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The Respondent, Attorney Sean W. O’Neill
(“O’Neill”), age 42, was admitted to the
practice of law in Wisconsin on September 5,
1997 and practices in Onalaska, Wisconsin.
On or about June 16, 2009, a man hired
O’Neill to represent him on a felony charge
of possession of THC (2nd+ Offense) in one
case and misdemeanor charges of battery,
disorderly conduct and resisting or
obstructing an officer in another case.
On June 16, 2009, the client’s girlfriend
signed a fee agreement for O’Neill’s
representation of the client, but the client
was not present at the signing, nor did he
actually sign the fee agreement. O’Neill
recalled that the client was not present
because he was in jail. The fee agreement
included the names of both the client and
the client’s girlfriend and required an
advanced fee payment in the amount of
$3,000. The client did not view and was not
provided a copy of the fee agreement.
While O’Neill was representing the client in
the aforementioned two cases, the client was
charged in two new cases. O’Neill was
appointed by the Wisconsin State Public
Defender (“SPD”) to represent the client in
the two new cases. O’Neill informed the
SPD’s office that he privately represented
the client in the other two cases. The
final disposition of the four cases was that
one of the client’s cases was dismissed and
he received probation in each of the other
three cases.
Several months later the client was charged
with multiple felony and misdemeanor charges
including battery and strangulation, in a
case filed in June 2010. The client also
faced revocation of his probations in his
three prior cases.
In or about early June 2010, the client
contacted O’Neill to represent him in the
new June 2010 case and the three revocation
cases. O’Neill stated the client offered
him between $1,500 and $2,000 as an initial
advanced fee to represent him. However,
O’Neill told the client the advanced fee was
not enough and he would have to consider
whether to represent the client in the new
case and the three revocations. Within a
day or two, in a telephone message to
O’Neill, the SPD requested that he accept
appointments in these cases.
O’Neill stated he called the client and
indicated that SPD had requested he accept
appointments in these cases, but he was
unsure if he would accept the appointments.
O’Neill stated that the client said he would
pay O’Neill a bonus payment in the range of
$1,500 to $2,000, in addition to the SPD
compensation, if he would take the
appointments in these cases.
On June 15, 2010, O’Neill accepted the SPD’s
appointment in the new case filed in June
2010. On June 21, 2010, O’Neill accepted
the SPD’s appointment in the three
revocation cases.
O’Neill then received three payments from
the client, delivered by third parties
between June 18 and July 1, 2010. These
additional payments were deposited in
O’Neill’s law firm trust account and
receipts were issued for each individual
payment.
On February 25, 2011, the client filed a
grievance with OLR.
In or about June 2011, the client informed
the SPD that in addition to compensation
received by the SPD, O’Neill had also
received compensation directly from him for
the same cases.
In a letter to O’Neill dated June 28, 2011,
a representative of the SPD informed O’Neill
of the client’s allegations against him and
stated:
Administrative Code PD4.04 provides
that:
An attorney representing clients for
the
state public defender program may not
solicit, attempt to solicit, or receive
compensation from the attorney’s client in
addition to any compensation which the
attorney has received or expects to receive
from the state public defender pursuant to
this chapter.
The SPD representative further informed
O’Neill that she would need a response in
writing to the client’s complaint. In
particular, the SPD representative directed
O’Neill to provide an explanation for
receiving funds from the third parties for
the client’s case and to provide copies of
documentation of the disposition of these
funds.
On August 4, 2011, O’Neill responded in
correspondence to the SPD representative
that he had made the “absolutely wrong
decision” to accept compensation from the
client in addition to the compensation he
received from the SPD and apologized for his
actions.
In a letter to O’Neill dated August 25,
2011, the SPD representative stated:
You have admitted taking money from an
appointed client in violation of the
administrative code rule. One reason we
have this rule is to protect clients who are
some of the poorest and most vulnerable
members of society. We consider your
violation of this rule to be extremely
serious and requiring a significant
sanction.
With respect to the discipline imposed by
the SPD on O’Neill, the SPD representative
further stated:
After careful consideration I have
decided
that we should impose one condition and one
sanction to address this conduct. You made
a contract with us to do [the client’s] case
at $40/hour. You violated the spirit of
that contract as well as the administrative
code rule when you took the $960 from [the
client]. As a condition of your continued
participation in the private bar program you
must repay [the client] the $960. I am also
imposing a 60 day suspension from the
appointment lists. Based on your recent
past two years of billing, this will
probably cost you between $8,000 and $10,000
in case appointments. It is a significant
amount that I believe is in line with the
seriousness of the conduct. The suspension
will begin November 1, 2011. You will be
automatically reinstated on December 31,
2011.
In responding to the client’s grievance,
O’Neill stated to OLR, “On some level I had
a feeling that this act was wrong but I let
rationalization take over.” O’Neill further
stated that he personally received $960 in
compensation from the client in addition to
compensation paid by the SPD for the same
cases.
In one of the cases in which O’Neill
privately represented the client he admitted
he collected a contingent fee for obtaining
the dismissal of a charge of possession with
intent to deliver cocaine (>5-15g) against
the client. O’Neill stated in his response
that the client was extremely concerned
about this charge and the client said he
would pay him a bonus payment in the form of
his bond money if that charge was
dismissed. O’Neill was able to get the
charge dismissed and he collected the
remainder of the client’s bond as a bonus
which constituted a contingent fee.
On October 9, 2011, pursuant to the terms of
the conditional agreement he had with the
SPD, O’Neill sent the client a letter
enclosing a cashier’s check in the amount of
$960. O’Neill also refunded $198.40 to the
client which he calculated to be the
remainder of the client’s bond money that
represented a contingent fee in the criminal
case.
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In connection with his June 16, 2009 hiring
to represent the client in two separate
cases, for which he required an advance fee
payment of $3,000, by proceeding pursuant to
a fee agreement that was not signed by the
client or provided to the client, Attorney
O’Neill violated the following Rules of
Professional Conduct:
• SCR 20:1.5(b)(1), which states, “The
scope of the representation and the basis or
rate of the fee and expenses for which the
client will be responsible shall be
communicated to the client in writing,
before or within a reasonable time after
commencing the representation, except when
the lawyer will charge a regularly
represented client on the same basis or rate
as in the past. If it is reasonably
foreseeable that the total cost of
representation to the client, including
attorney’s fees, will be $1000 or less, the
communication may be oral or in writing.
Any changes in the basis or rate of the fee
or expenses shall also be communicated in
writing to the client.”
• SCR 20:1.5(b)(2), which states, “If
the total cost of representation to the
client, including attorney’s fees, is more
than $1000, the purpose and effect of any
retainer or advance fee that is paid to the
lawyer shall be communicated in writing.”
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In addition to compensation received from
the State Public Defender, by also receiving
$960 compensation from the client for legal
representation in one case filed in June
2010 and three revocations cases, in knowing
violation of Wisconsin Administrative Code
PD 4.04, Attorney O’Neill violated the
following Rules of Professional Conduct:
• SCR 20:1.5(a), which states, “A
lawyer shall not make an agreement for,
charge, or collect an unreasonable fee or an
unreasonable amount for expenses.”
• SCR 20:8.4(c), which states, “It is
professional misconduct for a lawyer to:…(c)
engage in conduct involving dishonesty,
fraud, deceit or misrepresentation.”
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By receiving compensation that was
contingent on his obtaining the dismissal of
the possession with intent to deliver
cocaine (>5-15g) charge, Attorney O’Neill
violated SCR 20:1.5(d)(2), which states, “A
lawyer shall not enter into an arrangement
for, charge, or collect a contingent fee:…
(2) for representing a defendant in a
criminal case or any proceeding that could
result in deprivation of liberty.”
Respondent has no prior discipline.
In accordance with SCR 22.09(3), Attorney
Sean W. O’Neill is hereby publicly
reprimanded.
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