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FIRST MATTER
In late 1996 or early 1997, a woman hired
Attorney James G. Moldenhauer
(“Moldenhauer”) of Eau Claire, to represent
her in resolving Federal and State tax
liabilities stemming from the operation of a
business by her husband, who had died
unexpectedly on February 6, 1996. According
to the client, the goal of the
representation was to negotiate reductions
in the amounts owed and to enter affordable
payment plan agreements with both the State
and Federal governments.
On July 29, 2002, Moldenhauer purportedly
transmitted to the IRS an Offer in
Compromise executed by the client on or
about July 26, 2002. The client has no copy
of the Offer in Compromise, and the IRS
apparently has no record of receiving an
Offer in Compromise in connection with the
client’s tax liability. In the course of
OLR’s grievance investigation, Moldenhauer
did produce a file copy of the purported
July 29, 2002 cover letter to the IRS.
According to the client, Moldenhauer told
her it would take the IRS approximately nine
months after receiving the document before
they would notify them if the plan would be
accepted or rejected.
The client had plans to re-marry on March
17, 2001. At the client’s request,
Moldenhauer drafted a pre-nuptial agreement,
which was satisfactorily entered prior to
the marriage. Moldenhauer never billed the
client for this service.
The client and her new husband met with a
tax preparer in early 2003 in connection
with the filing of returns for income earned
by the couple in 2002. In the course of the
meeting, the subject of the client’s
outstanding tax liabilities was raised, and
the client was prompted to ascertain the
status of the purported July, 2002 Offer in
Compromise, and the client says she learned
that the IRS had no record of having
received the document.
The client then hired successor counsel to
pursue resolution of her delinquent tax
matters. On April 11, 2003, successor
counsel sent Moldenhauer a Notice of
Retainer, indicating that the client had
hired him, “[t]o handle her delinquent
Federal and State tax situation,” and that
Moldenhauer, “should take no further action
in this matter.” Successor counsel’s
correspondence that accompanied the Notice
of Retainer stated in part:
Please be advised that at this time I am
requesting her file. However you wish to
handle this is fine with me. I am in Eau
Claire often enough that I would be able to
stop by and pick it up if I had to. Please
feel free to call and let me know how I can
obtain the file...
Moldenhauer did not produce the client’s
case file in response to successor counsel’s
April 11, 2003 correspondence. Successor
counsel wrote to Moldenhauer again on May
22, 2003, stating:
This is the second letter that I written
(sic) to you regarding [the client]. Again,
I am requesting her file. Please note that
I am perfectly willing to pay for the
expense of copying the file. I have also
called your office numerous times requesting
either the file or the ability to stop by
and make copies. This is the final letter
that I will be sending to you in regards to
this. If I do not hear from you, I will
simply stop by and make copies at that
time…
Moldenhauer did not produce the case file in
response to successor counsel’s May 22, 2003
correspondence. There is no evidence that
successor counsel went to Moldenhauer’s
office to make copies of the case file. In
responding to the grievance, Moldenhauer
stated an assumption that successor counsel
had case file materials earlier provided to
the client by Moldenhauer. There is nothing
to suggest that Moldenhauer acted to confirm
this assumption.
On February 28, 2006, OLR staff spoke with
successor counsel, who stated he contacted
both State and Federal taxing authorities on
September 22, 2003, requesting copies of
everything Moldenhauer had filed on the
client’s behalf. According to successor
counsel, he was told by both agencies
nothing had been filed by Moldenhauer.
Successor counsel was able to obtain tax
liability dispositions with the taxing
authorities. In a letter to OLR dated May
4, 2004, the client stated in part, “At this
point, my new lawyer has already resolved
this whole issue, in less than a year.”
The client filed a written grievance
against Moldenhauer, dated October 26, 2003
and received by OLR on October 29, 2003.
On December 11, 2003, OLR intake staff spoke
with Moldenhauer by telephone, and informed
him of the grievance. OLR intake staff
mailed Moldenhauer a copy of the grievance
on that date as well. Following the intake
evaluation of the grievance, the matter was
designated for formal investigation on
January 8, 2004.
By letter dated January 30, 2004, OLR staff
provided Moldenhauer with notice of the
formal investigation. OLR also provided
Moldenhauer with copies of all the written
grievance materials received as of that
date. Moldenhauer was directed to provide a
complete written response to the grievance
no later than February 23, 2004.
Moldenhauer did not respond to the
grievance by the February 23, 2004,
deadline. OLR sent a second notice to
Moldenhauer on March 5, 2004, by both
regular first class and certified mail. A
new response deadline of March 15, 2004, was
established. The letter sent by certified
mail was returned to OLR, unclaimed.
Moldenhauer did not respond by March 15,
2004. OLR arranged for personal service of
the grievance materials and notice of
investigation. Personal service was
accomplished on March 31, 2004. Moldenhauer
was to respond within seven days of being
served, but he did not do so.
On April 16, 2004, OLR filed a motion in the
Supreme Court, pursuant to SCR 22.03(4),
seeking an order requiring Moldenhauer to
show cause why his law license should not be
suspended for willful non-cooperation with
the grievance investigation. OLR thereafter
received responsive submissions from
Moldenhauer, prior to the issuance of any
order to show cause, and OLR so informed the
Supreme Court of that development by report
dated April 23, 2004. OLR withdrew its
motion for an order to show cause.
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By failing to advance the client’s interests
with respect to her unresolved State and
Federal tax obligations in any appreciable
manner in the approximate six-year period
that he represented her, Moldenhauer
violated SCR 20:1.3, which states, “A lawyer
shall act with reasonable diligence and
promptness in representing a client.”
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By failing to timely or meaningfully address
successor counsel’s specific, written
requests for the client’s file, Moldenhauer
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 client,
allowing time for employment of other
counsel, surrendering papers and property to
which client is entitled and refunding any
advance payment of fee that has not been
earned. The lawyer may retain papers
relating to client to the extent permitted
by other law.”
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By failing to timely file a written response
to the grievance after service by ordinary
mail and personal service, and filing a
response to the grievance only after OLR
filed a motion under SCR 22.03(4),
Moldenhauer violated the following Supreme
Court Rules:
• SCR 22.03(2), which states in
part, “The respondent shall fully and fairly
disclose all facts and circumstances
pertaining to the alleged misconduct within
20 days after being served by ordinary mail
a request for a written response.”
• SCR 22.03(6), which states, “In the
course of the investigation, the
respondent’s willful 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.”
SCR 22.03(2) and SCR 22.03(6) are
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.
SECOND MATTER
On or about November 21, 2002, a man and his
wife met with Attorney James G. Moldenhauer
(“Moldenhauer”) to discuss filing as joint
petitioners for a divorce. The two signed a
joint petition for divorce at that time.
The divorce was expected to be amicable and
uncontested. It is undisputed that
Moldenhauer advised the husband and wife
that he would represent the husband only,
and that he could not also represent the
man’s wife.
On or about December 7, 2002, the client
advanced Moldenhauer $1,356.00 for the
divorce case and signed papers to commence
the divorce. A joint divorce petition was
filed in Eau Claire County Circuit Court on
December 31, 2002. The client’s wife
retained counsel in July, 2003. The case
was eventually dismissed by agreement of the
parties on October 29, 2003.
The client wrote Moldenhauer a letter, dated
September 29, 2003, in which the client
stated that Moldenhauer’s services were no
longer required. The client further
requested an itemized bill and the return of
the unearned portion of the advanced funds,
no later than October 15, 2003.
Moldenhauer did not address the client’s
request by October 15, 2003. The client
sent another letter to Moldenhauer, dated
October 21, 2003. The client again asked
for a billing statement and the return of
the unearned portion of the advanced funds.
The client asked that the billing statement
and refund be provided by November 3, 2003.
The client further stated in his
letter, “Failure to do so will result in me
forwarding a formal complaint to the Office
of Lawyer Regulation.”
Moldenhauer did not address the client’s
request as of November 11, 2003, the date of
the client’s grievance, received by OLR on
November 12, 2003.
After unsuccessful attempts to reach
Moldenhauer on December 4, December 9 and
December 10, 2003, OLR intake staff was able
to speak with Moldenhauer by telephone on
December 11, 2003. In the course of that
contact, Moldenhauer stated to OLR intake
staff that he would send the client the
requested accounting and provide OLR with a
copy. OLR intake staff also sent
Moldenhauer a copy of the client’s grievance
on December 11, 2003.
Moldenhauer sent the client the requested
itemized billing, dated December 19, 2003,
and also sent the client $485.75,
representing the unearned portion of the
funds advanced by Swanson.
Moldenhauer had not provided OLR with a copy
of the December 19, 2003 itemized billing as
of January 12, 2004, when the client’s
grievance was designated for formal
investigation.
By letter dated January 30, 2004, OLR staff
provided Moldenhauer with notice of the
formal investigation. OLR also provided
Moldenhauer with copies of all the written
grievance materials received as of that
date. Moldenhauer was directed to provide a
complete written response to the grievance
no later than February 23, 2004.
Moldenhauer did not respond to the grievance
by the February 23, 2004 deadline. OLR sent
a second notice to Moldenhauer on March 5,
2004, by both regular first class and
certified mail. A new response deadline of
March 15, 2004 was established. The letter
sent by certified mail was returned to OLR,
unclaimed.
Moldenhauer did not respond by March 15,
2004. OLR arranged for personal service of
the grievance materials and notice of
investigation. Personal service was
accomplished on March 31, 2004. Moldenhauer
was to respond within seven days of being
served, but he did not do so.
On April 16, 2004, OLR filed a motion in the
Supreme Court, pursuant to SCR 22.03(4),
seeking an order requiring Moldenhauer to
show cause why his law license should not be
suspended for willful non-cooperation with
the grievance investigation. OLR thereafter
received responsive submissions from
Moldenhauer, prior to the issuance of any
order to show cause, and OLR so informed the
Supreme Court of that development by report
dated April 23, 2004. OLR withdrew its
motion for an order to show cause.
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By failing to timely provide the client with
an itemized billing statement and refund of
the unearned portion of the funds advanced
by the client, either on his own initiative
or in response to the client’s specific
requests made on September 29, 2003, and
October 21, 2003, Moldenhauer 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.”
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By failing to timely file a written response
to the grievance after service by ordinary
mail and personal service, and filing a
response to the grievance only after OLR
filed a motion under SCR 22.03(4),
Moldenhauer violated the following Supreme
Court Rules:
• SCR 22.03(2), which states in
part, “The respondent shall fully and fairly
disclose all facts and circumstances
pertaining to the alleged misconduct within
20 days after being served by ordinary mail
a request for a written response.”
• SCR 22.03(6), which states, “In the
course of the investigation, the
respondent’s willful 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.”
SCR 22.03(2) and SCR 22.03(6) are
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.”
Mr. Moldenhauer received a private
reprimand in 1996 for violations of SCR
20:1.3, 20:1.4(a) and former SCR 20:1.15(b)
in a probate matter.
In accordance with SCR 22.09(3), Attorney
James G. Moldenhauer is hereby publicly
reprimanded.
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