Wisconsin Court System
Wisconsin Attorneys' Professional Discipline Compendium
Public Reprimand of James G. Moldenhauer
2006-11
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.
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.”
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.”
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.
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.”
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.