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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
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¶1 PER CURIAM. We review the
referee's recommendation that we suspend
Attorney Patrick Michael Cooper's license
to practice law for a period of three years
for professional misconduct. Neither the
Office of Lawyer Regulation (OLR) nor
Attorney Cooper has appealed the referee's
recommendation. Therefore, the matter is
submitted to the court for review pursuant
to SCR 22.17(2). In conducting our review
we will affirm the referee's findings of
fact unless they are clearly erroneous.
See In re Disciplinary Proceedings
Against Sosnay, 209 Wis. 2d 241, 243, 562
N.W.2d 137 (1997). We review the referee's
conclusions of law de novo. See In
re Disciplinary Proceedings Against
Carroll, 2001 WI 130, ¶29, 248 Wis. 2d
662, 636 N.W.2d 718. In accordance with
our authority to supervise the practice of
law in this state, we determine the level
of discipline that is appropriate under the
particular circumstances, independent of
the referee's recommendation, but
benefiting from it. See In re
Disciplinary Proceedings Against Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶2 Attorney Cooper was admitted to
practice law in Wisconsin in 1993. He had
no disciplinary history prior to the filing
of this complaint. His law license is
currently suspended.
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¶3 The OLR filed a complaint against
Attorney Cooper on November 8, 2005.
Attorney Cooper filed a cursory answer,
simply denying the allegations. On
February 17, 2006, the OLR filed a lengthy
amended complaint, alleging some 33
separate counts of alleged misconduct.
Again, Attorney Cooper filed a cursory
answer that did not respond to the specific
allegations.
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¶4 The matter was assigned to a
referee and a series of telephone
conferences were scheduled. Attorney
Cooper could not be reached for the first
conference. The next two conferences were
postponed when Attorney Cooper requested an
opportunity to consult with a lawyer. Less
than one hour before the fourth scheduled
conference, Attorney Cooper sent the
referee a facsimile transmission,
indicating he was "unavailable today."
This facsimile was the last communication
received from Attorney Cooper in this
disciplinary proceeding. As the referee
stated in the report: "Despite numerous
subsequent notices, letters, facsimile
transmissions, e-mails, and telephone
calls, [Attorney Cooper] did not contact us
by any means whatsoever and never answered
his phone." Attorney Cooper also failed to
comply with the referee's order directing
him to file an amended answer that complied
with standard procedural requirements. He
failed to appear at the hearing scheduled
on the OLR's motion for a default
judgment. Eventually, the referee entered
a default judgment in favor of the OLR.
Attorney Cooper then failed to appear at
the scheduled hearing to consider the
appropriate sanctions for his misconduct.
¶5 Because Attorney Cooper failed to
participate in the disciplinary proceeding,
the referee eventually adopted as true the
allegations contained in the amended
complaint.
¶6 The misconduct in this case is
serious. The complaint alleges, and the
referee found, that Attorney Cooper
committed at least 35 separate instances of
professional misconduct, affecting some
seven clients as well as a retained
expert. Given the breadth and scope of the
misconduct and the fact that the factual
allegations were not challenged by Attorney
Cooper, we will only summarize the
referee's extensive findings of misconduct
in our decision.
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¶7 The amended complaint alleged that
Attorney Cooper repeatedly violated SCR
20:8.4(c), which prohibits conduct
involving fraud, deceit or
misrepresentation. Several of these claims
involved misconduct with respect to
financial transactions. The OLR alleged,
and the referee found, that Attorney Cooper
issued at least 17 checks totaling
$25,656.85 from his business account during
August and September 2003 knowing that his
business account was either overdrawn or
held no money when the checks were issued.
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¶8 The OLR alleged, and the referee
found, that Attorney Cooper converted to
his own use $4424.99 in funds that were
delivered to Attorney Cooper in connection
with a settlement involving one of his
clients.
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¶9 The OLR alleged, and the referee
found, that Attorney Cooper hired M.E. as
an expert to complete a vocational
assessment in a pending worker's
compensation matter. Attorney Cooper
induced M.E. to deliver the vocational
assessment by promising "immediate" payment
of $660, knowing that he had insufficient
funds to make this payment. The OLR
further alleged, and the referee found,
that Attorney Cooper then issued a check
from his business account to M.E. in the
amount of $660, knowing the account was
overdrawn. M.E. was required to make
numerous requests for payment. The OLR
alleged, and the referee found, that
Attorney Cooper converted to his own
personal use the $660 in funds to which
M.E. was entitled.
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¶10 Other alleged violations of SCR
20:8.4(c) involved misrepresentations made
by Attorney Cooper to certain clients.
More specifically, the OLR alleged, and the
referee found, that Attorney Cooper
misrepresented to his client, C.H., that
her wrongful termination case was
proceeding properly when he had not
actually filed any claim on her behalf.
The OLR alleged, and the referee found,
that Attorney Cooper misrepresented the
status of his client C.B.'s worker's
compensation case when he had not actually
filed a claim on her behalf.
¶11 Thus, the referee concluded, and we
agree, that each of the seven foregoing
incidents constituted conduct involving
dishonesty, fraud, deceit or
misrepresentation in violation of SCR 20:8.4
(c).
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¶12 The amended complaint also alleged
three violations of the trust account rule,
former SCR 20:1.15(a) and SCR 20:1.15(b),
which were in effect prior to July 1,
2004. The referee found that on one
occasion Attorney Cooper deposited $13,000
into his personal account rather than a
trust account, on another occasion he
deposited $660 owed to M.E., a retained
vocational expert, into his personal
account rather than a trust account, and on
a third occasion Attorney Cooper failed to
notify M.E. that he had received funds
intended to pay for the vocational
assessment and failed to deliver those
funds to M.E. We agree that these
infractions constitute violations of former
SCR 20:1.15(a) and SCR 20:1.15(b).
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¶13 The amended complaint also alleged,
and the referee found, that Attorney Cooper
failed to communicate or cooperate with the
OLR in several instances, including making
several material misrepresentations to the
OLR regarding his failure to compensate
M.E. for the completed vocational
assessment; making misrepresentations to
OLR about his handling of settlement
checks; failing to provide information to
the OLR regarding the matter of M.E., the
retained vocational assessment expert;
failing to provide information to the OLR
relating to three other client matters;
misrepresenting to the OLR that he had
transmitted a requested document that he
had not in fact sent; and failing to
provide the OLR with a copy of a requested
client file. The referee concluded and we
agree that each of these instances violated
SCR 22.03(6), which is actionable pursuant
to SCR 20:8.4(f).
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¶14 We also agree with the referee's
findings and conclusions that Attorney
Cooper violated SCR 20:1.5(e) by engaging
in improper fee splitting, and that he
violated SCR 20:1.16(d) on two occasions
when he failed to deliver a client's file
to successor counsel for weeks after the
request was made, and also failed to
respond to numerous telephone messages
requesting delivery of the client file.
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¶15 The amended complaint also alleged,
and the referee found, some seven instances
in which Attorney Cooper failed to keep his
clients reasonably informed about the
status of their respective cases or failed
to respond to their reasonable requests for
information. The referee concluded, and we
agree, that Attorney Cooper thereby
violated SCR 20:1.4(a).
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¶16 In addition, the complaint alleged,
and the referee found, that Attorney Cooper
failed to act with diligence in four client
matters in violation of SCR 20:1.3, and,
on two occasions, failed to provide clients
C.B. and D.C. with sufficient information
to make an informed decision, violating SCR
20:1.4(b).
¶17 Having accepted the referee's
factual findings and the legal conclusions
drawn from those findings, we turn to the
question of the appropriate discipline for
Attorney Cooper's misconduct.
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¶18 Initially, this court considered
whether the recommended three year
suspension was adequate in view of the
extensive misconduct committed in this
matter. On October 12, 2006, the court
issued an order asking the parties to
evaluate whether revocation might be
appropriate here, noting that the referee
had also considered revocation as a
possible sanction in this matter. We note
that the OLR has advised that restitution
is not required here.
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¶19 Ultimately, like the referee, we
accept the OLR's recommendation that a
three year suspension is adequate
discipline. We acknowledge that there are
numerous aggravating circumstances here
including the multiple offenses and
pervasive pattern of misconduct. Attorney
Cooper's own dealings with the OLR are a
significant aggravating factor. As the
referee observed: "In simple terms,
[Attorney Cooper] attempted to obstruct and
thwart the OLR's investigation through lies
and 'stonewalling.'" Indeed, perhaps the
only mitigating circumstances here are the
lack of prior disciplinary history and the
fact that Attorney Cooper repaid M.E., from
whom he converted funds.
¶20 However, we acknowledge that
Attorney Cooper’s lack of previous
disciplinary history warrants some
consideration. Short of revocation, a
three year suspension is one of the most
punitive sanctions imposed by this court.
A three year suspension for the misconduct
committed in this case is consistent with
prior disciplinary decisions, as well.
See, e.g., In re Disciplinary
Proceedings Against Brown-Perry, 2003 WI
151, 267 Wis. 2d 184, 672 N.W.2d 287; In
re Disciplinary Proceedings Against
Tully, 2005 WI 100, 283 Wis. 2d 124, 699
N.W.2d 882. Accordingly, we accept the
referee's recommendation and suspend
Attorney Cooper's license for a period of
three years. He is further ordered to pay
the costs of this proceeding which total
$3731.34, as of August 22, 2006.
¶21 IT IS ORDERED that the license of
Patrick Michael Cooper to practice law in
Wisconsin is suspended for a period of
three years, effective the date of this
order.
¶22 IT IS FURTHER ORDERED that Patrick
Michael Cooper comply with the provisions
of SCR 22.26 concerning the duties of a
person whose license to practice law in
Wisconsin has been suspended if he has not
already done so.
¶23 IT IS FURTHER ORDERED that within
60 days of the date of this order Patrick
Michael Cooper 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 Patrick
Michael Cooper to practice law in Wisconsin
shall remain suspended until further order
of the court.
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