|
The Respondent, Attorney James Moldenhauer,
practices in Eau Claire, Wisconsin.
On March 23, 2005, a client hired Respondent
to probate his father’s estate. An
Application for Informal Probate was filed
on March 25, 2005.
The general inventory for the estate was
filed on November 28, 2005, and the final
account was filed on January 23, 2006.
Respondent prepared the estate’s final
income tax returns and submitted them to the
Internal Revenue Service (IRS) and the
Wisconsin Department of Revenue (DOR).
On or about March 20, 2006, the client paid
Respondent $1616.33 for the attorney’s fees
and costs associated with probating his
father’s estate, and the two of them agreed
that that amount constituted payment in full
for Respondent’s representation.
On May 31, 2006, the Probate Registrar sent
Respondent a letter reminding him that he
needed to close the estate or file a
petition for an extension of time.
On September 19, 2006, the Probate Court
(Court) issued an Order to Show Cause (OSC),
scheduled to be heard on October 17, 2006,
why the necessary action in the estate had
not been taken.
Respondent did not appear at the OSC hearing
on October 17, 2006. The Court issued
another OSC on October 17, 2006 and
scheduled it to be heard on November 3, 2006.
Respondent did not appear at the OSC hearing
on November 3, 2006. The Court issued
another OSC on November 3, 2006 and
scheduled it to be heard on November 17,
2006.
Respondent said he missed the October 17,
2006 and November 3, 2006 OSC hearings
because he was working with other clients,
either in person or on the phone, and lost
track of time. Respondent has no records to
indicate that he notified the Court of his
inability to attend.
The client said he attempted to contact
Respondent several times by telephone, both
before and after the October 17, 2006 and
November 3, 2006 OSC hearings, to find out
why the estate had not yet been closed, but
Respondent never returned his calls.
Respondent believed he responded to messages
left on his answering machine, but said that
sometimes the quality of his machine’s
reception is such that he is unable to
identify the caller.
Respondent appeared at the November 17, 2006
OSC hearing and informed the Court the
estate could not be closed because he had
not received the closing certificate for
fiduciaries from the DOR. The Court
instructed Respondent to send a letter to
the Court, with a copy to DOR, stating that
the estate was ready to close but Respondent
was waiting to receive the fiduciary closing
certificate.
On December 4, 2006, the Probate Registrar
sent Respondent a letter stating that the
Court has not yet received the letter it had
instructed Respondent to send on November
17, 2006. The Registrar’s letter asked
Respondent to file the letter within five
days.
Respondent never filed the letter ordered by
the Court on November 17, 2006.
On January 17, 2007, the Court issued
another OSC and scheduled it to be heard on
February 8, 2007. The OSC stated that
filing the necessary closing documents by
February 7, 2007 would lead to cancellation
of the hearing.
According to the client, after he learned
that the delay in closing the estate was
caused by DOR’s failure to send a closing
certificate after it received the deceased’s
2005 tax return, the client contacted the
DOR and sent them a copy of the estate’s tax
return. The DOR subsequently sent the
closing certificate to Respondent on
February 2, 2007.
Respondent did not appear at the February 8,
2007 OSC hearing. The Court then issued a
February 8, 2007 order which stated, in part:
NOW, THEREFORE, IT IS HEREBY ORDERED that
unless a satisfactory explanation can be
made to the Court for failure to appear and
for failure to close this estate, that
within ten days of this Order, Attorney
[Respondent] shall deposit a check payable
to the Estate of [client’s father], (sic)
the sum of $1,616.33 as a complete refund
for services rendered thus far.
The Court sent a February 8, 2007 letter to
Respondent that enclosed the Court’s Order.
Respondent did not respond to the Court’s
February 8, 2007 letter and Order.
The Court subsequently issued a final OSC on
March 6, 2007. On March 8, 2007, Respondent
filed the closing certificate for
fiduciaries and the estate was closed.
Respondent did not deposit a check in the
amount of $1616.33 on that date.
Respondent states he did not attend the
February 8, 2007 OSC hearing or respond to
the Court’s February 8, 2007 Order because
he though the fiduciary closing certificate
had been filed prior to February 8, 2007,
which would have cancelled the hearing.
The client filed a grievance on March 7,
2007, complaining about the above-described
events and stating he believed he was
entitled to the refund ordered by the Court.
After receiving notice of the grievance from
the Office of Lawyer Regulation, Respondent
sent the client a check, dated March 25,
2007, in the amount of $1616.33.
|
|
By failing to advance the client’s interests
in closing his father’s estate for almost a
year and, particularly, by failing during
that period of time to take steps to obtain
a closing certificate from the DOR so the
estate could be closed, Respondent violated
SCR 20:1.3, which states, “A lawyer shall
act with reasonable diligence and promptness
in representing a client.”
|
|
By failing to respond to the client’s
numerous requests for information about the
status of his father’s estate and why it had
not yet been closed, Respondent violated
former
SCR 20:1.4(a), effective prior to July 1,
2007, which stated, “A lawyer shall keep a
client reasonably informed about the status
of a matter and promptly comply with
reasonable requests for information.”
|
|
By failing to appear at the October 17,
2006, November 3, 2006, and February 8, 2007
hearings, after having been ordered by the
Court to appear and show cause on those
dates, and by failing to timely respond to
the Court’s February 8, 2007 order,
Respondent violated former SCR 20:3.4(c),
effective prior to July 1, 2007, which
stated, “A lawyer shall not knowingly
disobey an obligation under the rules of a
tribunal except for an open refusal based on
an assertion that no valid obligation
exists.”
|
|
Respondent has prior discipline. In 2006,
Respondent received a public reprimand for
violations of SCR 20:1.3 and SCR 20:1.16(d)
in two matters, and for failing to cooperate
in both matters. In 1996, Respondent
received a private reprimand for violations
of SCR 20:1.3, SCR 20:1.4(a) and SCR 20:1.15
(b) in a probate matter.
In accordance with SCR 22.09(3), Attorney
James Moldenhauer is hereby publicly
reprimanded.
|