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ATTORNEY disciplinary
proceeding. Attorney's license suspended.
¶1 PER CURIAM. In this decision we
address two separate attorney disciplinary
matters involving Attorney Robert J. Smead.
¶2 On June 12, 2008, the Office of
Lawyer Regulation (OLR) filed a complaint
against Attorney Smead alleging ten counts
of professional misconduct in three client
matters ("Smead I"). Following entry of
a
default judgment, the referee, Richard P.
Mozinski, issued a report recommending a 60-
day suspension plus restitution and costs.
¶3 The OLR filed a second complaint
against Attorney Smead on March 31, 2009.
This complaint alleged 15 counts of
professional misconduct involving four
client matters ("Smead II").
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¶4 The parties entered into a
stipulation regarding the allegations in
Smead II. Pursuant to the terms of the
stipulation, the parties ask that the court
suspend Attorney Smead for 60 days and
request that he be ordered to pay
restitution as set forth herein. The
parties do not seek imposition of costs in
Smead II. The stipulation in Smead II
does
not address whether the recommended
discipline should be imposed consecutive or
concurrent with the discipline recommended
in Smead I.
¶5 With respect to the misconduct
alleged in Smead I, we accept the
referee's
recommendation that this court suspend
Attorney Smead's license to practice law for
60 days, order Attorney Smead to pay
restitution as set forth herein, and impose
the costs of the proceeding. With respect
to the misconduct stipulated to in Smead
II,
we accept the amended stipulation and
suspend Attorney Smead's license to practice
law for 60 days and order restitution as set
forth herein. No costs will be imposed in
Smead II. As Smead I and Smead II
are
separate matters, the suspensions imposed
shall run consecutive to each other.
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¶6 Attorney Smead was admitted to
practice law in Wisconsin in 1998 and
practiced in Menasha, Wisconsin. On October
10, 2007, this court temporarily suspended
Attorney Smead's law license due to his
willful failure to respond or cooperate with
OLR investigations. On October 31, 2007,
the State Bar of Wisconsin suspended
Attorney Smead's license to practice law for
nonpayment of State Bar dues. Attorney
Smead's license remains suspended.
I. SMEAD I (CASE NO. 2008AP1467-
D)
¶7 The OLR alleged in its complaint
that Attorney Smead committed ten counts of
professional misconduct in three client
matters.
A. W.P. Matter (Counts 1 through
5)
¶8 On November 10, 2005, Attorney Smead
was retained by W.P. to represent him in a
divorce action. W.P. paid Attorney Smead a
retainer in the amount of $1,500.
¶9 Attorney Smead had an initial
consultation with W.P., some conversations
with W.P. and opposing counsel, and
negotiated and prepared a stipulated
temporary order. W.P. signed the document
which was then forwarded to his wife's
counsel.
¶10 Attorney Smead did not keep W.P.
informed of any relevant court dates and
legal issues about the custody and placement
of children under the age of 18 living with
him. Attorney Smead also did not keep W.P.
informed of property division work sheets or
discovery requests from W.P.'s wife.
¶11 Attorney Smead failed to return
W.P.'s telephone calls. In order to obtain
case status updates, W.P. visited Attorney
Smead's office hoping to see Attorney Smead
when he walked into the office.
¶12 On June 12, 2006, two days before a
court hearing requested by opposing counsel,
W.P. retained a new attorney because
Attorney Smead had not replied to discovery
requests.
¶13 On May 22, 2007, Attorney Smead
informed the OLR, "I must agree that [W.P.]
has every right to be disappointed in my
performance. I got overloaded with [another
attorney's] cases and my performance
suffered." Attorney Smead further stated he
did not keep particularly accurate records
of his time or his billing.
¶14 As of March 14, 2007, Attorney Smead
had failed to provide a refund of unearned
fees to W.P. but stated he hoped
to "eventually" give W.P. a full refund. In
responding to an OLR inquiry regarding
whether he held W.P.'s fee in trust until it
was earned, Attorney Smead stated, "It was
recently brought to my attention that
minimum fee retainers are not enforceable,
and I have started placing retainer fees
into trust until earned."
B. R.B. Matter (Counts 6 through
8)
¶15 In January 2006 R.B. contacted
Attorney Smead to represent him in his
divorce. On May 16, 2006, R.B. and his wife
entered into a stipulated settlement.
Attorney Smead was to prepare and file with
the court findings of fact, conclusions of
law and judgment, and a quit claim deed. In
January 2007 Attorney Smead advised R.B. he
had everything done and it would be sent out
in a week. Attorney Smead had no further
contact with R.B. R.B. later filed a
grievance against Attorney Smead.
¶16 On April 16, 2007, the OLR contacted
Attorney Smead by telephone to discuss
R.B.'s grievance. Attorney Smead stated the
order had been done a long time ago and he
did not know why it was not on record. On
April 19, 2007, Attorney Smead told the OLR
he filed the final paperwork the day before
and he would draft a deed related to the
divorce as soon as possible.
¶17 On April 19, 2007, 11 months after
the final hearing, and after the OLR
contacted Attorney Smead, a default judgment
in the R.B. case was finally entered.
C. D.B. Matter (Counts 9 and 10)
¶18 In June 2006 D.B. hired Attorney
Smead for representation in a criminal
matter. D.B. thereafter hired successor
counsel and requested Attorney Smead return
the advance fee D.B. paid to Attorney
Smead. D.B. later filed a grievance
concerning the fee dispute.
¶19 With respect to each of the three
client matters in Smead I, the OLR made
multiple attempts to obtain information from
Attorney Smead and Attorney Smead failed to
respond.
¶20 Eventually, Attorney Smead was
temporarily suspended and ultimately, the
OLR obtained a default judgment against
him. The referee incorporated the facts
alleged in the OLR complaint as his findings
and made the following conclusions of law:
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• By failing to respond to his
client's requests for information, Attorney
Smead violated former SCR 20:1.4(a) (Count
1).
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• By failing to hold W.P.'s $1,500 in
trust, Attorney Smead violated former SCR
20:1.15(b)(4) (Count 2).
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• By failing to refund unearned fees
to his client, Attorney Smead violated
former SCR 20:1.16(d) (Count 3).
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• By failing to respond to the OLR
grievance investigations, Attorney Smead
violated SCR 22.03(2) and SCR 22.03(6) via
SCR 20:8.4(h) (Counts 4, 7, and 9).
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• By failing to timely file affidavits
pursuant to SCR 22.26(1)(e), Attorney Smead
violated SCR 22.26(1)(e) via SCR 20:8.4(f)
(Counts 5, 8, and 10).
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• By failing to timely prepare and
file the necessary documents to conclude the
R.B. divorce proceeding and property
settlement, Attorney Smead violated SCR
20:1.3 (Count 6).
¶21 The referee carefully considered the
appropriate sanction. The referee noted he
had reviewed a number of applicable cases
involving neglect of client matters and
failure to cooperate with OLR investigations
and found applicable the matter of In re
Disciplinary Proceedings Against Kohl, 158
Wis. 2d 444, 462 N.W.2d 667 (1990) (60-day
suspension for neglect and failure to
cooperate). In Kohl, as here, there was
no prior discipline but there were multiple
instances of client neglect and subsequent
failures to respond to the OLR. The referee
considered Attorney Smead's lack of
cooperation with the OLR as an aggravating
factor in this matter.
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22 The referee recommended a 60-day
suspension. He recommended further that
Attorney Smead pay restitution to D.B. in
the amount of $100 and to the Wisconsin
Lawyers' Fund for Client Protection in the
amount of $750 relating to the W.P. matter.
¶23 As no appeal was filed, we review
this matter pursuant to SCR 22.17(2). We
adopt the referee's findings and
recommendations and direct that Attorney
Smead's license to practice law be suspended
for 60 days in connection with the above-
referenced misconduct. We further direct
that Attorney Smead shall pay restitution as
set forth in the referee's report, together
with payment of the costs of this proceeding
which total $1,204.33 as of April 24, 2009.
II. SMEAD II (CASE NO. 2009AP843-D)
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24 Nearly a year after the complaint in
Smead I was filed, the OLR filed a new
complaint alleging Attorney Smead committed
15 counts of professional misconduct
involving four client matters. The parties
entered into a stipulation regarding the
allegations in the Smead II complaint.
The
first stipulation was filed April 14, 2009.
However, this stipulation failed to address
the issue of restitution so this court
directed the parties to address the question
of restitution. In response to the court's
order, an amended stipulation was filed on
June 19, 2009.
A. Matter of E.K. and B.K. (Counts 1
through
5)
¶25 E.K. and S.P. operated a business
which closed in 2003. E.K. had purchased a
computer system for the business, and S.P.
used the computer system in a subsequent
venture without compensating E.K. In March
2003 E.K. and her husband, B.K., hired
Attorney Smead to pursue either recovery of
the computer system or compensation from
S.P. The fee agreement was not in writing,
but B.K. understood Attorney Smead would
charge 10 percent of any recovery as his
fee.
¶26 Attorney Smead did not, however,
file an action against S.P. Attorney Smead
failed to inform E.K. and B.K. of his
October 2007 license suspension, even though
B.K. spoke with Attorney Smead 30 to 40
times during the five years he represented
them. In 2008 Attorney Smead told B.K. his
caseload was too great and he would arrange
for another attorney to take over their
case. During the summer of 2008 Attorney
Smead stopped returning B.K.'s calls. B.K.
demanded return of the case materials, but
Attorney Smead failed to return them.
¶27 The OLR repeatedly tried to obtain
information from Attorney Smead regarding
this matter without success.
¶28 Attorney Smead stipulates his
mishandling of the E.K. and B.K. matter gave
rise to five counts of misconduct:
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• By failing to timely advance his
clients' interests, Attorney Smead violated
SCR 20:1.3.
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• By failing to have a written
contingent fee agreement, Attorney Smead
violated SCR 20:1.5(c).
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• By failing to give timely notice of
his inability to practice law and to inform
his clients of their need to seek legal
advice elsewhere, Attorney Smead violated
SCRs 22.26(1)(a) and (b).
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• By failing to surrender papers and
property belonging to the clients, Attorney
Smead violated SCR 20:1.16(d).
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• By failing to respond to the
grievance, Attorney Smead violated SCRs 22.03
(2) and 22.03(6) via SCR 20:8.4(h).
B. L.S. Matter (Counts 6 through
9)
¶29 On September 24, 2007, Attorney
Smead agreed to represent L.S. in a family
law matter, even though he knew his license
could be suspended as early as September 26,
2007.
¶30 L.S. had paid Attorney Smead advance
fees of $485. L.S. asked Attorney Smead to
file a contempt motion, but after 15 days
Attorney Smead still had not done so.
¶31 L.S. called Attorney Smead several
times. Attorney Smead advised L.S. his law
license had been suspended, but said it
would be reinstated in a few weeks and he
would then file the motion. In November
2007 Attorney Smead stopped returning L.S.'s
telephone calls, failed to pursue her case,
and failed to refund any of her advance
fee. L.S. hired another attorney to file
the motion.
¶32 The OLR repeatedly tried to obtain
information from Attorney Smead on this
matter without success.
¶33 Attorney Smead stipulates he
committed four counts of misconduct with
respect to the L.S. matter as follows:
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• Considering the timing of the order
to show cause and the date Attorney Smead
undertook L.S.'s case, coupled with Attorney
Smead's failure to promptly file the motion,
Attorney Smead violated SCR 20:1.3.
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• By failing to inform L.S. to seek
new counsel due to his license suspension,
by failing to return any unearned fee, and
by failing to protect his client's
interests, Attorney Smead violated 20:1.16
(d).
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• By failing to provide notice to L.S.
of his license suspension, Attorney Smead
violated SCRs 22.26(1)(a) and (b).
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• By failing to cooperate with the
OLR's investigation, Attorney Smead violated
SCRs 22.03(2) and 22.03(6) via SCR 20:8.4(h).
C. Matter of A.L. and S.M. (Counts 10
through 12)
¶34 On April 19, 2007, A.L. sent
Attorney Smead a check for $1,000 after her
son, S.M., contacted Attorney Smead about
representation in a criminal drug case.
Although there was no written fee agreement,
A.L. and S.M. understood a flat fee of
$2,000 would be required.
¶35 Attorney Smead entered an appearance
in S.M.'s case on April 26, 2007. Attorney
Smead also appeared at the arraignment and
filed a discovery demand. He also appeared
at a pretrial conference on October 5,
2007.
¶36 On November 21, 2007, one hour
before a court hearing, Attorney Smead
notified S.M. that he would be unable to
appear on his behalf that day because his
license had been temporarily suspended.
This was the first conversation between
Attorney Smead and S.M. regarding the
license suspension. Attorney Smead
recommended S.M. go to the court hearing
and, in time, Attorney Smead would be able
to represent him. Based on this
information, S.M. did not seek successor
counsel.
¶37 After the hearing, S.M. called
Attorney Smead asking for advice. Attorney
Smead said he would try to repay the $1,000
since he could no longer represent him.
After making this promise Attorney Smead
failed to return numerous phone calls from
S.M. On January 8, 2008, Attorney Smead
withdrew as counsel. Attorney Smead failed
to refund unearned fees.
¶38 The OLR repeatedly tried to obtain
information from Attorney Smead about this
matter without success.
¶39 Attorney Smead stipulates that his
conduct in the A.L./S.M. matter gave rise to
three violations:
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• By failing to give timely notice of
his inability to practice law and to inform
his client of the need to seek legal advice
elsewhere, Attorney Smead violated SCRs 22.26
(1)(a) and (b).
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• By failing to protect his client's
interests by not responding to S.M.'s
telephone inquiries subsequent to November
21, 2007, and by failing to take steps to
determine whether any portion of the fee
paid to him was unearned and if so, to
return the unearned portion of the fee,
Attorney Smead violated SCR 20:1.16(d).
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• By failing to respond to the OLR's
formal investigation, Attorney Smead
violated SCRs 22.03(2) and (6) via SCR 20:8.4
(h).
D. R.V. Matter (Counts 13 through
15)
¶40 R.V. hired Attorney Smead to
represent him in a felony drug case filed
March 30, 2007. R.V. paid Attorney Smead
$2,000 but there was no evidence of a
written fee agreement. According to R.V.,
Attorney Smead was "hired to go through and
finish two felonys [sic] for poss w/intent."
¶41 In April 2007 Attorney Smead was
present for the initial appearance and
waived the preliminary hearing. In June
2007 Attorney Smead appeared at R.V.'s
arraignment and, in September 2007, appeared
at the pretrial conference. R.V.'s plea
hearing was set for October 23, 2007.
¶42 Between September 5 and October 23,
2007, R.V. made several telephone calls to
Attorney Smead inquiring about a possible
deal with the district attorney, but
received no response.
¶43 At the October 23, 2007, plea
hearing, Attorney Smead appeared late and
told R.V. that his law license was
temporarily suspended but he would be
getting it back in a week or so. He had not
previously told R.V. that he had lost his
license and would not be able to appear in
court as scheduled. The hearing was
rescheduled for December 10, 2007.
¶44 Between October 23 and December 10,
2007, Attorney Smead did not respond to any
of R.V.'s calls. After October 23, 2007,
Attorney Smead's telephone was disconnected
and he failed to answer his cell phone.
¶45 On December 10, 2007, R.V. and his
family were in court but Attorney Smead
failed to appear. The circuit court judge
informed R.V. Attorney Smead was no longer
practicing law and gave R.V. three months to
hire a new attorney. After the December
2007 hearing, R.V. again called Attorney
Smead but received no response. On December
10, 2007, Attorney Smead was withdrawn from
the case; successor counsel entered an
appearance on January 24, 2008.
¶46 The OLR made repeated attempts to
obtain information from Attorney Smead about
this matter without success. The Wisconsin
Lawyers' Fund for Client Protection
reimbursed R.V. in the amount of $2,000.
¶47 Attorney Smead stipulates his
misconduct with respect to R.V.'s
representation gave rise to three
violations:
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• By failing to give R.V. notice of
his license suspension prior to the date of
the hearing, by failing to keep his client
reasonably informed, and by failing to
respond to reasonable requests for
information, Attorney Smead violated SCRs
20:1.4(a)(3) and (4).
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• By failing to give R.V. notice of
his continued inability to represent him, by
failing to respond to R.V.'s phone calls, by
failing to give notice that he would not be
appearing for a hearing scheduled on
December 10, 2007, and by failing to
otherwise protect R.V.'s interests, Attorney
Smead violated SCR 20:1.16(d).
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• By failing to cooperate with the
OLR's formal investigation, Attorney Smead
violated SCRs 22.03(2) and 22.03(6) via SCR
20:8.4(h).
¶48 In the initial stipulation, the
parties agreed that a 60-day suspension was
warranted and that costs should not be
imposed. Although the OLR's complaint
sought restitution, the initial stipulation
made no provision for restitution.
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¶49 On June 19, 2009, the OLR filed an
amended stipulation. In the amended
stipulation the parties provide that as a
condition of reinstatement Attorney Smead
agrees to pay restitution to A.L. in the
amount of $1,000, to L.S. in the amount of
$485, and to the Wisconsin Lawyers' Fund for
Client Protection in the amount of $2,000
for the R.V. matter.
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¶50 Restitution is appropriate in these
matters because there are ascertainable
restitution amounts and fee disputes, the
funds at issue are in the attorney's
control, the grievants' or respondents'
rights in a collateral matter will not be
affected, and no funds to be restored
constitute incidental or consequential
damages.
¶51 The amended stipulation is submitted
to the court pursuant to SCR 22.12. We
approve the amended stipulation and hereby
adopt the stipulated facts, conclusions of
law, and discipline. Accordingly, Attorney
Smead's license to practice law shall be
suspended for 60 days and we order
restitution as set forth herein. No costs
are to be imposed in this matter.
¶52 Since Smead I and Smead II
present
two completely discrete and separate
disciplinary matters, the two 60-day
suspensions will be consecutive, not
concurrent. As Attorney Smead is already
suspended, the suspensions ordered herein
shall commence immediately.
¶53 IT IS ORDERED that with respect to
the matter of OLR v. Smead, No.
2008AP1467-D
(Smead I), the license of Robert J.
Smead to
practice law in Wisconsin is suspended for a
period of 60 days, effective the date of
this order.
¶54 IT IS FURTHER ORDERED that within 60
days of the date of this order, Robert J.
Smead shall pay restitution to D.B. in the
amount of $100, and to the Wisconsin
Lawyers' Fund for Client Protection for the
W.P. matter in the amount of $750, as
recommended in the referee's report filed in
Smead I. If the restitution is not paid
within the time specified and absent a
showing to this court of his inability to
pay the restitution within that time, Robert
J. Smead's license to practice law in
Wisconsin shall remain suspended until
further order of the court.
¶55 IT IS FURTHER ORDERED that within 60
days of the date of this order, Robert J.
Smead shall pay to the Office of Lawyer
Regulation the costs of the proceeding in
Smead I. 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 Robert J.
Smead to practice law in Wisconsin shall
remain suspended until further order of the
court.
¶56 IT IS FURTHER ORDERED that with
respect to the matter of OLR v. Smead,
No.
2009AP843-D (Smead II), the license of
Robert J. Smead to practice law in Wisconsin
is suspended for a period of 60 days to run
consecutive to the discipline imposed in
Smead I.
¶57 IT IS FURTHER ORDERED that within 60
days of the date of this order, Robert J.
Smead shall pay restitution to A.L. in the
amount of $1,000, to L.S. in the amount of
$485, and to the Wisconsin Lawyers' Fund for
Client Protection in the amount of $2,000
for the R.V. matter. If the restitution is
not paid within the time specified and
absent a showing to this court of his
inability to pay the restitution within that
time, Robert J. Smead's license to practice
law in Wisconsin shall remain suspended
until further order of the court.
¶58 IT IS FURTHER ORDERED that no costs
will be imposed in Smead II.
¶59 IT IS FURTHER ORDERED that all
restitution is to be completed prior to
paying any costs to the Office of Lawyer
Regulation.
¶60 IT IS FURTHER ORDERED that Robert J.
Smead shall comply with the requirements of
SCR 22.26 pertaining to activities following
suspension if he has not already done so.
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