Attorney Ermert had engaged
in misconduct in his handling of two client
matters. The first matter involved his
representation of T.B. in a divorce
action. T.B. hired Attorney Ermert to
represent her in August 2004 and paid him a
$750 retainer. On September 10, 2004,
Attorney Ermert filed T.B.'s divorce in
Racine County Circuit Court. That action
was dismissed on November 23, 2004.
Attorney Ermert re-filed the divorce action
on June 8, 2005. No action was taken in
that matter other than the scheduling of a
first hearing. The second action was
dismissed on August 23, 2005.
¶6 On seven separate occasions between
September 2004 and July 2005 Attorney
Ermert told T.B. that a specific date and
time had been set for a hearing in her
divorce. In each instance Attorney Ermert
called T.B. one or two hours before the
purported hearing times and told her the
hearings had been cancelled. As of July
2005 the circuit court had never scheduled
any hearing dates in the matter.
¶7 During the course of the
representation, T.B. called Attorney Ermert
many times in an attempt to terminate his
representation and obtain a refund of the
$750 retainer she had paid him. Attorney
Ermert failed to return her calls. On July
28, 2005, T.B. sent a grievance to the OLR
complaining about Attorney Ermert's
conduct. T.B. received a full refund of
her retainer the next day. By letter dated
September 30, 2005, Attorney Ermert advised
the OLR staff that he was not opposing
T.B.'s allegation that he had misled her
and failed to complete her case properly.
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¶8 The OLR's complaint alleged that
Attorney Ermert failed to act with
reasonable diligence and promptness in
representing a client, in violation of SCR
20:1.3; 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); and engaged in conduct involving
dishonesty, fraud, deceit or
misrepresentation, in violation of SCR
20:8.4(c).
¶9 The second client matter detailed
in the OLR's complaint involved Attorney
Ermert's representation of C.P., who
retained Attorney Ermert in August 2002 to
represent her in a divorce proceeding.
C.P. initially paid Attorney Ermert a flat
fee of $750. She later paid an additional
$250 for the preparation of real estate
documents relating to the property
division.
¶10 The divorce action was filed in
Racine County Circuit Court on April 4,
2003. The original divorce judgment was
filed on December 3, 2003, and amended
findings were filed on June 1, 2004.
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¶11 Following C.P.'s divorce, Attorney
Ermert was to draft and file two quit claim
deeds to address two pieces of real estate
owned by C.P. and her former husband. At
least one of the deeds was drafted and
signed by the former husband at the time of
the final divorce hearing, but Attorney
Ermert put the deed in his file and
neglected to file it. It is unclear
whether the second deed was ever drafted,
but if it was Attorney Ermert did not file
it. C.P. discovered that the deeds had not
been filed some months after the divorce
had been granted, at which time she
contacted Attorney Ermert. Attorney Ermert
acknowledged that he never filed the
deeds. The deeds were eventually drafted
by a mortgage or title company and Attorney
Ermert refunded the $250 C.P. had paid him
to prepare and file the deeds. The OLR's
complaint alleged that by failing to file
the quit claim deeds in a timely fashion,
Attorney Ermert failed to act with
reasonable diligence and promptness in
representing a client, in violation of SCR
20:1.3.
¶12 Richard Ninneman was appointed
referee. A hearing was held on September
7, 2006. The referee issued his report and
recommendation on September 26, 2006. The
referee found that the OLR had proven by
clear and convincing evidence all of the
counts of misconduct set forth in the OLR's
complaint. The referee noted that the OLR
requested that Attorney Ermert's license to
practice law be suspended for 60 days.
Attorney Ermert argued this proposed
discipline was excessive, and he asked for
another public reprimand, coupled with a
requirement that he be required to have
more continuing legal education (CLE) hours
in the area of ethics.
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¶13 The referee rejected Attorney
Ermert's request for a public reprimand,
noting that Attorney Ermert had been the
subject of five previous disciplinary
proceedings. The referee said:
It is clear that [Attorney] Ermert needs
to be impressed concerning the seriousness
of his misconduct and the need to ensure
that similar misconduct does not occur in
the future. [Attorney] Ermert's suggestion
that a public reprimand, coupled with some
additional CLE requirements, would not have
that effect in light of his pattern of
misconduct in the past.
¶14 The referee also recommended that
Attorney Ermert pay the costs of the
proceeding. Attorney Ermert has not
appealed from the referee's report and
recommendation.
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¶15 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.
¶16 We adopt the referee's findings of
fact and conclusions of law and determine
that a 60-day suspension is the appropriate
discipline for Attorney Ermert's
professional misconduct. Attorney Ermert's
neglect of the two client matters at issue
in this case are serious failings, and his
current misconduct, coupled with his rather
extensive prior disciplinary history,
warrants a 60-day suspension. We further
agree with the referee that Attorney Ermert
should pay the full costs of the proceeding.
¶17 IT IS ORDERED that the license of
James J. Ermert to practice law in
Wisconsin is suspended for a period of 60
days, effective March 2, 2007.
¶18 IT IS FURTHER ORDERED that James J.
Ermert comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶19 IT IS FURTHER ORDERED that within
60 days of the date of this order James J.
Ermert pay to the Office of Lawyer
Regulation the costs of this proceeding.
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 James J.
Ermert to practice law in Wisconsin shall
remain suspended until further order of the
court.
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