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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report
and recommendation of Referee Timothy L.
Vocke that Attorney Douglas Batt be publicly
reprimanded for professional misconduct and
that Attorney Batt pay the costs of this
proceeding. The Office of Lawyer Regulation
(OLR) filed a four-count complaint against
Attorney Batt alleging misconduct with
respect to his representation of his former
client, L.G. The referee concluded the
evidence supported the allegations that
Attorney Batt failed to consult with L.G.
regarding the means by which to appeal,
contrary to SCR 20:1.4(a)(2) (Count 2), and
that Attorney Batt failed to keep his client
reasonably informed about the status of a
matter, contrary to SCR 20:1.4(a)(3) (Count
3).
¶2 The referee determined the evidence
failed to support the allegation that
Attorney Batt failed to abide by his
client's decision to file an appeal (Count
1). The referee also concluded the evidence
was insufficient to show Attorney Batt
violated his duty to act with reasonable
diligence by failing to file a timely appeal
(Count 4). The referee recommended
dismissal of Counts 1 and 4.
¶3 Upon our independent review, we
approve the referee's findings and
conclusions and adopt them. No appeal of
the referee's report and recommendation has
been filed. The referee's findings and
conclusions are supported by the record. We
conclude Attorney Batt's professional
misconduct warrants a public reprimand. We
order Attorney Batt to pay the full costs of
this disciplinary proceeding.
¶4 Attorney Batt was admitted to the
practice of law in Wisconsin in 1990. He
practices in the Milwaukee area. In 2007
Attorney Batt was publicly reprimanded for
trust account violations. See Public
Reprimand of Douglas Batt, No. 2007-04.
¶5 The current matter involves Attorney
Batt's representation of L.G. in his
probation revocation proceedings. Attorney
Batt attended L.G.'s probation revocation
hearing on August 8, 2007. In a decision
dated August 10, 2007, the administrative
law judge revoked L.G.'s probation. On the
same day, a copy of the decision was sent to
Attorney Batt with a letter stating the time
limit to file an administrative appeal was
August 24, 2007. L.G. also received a copy
of the decision and was notified of the time
limit for filing an appeal.
¶6 Following a conversation with L.G.
after the appeal time had expired, Attorney
Batt sent a letter to the division of
hearings and appeals requesting an extension
to file an appeal. The administrator denied
the extension, noting he had no authority to
enlarge the time for an administrative
appeal. The referee found that Attorney
Batt did not inform L.G. the administrator
had denied his extension request.
¶7 Attorney Batt did not file a timely
appeal on behalf of L.G. The referee found
credible Attorney Batt's testimony at the
disciplinary hearing that L.G. did not
request an appeal to be filed before the
time limit had expired. The referee
determined the OLR failed to show that
Attorney Batt was under any obligation to
file an appeal or a petition for a writ of
certiorari, absent a request from his client.
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¶8 The referee concluded the evidence
established violations as alleged in Counts
2 and 3. The referee found that Attorney
Batt failed to consult with his client
regarding the means by which the appeal of
the adverse probation revocation decision
was to be accomplished or otherwise advise
his client of available options. The
referee also determined that by failing to
notify L.G. that the extension request had
been denied, Attorney Batt failed to keep
his client reasonably informed regarding the
status of the matter.
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¶9 As to Count 1, the referee concluded
the OLR failed to show L.G. had made a
timely request to appeal. With respect to
Count 4, the referee further concluded the
OLR failed to show that the scope of
Attorney Batt's representation included the
filing of an administrative appeal.
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¶10 Turning to the issue of discipline,
the referee found the most aggravating
factor was Attorney Batt's previous public
reprimand. Another aggravating factor the
referee found was that client communication
is a basic and significant duty. In
mitigation, the referee observed Attorney
Batt's previous discipline involved totally
unrelated trust account violations.
Additionally, the referee doubted Attorney
Batt's misconduct caused L.G. any actual
harm, noting that L.G. had been "in deep
trouble long before he ran into [Attorney
Batt]. It's unlikely that there's anything
that Mr. Batt could have done at that
hearing to get him out of trouble or
subsequently. Based upon the testimony
today, there was no merit to an appeal."
Therefore, the referee concluded Attorney
Batt's misconduct warranted a public
reprimand and he should bear the costs of
the proceeding.
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¶11 A referee's findings of fact will
not be overturned unless clearly erroneous.
See In re Disciplinary Proceedings
Against
Carroll, 2001 WI 130, ¶29, 248 Wis. 2d
662,
636 N.W.2d 718. We independently review the
referee's legal conclusions. Id.
Referee
Vocke's findings and conclusions are
unchallenged and supported by the record.
We therefore approve and adopt the referee's
findings and conclusions regarding Attorney
Batt's misconduct.
¶12 It is our independent responsibility
to determine appropriate discipline.
See In
re Disciplinary Proceedings Against Reitz,
2005 WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d
894. We must consider the seriousness of
the misconduct, the need to protect the
public, courts, and legal system from the
repetition of misconduct, the need to
impress upon the attorney the seriousness of
the misconduct, and the need to deter other
attorneys from engaging in similar
misconduct. See In re Disciplinary
Proceedings Against Arthur, 2005 WI 40,
¶78,
279 Wis. 2d 583, 694 N.W.2d 910. We are
satisfied the record supports the referee's
recommendation of a public reprimand.
¶13 We also impose full costs. Supreme
court rule 22.24 governs the assessment of
costs in this proceeding. Under SCR 22.24
(1m), the court's general policy is to
impose costs on the respondent, Attorney
Batt. To award less than full costs, the
court must find "extraordinary
circumstances." Id. Attorney Batt has
not
objected to the costs and has not claimed
extraordinary circumstances to justify the
imposition of less than full costs. We
conclude Attorney Batt shall bear the entire
costs of the proceedings.
¶14 IT IS ORDERED that Douglas Batt is
publicly reprimanded as discipline for
professional misconduct.
¶15 IT IS FURTHER ORDERED that within 90
days of the date of this order, Douglas Batt
pay to the Office of Lawyer Regulation the
costs of this proceeding. If costs are not
paid within the time specified and absent a
showing of his inability to pay, Douglas
Batt's license to practice law in Wisconsin
shall be suspended until further order of
the court.
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