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Tim Osicka (“Osicka”) is a Wisconsin-
licensed attorney whose State Bar
identification number is 1006294. Osicka
practices law in Schofield, Wisconsin.
Osicka was first licensed to practice law in
Wisconsin on September 24, 1986.
FIRST MATTER
On January 11, 2007, a man filed
a pro se divorce petition in Marathon
County
Circuit Court. Unable to reach a mutual
agreement, both the man and his wife hired
attorneys. On May 24, 2007, the man signed
a retainer agreement and paid Osicka a fee
of $1,500.00 for legal representation in his
divorce case. The retainer agreement stated
that the initial retainer of $1,500.00 was
nonrefundable and that the billing rate was
$150.00 per hour. Osicka deposited the
retainer into his operating account and
entered an appearance as the man’s attorney
on May 25, 2007.
On May 26, 2007, Osicka sent a
discovery request to opposing counsel. A
key issue in the divorce proceeding
concerned the amount and nature of waste in
the marital estate. On or about June 11,
2007, Osicka received and reviewed the
discovery information provided. The more
than 130 pages of information included the
adverse party’s financial disclosure
statement and her tax returns for the years
2000 through 2006. Significantly, the
financial information disclosed gambling
income, gambling losses in excess of $50,000
and farm losses in excess of $16,000.
Following receipt of the discovery
responses, Osicka met briefly with his
client prior to a June 15, 2007 Temporary
Order hearing to discuss the financial
disclosure information. However, Osicka did
not provide his client a copy of the
discovery responses, nor did Osicka discuss
in detail with his client the significance
of the marital waste disclosed. According
to Osicka, the issues associated with
marital waste were not critical for purposes
of the Temporary Order hearing. From the
client’s standpoint, however, the financial
information disclosed by his spouse was
highly significant and the failure by Osicka
to inform him of the information undermined
his case.
On July 26, 2007, opposing counsel
forwarded interrogatories to Osicka, who did
not forward the interrogatories to his
client until August 20, 2007. Thereafter,
the client was unable to meet with Osicka to
finalize his responses to the
interrogatories. While Osicka claims he was
ill during this time period, the client
received no assurances that the
interrogatories would be handled in a timely
and appropriate fashion.
On August 13, 2007, Osicka and
opposing counsel agreed to jointly retain a
real estate appraiser to appraise two
properties owned by Osicka’s client. While
it appears Osicka discussed the possibility
of an appraisal with his client in general
terms, Osicka did not provide him a copy of
the letter setting forth the terms of the
appraisal. Thereafter, the client was
surprised to be contacted by an appraiser
without warning and in a manner inconsistent
with his understanding of the attorneys’
agreement.
On September 11, 2007, the client
terminated Osicka’s services and requested a
refund. Osicka did not provide a refund,
believing he had earned the entire fee, nor
did Osicka provide an accounting to the
client.
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Despite language in the retainer agreement
stating that the fee was “non-refundable,”
the $1,500 paid by the client constituted an
advance fee and was not based upon
availability to perform services.
Accordingly, Osicka’s failure to deposit the
client’s advance fee into a client trust
account violated SCR 20:1.15(b)(4),
effective prior to July 1, 2007, which
stated, “Unearned fees and advanced payment
of fees shall be held in trust until earned
by the lawyer, and withdrawn pursuant to SCR
20:1.15(g). . . .”
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By failing to communicate fully and
effectively with his client regarding the
nature and extent of discovery received in
the course of litigation, as well as failing
to keep the client fully apprised of
developments in the case, Osicka 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” as well
as current SCR 20:1.4(a)(2) and (a)(3),
which state, “A lawyer shall. . . [r]
easonably consult with the client about the
means by which the client’s objectives are
to be accomplished . . .” and “A lawyer
shall. . .[k]eep the client reasonably
informed about the status of a
matter. . . .”
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Upon receiving notice of termination, Osicka
failed to either refund the unearned portion
of the advance fee or provide an accounting
to the client, in violation of 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 . . .
refunding any advance payment of fee or
expense that has not been earned or
incurred . . . .”
SECOND MATTER
Osicka’s license to practice law was
suspended from October 31, 2008 through
November 24, 2008, for nonpayment of
mandatory dues to the State Bar of Wisconsin
(“State Bar”) and for failure to submit his
trust account certification to the State
Bar.
On November 11, 2008, Osicka entered
an appearance in a felony case in Marathon
County; from November 1, 2008, through
November 24, 2008, Osicka, as the
plaintiff’s attorney in a civil lawsuit,
filed motions and appeared in court in
Oneida County; and on November 18, 2008,
Osicka entered an appearance in a Marathon
County paternity case. In addition, Osicka
acknowledged that during his suspension he
appeared in a pre-trial matter in Marathon
County on November 3, 2008; worked on a
stipulation in a Brown County family law
matter on November 4, 2008; met with a
client’s mother on November 11, 2008; and
met with another client to prepare a
stipulation on November 10, 2008.
Although Osicka’s law license was
suspended effective October 31, 2008,
because of funding considerations, Osicka
did not attempt to pay his dues until
November 2008. Osicka asserted he forwarded
a check for his dues and his signed trust
account certification to the State Bar
office on November 3, 2008. There was no
indication that the State Bar received
Osicka’s letter and the check was not
negotiated.
In 2008, the State Bar sent Osicka
dues statements in May, August and
September. The letters were mailed to
Osicka’s address of record with the State
Bar, which is 5209 Schofield Avenue,
Schofield, Wisconsin, 54476.
On November 21, 2008, Osicka
contacted the State Bar and paid his dues by
credit card. Osicka also signed and
forwarded his trust account certification to
the State Bar. His law license was
reinstated on November 24, 2008.
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By engaging in the practice of law between
October 31, 2008 and November 21, 2008, when
his law license was suspended for nonpayment
of State Bar dues, Osicka violated SCR 10.03
(6), that states, “If the annual dues or
assessments of any member remain unpaid 120
days after the payment is due, the
membership of the member may be suspended in
the manner provided in the bylaws; and no
person whose membership is so suspended for
nonpayment of dues or assessments may
practice law during the period of the
suspension.” SCR 10.03(6) is 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.”
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Osicka has two prior public reprimands,
imposed in 2002 and in 2009.
In accordance with SCR 22.09(3), Attorney
Tim Osicka of Schofield is hereby publicly
reprimanded.
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