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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report
and recommendation of the referee, the
Honorable Timothy L. Vocke, that Attorney
Robert J. Smead receive a public reprimand
and make restitution to a former client.
Because no appeal has been filed, we review
the referee's report and recommendation
pursuant to SCR 22.17(2). We approve and
adopt the referee's findings of fact and
conclusions of law. We agree that Attorney
Smead's professional misconduct warrants a
public reprimand, and we find it appropriate
to order him to make restitution to his
former client. We also agree with the
director of the Office of Lawyer Regulation
(OLR) that no costs be assessed against
Attorney Smead.
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¶2 Attorney Smead was admitted to
practice law in Wisconsin in 1998 and last
practiced in Menasha. In 2010 Attorney
Smead's law license was suspended for 120
days for misconduct found in two separate
attorney disciplinary matters. The
misconduct at issue included failing to
respond to his clients' requests for
information; failing to hold clients' money
in trust; failing to refund unearned fee to
a client; failing to have a written
contingent fee agreement; and failing to
respond to the OLR's grievance
investigations. In re Disciplinary
Proceedings Against Smead, 2010 WI 4, 322
Wis. 2d 100, 777 N.W.2d 644. Attorney
Smead's license remains suspended. In
addition, Attorney Smead's law license is
currently suspended for nonpayment of dues,
noncompliance with continuing legal
education (CLE) requirements, and failure to
cooperate with an OLR grievance
investigation.
¶3 On April 27, 2011, the OLR filed a
complaint alleging three counts of
misconduct arising out of Attorney Smead's
representation of M.R., who hired Attorney
Smead to represent him in a criminal
matter. M.R. paid Attorney Smead $1,500 for
the representation in 2007. On March 15,
2007, Attorney Smead filed a notice of
appearance in the criminal case on M.R.'s
behalf. On September 21, 2007, the
Winnebago County circuit court sent notice
to Attorney Smead about a hearing scheduled
for October 25, 2007.
¶4 On October 10, 2007, this court
issued an order suspending Attorney Smead's
license for failing to cooperate with an OLR
grievance investigation. The order provided
that Attorney Smead was to comply with SCR
22.26, which governs an attorney's
activities upon suspension or revocation,
and requires an attorney to notify all
clients of the suspension and the consequent
inability to act as an attorney following
the effective date of the suspension.
¶5 Attorney Smead failed to notify M.R.
of the suspension of his law license and
failed to tell him he would not be able to
appear at the October 25, 2007, hearing or
otherwise participate further in M.R.'s
defense. On October 25, 2007, Attorney
Smead failed to appear in court for the
scheduled hearing. The circuit court
appointed new counsel for M.R.
¶6 Following the suspension of his law
license, Attorney Smead failed to provide
M.R. with an accounting of fees advanced and
a refund of any unearned portion of the
fee. Attorney Smead also failed to respond
to M.R.'s post-representation requests for
information about fees.
¶7 M.R. filed a grievance with the OLR
on April 17, 2009. The OLR sent Attorney
Smead letters by both first-class and
certified mail advising of his duty to
cooperate with the investigation and setting
a deadline for him to provide a written
response to M.R.'s grievance. Attorney
Smead failed to provide a written response
to the grievance.
¶8 Prior to the OLR filing a formal
complaint, this case was originally referred
to a referee in the form of an SCR 22.12
stipulation for the imposition of a public
reprimand. However, the referee rejected
the stipulation because, at that time,
Attorney Smead lacked the financial
resources to pay restitution.
¶9 The OLR's complaint alleged three
counts of misconduct:
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[Count One] Upon suspension of his law
license on October 10, 2007, [Attorney]
Smead failed to notify his client M.R. of
the suspension and that he would not be able
to appear at his client's scheduled hearing
or otherwise participate further in his
defense, in violation of SCR 22.26(1)(a) and
(b).
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[Count Two] Upon suspension of his law
license and thereafter, [Attorney] Smead
failed to provide his client M.R. with an
accounting of fees advanced and a refund of
any unearned portion of the fee, and failed
to address his client's post-representation
requests for information on the subject of
fees, in violation of SCR 20:1.16(d).
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[Count Three] [Attorney] Smead failed to
provide OLR with a written response to
M.R.'s grievance, in violation of SCR 22.03
(2) and SCR 22.03(6), enforced via SCR 20:8.4
(h).
¶10 On May 6, 2011, Attorney Smead filed
an answer admitting all allegations in the
OLR's complaint. A hearing was held before
Referee Vocke on August 9, 2011. The
referee issued his report and recommendation
on August 24, 2011. The referee concluded
that the OLR had met its burden of proof
with respect to the allegations contained in
all three counts of the OLR's complaint.
The referee noted that by filing an answer
admitting all of the allegations against
him, Attorney Smead was essentially entering
a plea of no contest as to all three counts
of misconduct. The referee concluded that a
public reprimand would be an appropriate
sanction for Attorney Smead's misconduct.
¶11 The referee noted that Attorney
Smead was previously disciplined, and the
referee said there appeared to be a pattern
of misconduct between the two prior
disciplinary cases, which resulted in the
2010 suspension of Attorney Smead's license,
and the instant case. However, the referee
also found numerous mitigating factors,
including the fact that the misconduct at
issue here occurred during precisely the
same timeframe as the misconduct that
occurred in the two prior disciplinary cases
and if the timing had been right, the OLR
could have brought all three cases at the
same time.
¶12 The referee found a significant
mitigating factor to be that Attorney
Smead's misconduct arose after he took over
a heavy caseload from another attorney with
whom he shared office space and whose
license was suspended. The referee noted
that out of a sense of compassion and
professional obligation, Attorney Smead
nearly doubled his own caseload by taking on
the other attorney's clients, the vast
majority of whom had already paid retainers
to the suspended attorney, and Attorney
Smead basically handled these clients' cases
for free.
¶13 The referee found Attorney Smead to
be remorseful and found Attorney Smead's
problems were situational in that he was
unexpectedly overwhelmed by the amount of
additional work he took on and there was no
indication that he operated out of greed or
dishonest motive. The referee noted that
Attorney Smead has discontinued the practice
of law, has gone to nursing school and
obtained an R.N. degree, and is currently
working at a hospital. Based on all of
those factors, the referee concluded that a
public reprimand was an appropriate level of
discipline.
¶14 Attorney Smead agreed that he owed
M.R. $1,500 restitution, plus interest. At
the hearing before the referee, Attorney
Smead tendered two money orders, one in the
amount of $1,000 and one in the amount of
$787.50, which would cover $1,500 in
restitution as well as interest through
August 2011. There was a discussion on the
record that M.R. has disappeared and both
Attorney Smead and counsel for the OLR made
repeated attempts to locate M.R., all
without success. When asked what should be
done with the $1,787.50, OLR's counsel said
she had done some investigation and believed
the funds should be deposited with the
Office of the State Treasurer as unclaimed
property. She said this proposal was based
upon guidance the OLR provides to Wisconsin
attorneys on OLR's web site. The referee
concluded that this proposed handling of the
money orders was not suitable to the
circumstances presented in this case and
directed that OLR's counsel take possession
of the money orders and turn them over to
the clerk of this court pending a
determination by the court as to the
appropriate handling of the funds. The
referee also suggested that if M.R. had not
come forward to collect the money within one
year, the money should be returned to
Attorney Smead. Finally, the referee
recommended that no costs be imposed against
Attorney Smead.
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¶15 This court will affirm a referee's
findings of fact unless they are clearly
erroneous. Conclusions of law are reviewed
de novo. In re Disciplinary Proceedings
Against Tully, 2005 WI 100, ¶25, 283 Wis.
2d
124, 699 N.W.2d 882. This court is free to
impose whatever discipline it deems
appropriate, regardless of the referee's
recommendation. In re Disciplinary
Proceedings Against Widule, 2003 WI 34,
¶44,
261 Wis. 2d 45, 660 N.W.2d 686.
¶16 Because they have not been shown to
be clearly erroneous, we adopt the referee's
findings of fact. We also agree with the
referee's conclusions of law and his
recommendation regarding the appropriate
level of discipline. We conclude that a
public reprimand is sufficient to achieve
the objectives of attorney discipline. We
also agree that under the unique facts of
this case, no costs should be imposed
against Attorney Smead. We note that in its
statement of costs, the OLR says it is
appropriate to treat this case similar to
cases involving stipulations filed under SCR
22.12, in which costs are generally not
assessed against a respondent. The OLR
points out that Attorney Smead was
previously willing to enter into a pre-
litigation stipulation to resolve the matter
but a referee rejected that agreement
because Attorney Smead was unable to pay
restitution at that time. The OLR also
notes that Attorney Smead continued his
willingness to resolve the matter by not
contesting a public reprimand and paying
restitution to M.R.
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¶17 Supreme court rule 22.24(1m)
provides that it is this court's general
policy upon a finding of misconduct to
impose all costs upon the respondent. In
cases involving extraordinary circumstances,
the court may, in the exercise of its
discretion, reduce the amount of costs
imposed upon a respondent. We deem it an
extraordinary circumstance that the
misconduct at issue here occurred at
approximately the same time as the
misconduct at issue in the matters which
resulted in Attorney Smead's 2010
suspension. As the referee pointed out, if
the counts involving M.R. could have been
brought concurrently with the counts alleged
in the earlier proceedings, it is likely
that additional costs would not have been
incurred. In addition, we note that
Attorney Smead attempted to bring this
matter to a swift conclusion, first by
agreeing to enter into an SCR 22.12
stipulation and then by filing an answer
admitting all allegations in OLR's
complaint. For these reasons, we decline to
assess any costs against Attorney Smead.
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¶18 While we agree with the referee that
Attorney Smead should be required to make
restitution to M.R. in the amount of
$1,787.50, we deem it appropriate to
establish a different procedure than that
suggested by the referee. As noted above,
in spite of due diligence, neither Attorney
Smead nor counsel for the OLR has been able
to ascertain M.R.'s current whereabouts.
Under the circumstances, we deem it
appropriate to transmit the $1,787.50 to the
unclaimed property unit of the Office of the
State Treasurer.
¶19 IT IS ORDERED that Robert J. Smead
is publicly reprimanded for professional
misconduct.
¶20 IT IS FURTHER ORDERED that within 30
days of the date of this order, the clerk of
this court shall transmit to the unclaimed
property unit of the Office of the State
Treasurer the two money orders totaling
$1,787.50, which represent restitution and
interest owed to M.R. by Attorney Smead.
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