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A man hired Atty. Christopher S. Carson to
represent him as the respondent in a divorce
case that involved the placement of minor
children. Early in the case, and before any
child placement order had been issued, Mr.
Carson filed a Petition to Enforce Physical
Placement Order. The Petition to Enforce
Physical Placement Order is a statutory form
and relates to Wis. Statute Sec. 767.242
(3). The first paragraph of the statutory
form states:
1a. I was awarded periods of physical
placement of (name of child/ren)******
by judgment or order of the
Circuit Court or Family Court Commissioner
of****** County. A copy of the placement
provisions is attached.
The purpose of the form is to provide relief
to parties who had been awarded periods of
physical placement of children and
subsequently had periods of physical
placement denied. On the petition, Mr.
Carson inserted the names of the parties’
two minor children, the name of the county
in which the divorce case was filed, and
checked a box indicating that the original
order or judgment did not set specific times
for physical placement.
The following week, the presiding
circuit court judge wrote to Mr. Carson and
stated there that was no record of either
party having been awarded periods of
physical placement. The court stated that
Mr. Carson had not attached a copy of the
placement provisions that he alleged were
being violated; that Carson had filed an
enforcement action that appeared to be
without basis; and that Carson may have
violated Wis. Stat. Sec. 802.05(2), by
filing a pleading that was not true. The
court asked Mr. Carson to reconsider his
position.
Mr. Carson replied by letter and
stated that neither Wis. Stat. Sec. 767.242
(3) nor the petition required him to attach
a copy of any placement provisions that he
believed were being violated. Mr. Carson
asserted that the petitioner had violated
orders imposed by the Wisconsin Legislature
relating to concealing minor children.
The parties and their counsel
subsequently attended a temporary order
hearing before a county family court
commissioner, who entered a temporary order
granting periods of physical placement to
both parties. On that day, the family court
commissioner warned Mr. Carson that the
Petition to Enforce Physical Placement Order
could not be filed before an initial hearing
and that Carson should withdraw the petition.
During the following week, the
circuit court judge held a hearing on Mr.
Carson’s Petition to Enforce Physical
Placement Order. During the hearing, Mr.
Carson asserted that the wife had violated
placement orders imposed by the Wisconsin
Legislature. Mr. Carson said he would
dismiss the petition but then recanted when
adverse counsel said she would seek attorney
fees. The hearing was adjourned to a new
date. Following the second court date, the
circuit court found Mr. Carson’s petition to
be frivolous and awarded attorney fees of
over $900 against Carson. Mr. Carson
appealed the sanction to the Court of
Appeals, which affirmed the circuit court
order, found the appeal to be frivolous, and
remanded the case to circuit court for a
determination of costs and fees. The
circuit court awarded fees of almost $8,500
against Mr. Carson. That decision is on
appeal.
Mr. Carson told disciplinary
authorities that he filed the petition
because the wife had been withholding
placement of the children from his client.
Mr. Carson told disciplinary authorities
that he was in such haste to file the
petition that he did not notice a phrase on
the petition stating that a copy of the
prior placement judgment or order was
attached. Mr. Carson also stated that this
was the first instance in which he had filed
such a petition and that he filed it in an
attempt to bypass the family court
commissioner and proceed in circuit court.
Mr. Carson further stated that he would have
attached the order to show cause to the
petition to substantiate the violation and
that the failure to attach the order to show
cause was an oversight. Mr. Carson was in
error, however, because during the first
hearing in circuit court, he told the court
that there was no specific order that had
awarded his client periods of placement and
that the order was an order of the
legislature.
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Mr. Carson violated SCR 20:1.1 when he filed
the statutory form, “Petition to Enforce
Physical Placement Order,” which plainly
required that a copy of a previous judgment
or order of a circuit court or family court
commissioner awarding physical placement of
children be attached to the form, when no
such previous judgment or order existed.
SCR 20:1.1 states, “A lawyer shall provide
competent representation to a client.
Competent representation requires the legal
knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.”
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When he continued to prosecute a Petition to
Enforce Physical Placement Order even after
a circuit court judge and a family court
commissioner warned Carson that the Petition
lacked any meritorious basis upon which to
proceed and when Carson could not make a
good faith argument for modification of the
existing law, Mr. Carson violated SCR 20:3.1
(a)(1), which states, “In representing a
client, a lawyer shall not: “knowingly
advance a claim or defense that is
unwarranted under existing law, except that
the lawyer may advance such claim or defense
if it can be supported by good faith
argument for an extension, modification or
reversal of existing law.”
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In November, 2006, Mr. Carson submitted a
brief to the Court of Appeals in which he
stated in the Statement of the Case that the
wife had withheld nearly all visitation of
the children from the husband prior to the
first temporary hearing. Throughout the
remainder of the appellate brief, however,
Carson consistently stated (in at least four
instances) that the wife had withheld all
placement. When he repeatedly stated in the
brief that the adverse party had withheld
all placement of the minor children until
after the first temporary hearing, when, in
fact, Carson knew that his client had
received some placement with the children
prior to the first temporary hearing, Mr.
Carson violated former SCR 20:3.3(a)(1),
applicable to conduct occurring prior to
July 1, 2007, which states, “A lawyer shall
not knowingly make a false statement of fact
or law to a tribunal.” In 2008, Mr. Carson
received a private reprimand for other
misconduct.
In accordance with SCR 22.09(3), Attorney
Christopher S. Carson is hereby publicly
reprimanded.
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