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The Court entered the following order on
this date:
The Office of Lawyer Regulation (OLR) has
appealed a referee's report and
recommendation finding that the OLR failed
to meet its burden of proof that Attorney
Kyle H. Torvinen violated SCR 20:1.9(a), via
SCR 20:1.10(a), and SCRs 20:5.1(b) and (c).
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A referee's findings of fact will not be set
aside unless they are clearly erroneous.
Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings
Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747. We conclude that the
referee's findings of fact are not clearly
erroneous and we also uphold the referee's
conclusions of law that Attorney Torvinen's
conduct did not violate any ethical rule.
Consequently, we dismiss the OLR's
complaint, without costs.
Attorney Torvinen was admitted to the
practice of law in Wisconsin in 1993 and
practices in Superior with the firm of
Knudson, Torvinen, Jones & Kirk, S.C. He
has no prior disciplinary history.
In December 2006 Mary and Tony Chavez
telephoned Attorney Torvinen's law firm.
The Chavezes had not previously been clients
of the firm but were looking for a form to
use to purchase a building in Superior to
house a hairdressing salon. Attorney
Parrish Jones returned the Chavezes' phone
call. Attorney Jones initially referred the
Chavezes to a stationery store where legal
forms were available. Attorney Jones
subsequently prepared a first draft of a
form that would be the starting point for
the Chavezes to continue their purchase
discussions with Robert Reuhl, the owner of
the building. Thinking the work for which
he had been retained had been completed, on
December 31, 2006, Attorney Jones billed the
Chavezes for 1.7 hours of time, $229.50, and
closed his file.
Attorney Jones had nothing to do with
contacting Reuhl, negotiating with him, or
presenting him with the offer to purchase.
Sometime after January 15, 2007, the
Chavezes contacted Attorney Jones asking
about a remedy for the closing not taking
place as scheduled. Attorney Jones
suggested trying to schedule a new closing
date. A closing date was set for February
19, 2007. On February 15, 2007, the
Chavezes contacted Attorney Jones saying
that because Reuhl was going to have an
attorney representing him at the closing,
the Chavezes thought they should also have
an attorney present to represent them.
Attorney Jones attended the closing with the
Chavezes on February 19, 2007. On March 15,
2007, Attorney Jones billed the Chavezes for
3.7 hours to prepare for the closing, attend
the closing, and see to the proper filing of
the warranty deed and real estate transfer
return. Attorney Jones considered the file
closed and his representation of the
Chavezes completed.
At the time of the closing, neither Attorney
Jones nor the Chavezes had legal or actual
notice of a nearly ten-year-old lease that
affected some of the parking spaces on the
premises the Chavezes were purchasing. The
parking lot lease was not brought up at the
closing and the lease had never been
recorded. The Chavezes apparently learned
about the parking lot lease after the
closing, shortly after they took possession
of the property. Attorney Kenneth Knudson,
a partner of Attorney Torvinen, had drafted
the lease agreement in 1997 between Reuhl,
as lessor, and John Lange, as lessee. The
lease granted Lange the non-exclusive use of
some parking spaces adjacent to his
chiropractic business for ten years, running
from January 1, 1998, through December 31,
2007. Lange subsequently sold his
chiropractic building, including the rights
under the parking lease, to his son-in-law,
Dane Laughlin. After the Chavezes purchased
the building, they began parking in spaces
that had been leased to Dr. Laughlin's
business. It was at that point that Dr.
Laughlin informed the Chavezes about the
lease.
After the Chavezes learned about the parking
lot lease, they contacted Attorney Jones
again. When Attorney Jones learned that his
senior partner, Attorney Knudson, had been
involved in drafting the 1997 lease,
Attorney Jones advised the Chavezes that he
could not assist them and told them to
contact another lawyer for help with the
lease.
The Chavezes and Laughlin had discussions
about the lease and the use of the parking
spaces, but were unable to resolve their
differences. In late March of 2007 the
Chavezes built a ten-foot wooden fence along
the boundary line of their property. In
frustration about the situation, Laughlin
contacted Attorney Torvinen, his friend and
counselor at the law firm, about advice on
how to make progress with the Chavezes over
the lease problem and the fence. Attorney
Torvinen told Laughlin that the matter
should be resolved in a neighborly fashion.
At Laughlin's request, Attorney Torvinen
prepared a draft of a letter for Laughlin to
use in communicating with the Chavezes. The
Chavezes concluded the lease was no longer
valid and they refused to remove the fence
as requested by Laughlin.
Laughlin asked Attorney Torvinen to proceed
with enforcing the lease. On August 10,
2007, Attorney Torvinen sent the Chavezes a
letter indicating that his law firm was
representing the Lange/Laughlin chiropractic
clinic. The letter requested an amicable
resolution of the dispute. Attorney
Torvinen belatedly learned that Attorney
Jones had represented the Chavezes at the
real estate closing earlier in the year.
The firm's members decided they must
consider whether there was a conflict of
interest in representing their long-term
clients, Lange and Laughlin, against the
Chavezes on the fence issue.
Attorney Johanna Kirk, an associate at
Attorney Torvinen's firm, was directed to
review the Chavez real estate closing file
to search for any conflict of interest
issues. Members of the firm had numerous
discussions and meetings about the conflict
of interest issue. After extensive
discussions, firm members agreed that
representing the Chavezes at the real estate
closing was not "the same matter" as the
fence dispute and was also
not "substantially related" to the fence
dispute. Firm members also concluded that
Attorney Jones' representation of the
Chavezes at the closing was minimal and was
a reasonable limited scope representation as
requested by the Chavezes.
Attorney Torvinen directed Attorney Kirk to
proceed with enforcing the lease provisions.
Attorney Kirk prepared a summons and
complaint and filed the lawsuit against the
Chavezes on October 4, 2007. Attorney Jamy
Johansen appeared as the attorney of record
for the Chavezes in this suit. Attorney
Johansen wrote to Attorney Kirk raising the
conflict of interest issue.
The grievance against Attorney Torvinen was
filed in late 2007. Attorney Torvinen took
over handling the lawsuit against the
Chavezes in mid-December 2007 from Attorney
Kirk. On more than one occasion between mid-
October 2007 and late-January 2008, Attorney
Johansen demanded the Torvinen law firm
withdraw from representation of
Lange/Laughlin due to the firm's prior
representation of the Chavezes. In mid-
December 2007 Attorney Torvinen made the
decision to withdraw from the suit but after
speaking with Dr. Laughlin, Attorney
Torvinen changed his mind. Dr. Laughlin
said starting over with new counsel would
not be cost-effective and that Attorney
Johansen, by his threats and manipulation of
the system, would have substantially won on
behalf of his clients. Attorney Torvinen
advised the OLR that at the request of his
client, he was not withdrawing from the
lawsuit. After a telephone conversation
with OLR Director Keith Sellen in January
2008, Attorney Torvinen and his firm did
withdraw from representation. They assisted
Dr. Laughlin in finding new counsel. The
lawsuit was eventually settled by the
Chavezes paying Dr. Laughlin $750.
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On August 4, 2009, the OLR filed a complaint
against Attorney Torvinen alleging that he
violated SCR 20:1.9(a), via SCR 20:1.10(a),
by representing Lange/Laughlin in
negotiating on their behalf adversely to the
Chavezes without obtaining the Chavezes'
informed consent in writing, when the
representation was adverse to the Chavezes,
who Attorney Jones had previously
represented in a substantially related
matter. The complaint also alleged that
Attorney Torvinen violated SCRs 20:5.1(b)
and (c) by directing, ratifying, and
supervising Attorney Kirk's representation
of Lange/Laughlin in violation of SCR 20:1.9
(a), via SCR 20:1.10(a).
The Honorable James R. Erickson was
appointed referee. A hearing was held
before the referee on November 12, 2009.
Referee Erickson issued his report and
recommendation on November 24, 2009. The
referee concluded the OLR failed to meet its
burden of proof that Attorney Torvinen
violated any supreme court rules. The
referee concluded that Attorney Jones'
representation of the Chavezes in drafting
an offer to purchase "was a clear case of a
limited scope representation which concluded
when Attorney Jones sent his billing on
December 31, 2006, and at which time the
file was closed." The referee also
concluded that Attorney Jones'
representation of the Chavezes at the real
estate closing was likewise a very limited
scope representation that had been requested
by the Chavezes on February 15, 2007. The
referee said limited scope legal
representations are permitted by Wisconsin's
rules of professional conduct and should be
encouraged.
The referee concluded that the real estate
closing and the lawsuit over the fence were
not the same matter nor were they
substantially related. The referee said:
Despite the modesty of the legal problem,
Respondent and the law firm spent untold
hours in time and effort in defending the
principles they strongly believed in. It
would have been very expeditious for them
to "throw in the towel" by conceding and
accepting what Respondent and the law firm
strongly believed was improper and
unjustified discipline. They were justified
in not doing that.
Respondent and his law firm, in
my
opinion, proceeded with careful and
conscientious deliberations showing care and
concern for all of their clients. They did
their best to even consider the local
friendly business environment and attempted
to amicably resolve the minor legal problem
that somehow raged out of proportion. I
consider it all to be the equivalent of the
old proverbial "tempest in a teapot." I
think Respondent Torvinen and the law firm
should be commended rather than criticized
and disciplined in this OLR prosecution.
The legal system is in great need of more
problem solving attorneys rather than more
litigators. Respondent and his law firm
attempted to be ethical and reasonable
problem solvers to the best of their
abilities.
The OLR appealed, arguing the referee erred
in concluding that Attorney Torvinen's
representation of Lange/Laughlin did not
amount to a conflict of interest under SCR
20:1.9(a). Attorney Torvinen asserts that
the referee correctly found that he
committed no ethical violation and that his
representation of Lange/Laughlin was not
the "same" nor a "substantially related"
matter as the real estate closing handled by
Attorney Jones.
From our independent review of the record,
we agree with the referee that the OLR
failed to establish by clear and substantial
evidence that Attorney Torvinen violated any
ethical rule. We uphold the referee's legal
conclusion that the real estate closing and
the lawsuit over the fence were not the same
matter nor were they substantially related.
In addition, we note that the preamble to
the rules of professional conduct for
attorneys states:
[9] In the nature of law practice,
however,
conflicting responsibilities are
encountered. Virtually all difficult
ethical problems arise from conflict between
a lawyer's responsibilities to clients, to
the legal system and to the lawyer's own
interest in remaining an ethical person,
while earning a satisfactory living. The
Rules of Professional Conduct often
prescribe terms for resolving such
conflicts. Within the framework of these
rules, however, many difficult issues of
professional discretion can arise. Such
issues must be resolved through the exercise
of sensitive professional and moral judgment
guided by the basic principles underlying
the rules. These principles include the
lawyer's obligation zealously to protect and
pursue a client's legitimate interests,
within the bounds of the law, while
maintaining a professional, courteous and
civil attitude toward all persons involved
in the legal system.
We agree with the referee that Attorney
Torvinen exercised sensitive professional
and moral judgment, and maintained a
professional, courteous and civil attitude
toward all parties involved in the parking
lot dispute. Attorney Torvinen and his law
firm spent a great deal of time discussing
whether a conflict of interest existed.
They concluded there was no conflict.
Ultimately, Attorney Torvinen and his firm
did withdraw from representing
Lange/Laughlin and assisted them in finding
substitute counsel. Based upon the
foregoing,
IT IS ORDERED that the OLR's complaint is
dismissed, without costs.
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