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Jane Krueger Smith (“Krueger Smith”), is a
Wisconsin-licensed attorney whose State Bar
identification number is 1007778. Krueger
Smith was admitted to practice in Wisconsin
on June 19, 1981. Krueger Smith engages in
the private practice of law at the Law
Offices of Jane Krueger Smith, 316 Chicago
Street, P.O. Box 45, Oconto, Wisconsin 54153.
Sometime in the summer of 2008, a husband
and wife hired Krueger Smith to represent
them in an attempt to adopt the minor
daughter of the couple’s niece. As part of
this representation, Krueger Smith was also
to obtain a Termination of Parental Rights
from the minor child’s father, as well as
from the niece. On August 26, 2008, Krueger
Smith, the wife client and the niece met to
discuss the matter and the need to contact
the birth father in an effort to obtain his
consent to the termination of his parental
rights. The three further discussed the
possible need to petition for an involuntary
termination of the birth father’s parental
rights in the event his consent could not be
obtained. The husband and wife entered into
a written fee agreement and paid Krueger
Smith a $600.00 advance on fees.
At the August 26, 2008 meeting, Krueger
Smith was informed that the birth father was
on probation. Krueger Smith then called the
probation office in Oconto County and was
informed that the birth father was serving
his probation in Green Bay. The probation
office gave Krueger Smith a Green Bay
address they had for the birth father.
Krueger Smith also learned that the birth
father was substantially in arrears for
child support. In the period from September
through December, 2009, Krueger Smith sent
two letters to the birth father at the Green
Bay address given to her by the Oconto
County probation office and prepared rough
drafts of Termination of Parental Rights
forms. Krueger Smith did not receive any
reply to the letters sent to the birth
father. On February 4, 2009, the husband
client phoned Krueger Smith to express the
couple’s frustration regarding the lack of
any progress in locating the birth father.
On February 5, 2009, Krueger Smith contacted
the Brown County Probation and Parole office
and was given the name and telephone number
of the birth father’s probation officer.
She then called the probation officer and
was informed of the birth father’s current
address in Green Bay and his cell phone
number. Krueger Smith then called the birth
father’s cell phone, left a voice mail
message and soon received a call back from
the birth father. Initially the birth
father did not want to relinquish his
parental rights. However, he was willing to
consider a termination if it could be
coupled with a forgiveness of his child
support arrears. Krueger Smith informed her
clients of the birth father’s desires, but
also informed them that she could not
negotiate with the State on the birth
father’s behalf regarding the child support
arrearage.
No further actions were taken on the matter
until May, 2009. Between May 11 and 18,
2009, the husband client made several calls
to Krueger Smith’s office requesting
information on the status of the adoption.
The husband client never spoke with Krueger
Smith, but was repeatedly told by Krueger
Smith’s husband (who assists Krueger Smith
in running her law office) that negotiations
with the birth father were going to take
place soon, but had not yet begun.
On May 19, 2009, the couple met with another
attorney to seek new counsel in the
adoption. That attorney informed them that
she could not do anything until they
terminated their relationship with Krueger
Smith. On May 26, 2009, the clients hand
delivered a letter to the office of Krueger
Smith that notified her of the termination
of their attorney – client relationship as
of May 27, 2009. This letter also stated
that at 2:30 p.m. on May 29, 2009, the
clients would come to Krueger Smith’s office
to pick up their file.
On May 29, 2009, when the wife client
arrived at Krueger Smith’s office to pick up
the file, she was informed by Krueger
Smith’s husband that the file was not at the
office. Arrangements were then made to have
the file hand delivered to the wife client’s
place of employment before 4:00 p.m. the
following day. On May 30, 2009, the husband
client twice called Krueger Smith’s office
to confirm the delivery of the file.
However, no file was delivered that day.
The next week, the husband client again
called Krueger Smith’s office concerning the
file. Again he was told by Krueger Smith’s
husband that the file would be delivered and
again it was not. The clients also
requested that Krueger Smith fax them a
confirmation of the termination of their
attorney-client relationship. No fax was
received.
On June 11, 2009, successor counsel sent a
letter to Krueger Smith requesting
confirmation of the termination of Krueger
Smith’s relationship with the couple and
requesting that the file be sent to them by
June 25, 2009. No reply to this letter was
received and on June 30, 2009, successor
counsel began a series of telephone calls to
Krueger Smith’s office reiterating the
couple’s request for the file. Each time,
successor counsel was told by Krueger
Smith’s husband that the file would be
sent. However, nothing was received until
Krueger Smith wrote to successor counsel on
July 20, 2009. In her one-page letter,
Krueger Smith summarized the adoption
matter, apologized for the delay, and
enclosed a $600 check made payable to the
wife client, which represented a full refund
of the advance fee paid to Krueger Smith in
the matter. There was no reference to the
file and no file has ever been turned over
to either the couple or successor counsel.
On August 26, 2009, the couple filed a
grievance against Krueger Smith, complaining
that she had failed to work diligently on
the adoption matter and that she had failed
to respond to their requests for a return of
their file. Krueger Smith responded to the
grievance listing the work she had done on
their behalf, including meeting with the
couple and their niece, contacting the Child
Support Agency regarding the birth father’s
child support arrearage, locating and
contacting the birth father and drafting
Termination of Parental Rights documents.
Regarding the return of the clients’ file
upon the termination of their attorney-
client relationship, Krueger Smith has
asserted that her office did turn over the
file to the couple. However, in her initial
written response to the OLR investigation,
dated March 5, 2010, Krueger Smith described
an encounter with the husband client that
did not lead to file delivery:
Sometime in May or June [2009], when I
was
not in the office, someone did deliver a
note to the office, asking for the file. I
don’t know whether or not it was the note
included with the grievance (it could well
be.) I did not get it until a day ro (sic)
two later, and when someone – [the husband
client], I believe, arrived to pick up the
file, I explained that I had not had time to
make a copy, and he got rather rude, and
left. I do not believe I ever promised to
deliver a copy.
I should have made time to make them a
copy
and send it right then, but it was a very
busy time in the office, and I put it aside
and forgot it. I did get the letter from
[successor counsel], and then a phone call
from her, and I then sent her the letter
with a check returning the [clients’] entire
retainer – because they were unhappy, I did
not charge anything for the time I had into
the case.
Notably, Krueger Smith did not mention the
file having been returned to the couple. In
further correspondence to OLR dated December
27, 2010, Krueger Smith described delivery
of the case file to the couple by Krueger
Smith’s husband. Krueger Smith stated:
When I received the grievance, I looked
for
either the file or a receipt from the
[clients] for it, and found neither. I was
afraid that it had been misplaced when the
office moved in August of 2009, but my
husband, who works for me, reminded me that
in late spring of 2009 he got a phone call
from [the wife client], telling him that she
would be at the office in an hour to pick up
the file, that she did arrive and he gave it
to her. I did then recall him telling me
that he gave her the file and that I was
upset that he had not asked for a receipt
for it…
Krueger Smith’s assertions regarding the
turning over of the file to the couple by
her husband is contradicted by the evidence.
The couple’s repeated attempts to retrieve
the file from Kreuger Smith would not have
continued if, in fact, they already
possessed the file. Successor counsel’s
contemporaneous notes of telephone
conversations with Krueger Smith’s husband
indicate that he told successor counsel they
still had the file and that they would send
it to her. Further, according to successor
counsel’s notes, Krueger Smith’s husband
told her that “his conscience got the best
of him and he has a pile of stuff ready to
send.” Finally, in Krueger Smith’s initial
response to the grievance, she made no
assertion that the file had been given to
the clients, instead stating that “I should
have made time to make them a copy and send
it right then, but it was a very busy time
in the office, and I put it aside and forgot
it.”
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By failing to timely follow through on
information that might lead to locating the
birth father and in otherwise failing to
timely advance the interests of the clients
in the adoption matter, Krueger Smith
violated SCR 20:1.3, which states, “A lawyer
shall act with reasonable diligence and
promptness in representing a client.”
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By failing to turn over her case file in the
adoption matter to either the couple or
successor counsel, notwithstanding multiple
requests for the file made by the couple and
successor counsel, Krueger Smith violated
SCR 20:1.16(d), which states in relevant
part, “Upon termination of representation, a
lawyer shall take steps to the extent
reasonably practicable to protect a client’s
interests, such as…surrendering papers and
property to which the client is entitled and
refunding any advance payment of fee or
expense that has not been earned or
incurred. The lawyer may retain papers
relating to the client to the extent
permitted by other law.”
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By representing to OLR that return of the
couple’s case file had been effectuated by
her husband, in the absence of evidence to
support that assertion and in the face of
credible evidence to the contrary, Krueger
Smith violated SCR 22.03(6), which
states, “In the course of the investigation,
the respondent’s willful failure to provide
relevant information, to answer questions
fully, or to furnish documents and the
respondent’s misrepresentation in a
disclosure are misconduct, regardless of the
merits of the matters asserted in the
grievance.” SCR 22.03(6) is enforced under
the Rules of Professional Conduct by SCR
20:8.4(h).
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On March 29, 2006, Krueger Smith received a
public reprimand in matters involving post-
conviction representation of three criminal
defense clients. Krueger Smith’s misconduct
involved lack of diligence (SCR 20:1.3);
failure to communicate with clients (SCR
20:1.4 (a) & (b)); and failure to cooperate
in an OLR investigation (SCR 20:8.4(f), 21.15
(4) & 22.03(6)).
In accordance with SCR 22.09(3), Attorney
Jane Krueger Smith is hereby publicly
reprimanded.
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