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In December 2007 a man, as personal
representative of his uncle’s estate, hired
Moldenhauer to represent the estate in an
informal probate proceeding.
On January 28, 2008, Moldenhauer filed the
original Will, Application for Informal
Probate and Proof of Heirship. On January
29, 2008, Moldenhauer filed the Notice to
Interested Persons.
On May 6, 2008, Moldenhauer filed the
Statement of Informal Administration,
Domiciliary Letters, Consent to Serve,
Affidavit of Mailing and Proof of
Publication.
The Will was admitted to probate on May 6,
2008. On December 4, 2008 Moldenhauer filed
the General Inventory. On February 6, 2009
notice of the estate being open more than 12
months was sent to Moldenhauer.
On or about May 5, 2009 Moldenhauer drafted
a letter to the Register in Probate
enclosing the estate Final Account, receipts
and personal representative’s Statement to
Close. In his letter to the Register in
Probate dated May 5, 2009 Moldenhauer
stated, “Please notify my office if there is
anything additional necessary for closing
the estate.”
Over a year later, on or about August 28,
2010, the client looked up the estate on
Wisconsin Circuit Court Access (“WCCA”) and
discovered the estate was still open.
In an email to Moldenhauer on August 28,
2010 the client stated, “I looked at the
status of the…Probate case. It shows it to
be open. Can you please clarify why the
case would be…open?” Moldenhauer did not
respond.
In an email to Moldenhauer on September 16,
2010 the client asked Moldenhauer to provide
an email reply that clarified the status of
the estate. Moldenhauer did not respond.
Once informed by the client that the estate
was still open, Moldenhauer stated he
undertook to determine why the estate had
not been closed. Moldenhauer’s belief was
that the estate documents had been filed and
the estate was closed. According to
Moldenhauer, this undertaking necessitated
some time before he was able to respond to
the client with some useful information
regarding the status of the estate.
Moldenhauer, however, did not acknowledge
the client’s inquiries or inform the client
that he would provide an update after
ascertaining case status.
Moldenhauer verified the estate had not been
closed by checking on WCCA. Moldenhauer
stated he communicated with the Register in
Probate, but that did not provide any
insight into why the estate was still open.
After further investigation of this matter,
Moldenhauer found an envelope behind the
credenza in his office that was addressed to
the Register in Probate, but never mailed.
Moldenhauer stated he found the misplaced
envelope a day or two before December 15,
2010 and it was sealed, properly addressed
and stamped with postage. The envelope
contained Moldenhauer’s letter to the
Register in Probate dated May 5, 2009, the
estate Final Account, receipts and the
personal representative’s Statement to
Close. Moldenhauer stated he subsequently
shredded this envelope according to his
office practice.
Moldenhauer stated he was under the mistaken
belief that the letter to the Register in
Probate dated May 5, 2009 was actually sent,
the estate documents were filed and the
estate was closed. On December 15, 2010,
Moldenhauer drafted a second letter to the
Register in Probate, enclosing the same
original estate documents for filing, and
sent it to the Register in Probate to close
the estate. On December 17, 2010, the
estate was closed by the Probate Court.
Moldenhauer did not inform the client that
the estate was closed until February 21,
2011. In a letter to the client dated
February 21, 2011, Moldenhauer stated, “I
would like to apologize to you for the delay
in confirming that the…Estate has been
closed by the Probate Court.” Moldenhauer
further stated, “I should have notified you
that it was completed and the file was
closed so you would have had that
information.”
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By failing to acknowledge the client’s
inquiries of August 28, 2010 and September
16, 2010, even for the purpose of informing
the client that he would ascertain the
status of the estate and report back to the
client, Attorney Moldenhauer violated SCR
20:1.4(a)(4), which states, “A lawyer shall…
promptly comply with reasonable requests by
the client for information.” and SCR 20:1.3,
which states, “A lawyer shall act with
reasonable diligence and promptness in
representing a client.”
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Having taken steps to close the estate in
December 2010, and knowing that the client
had made inquiries regarding case status as
early as August 2010, by failing to inform
the client of the closure of the estate
until doing so in correspondence dated
February 21, 2011, Attorney Moldenhauer
violated SCR 20:1.4(a)(3), which states, “A
lawyer shall…keep the client reasonably
informed about the status of the matter.”
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Attorney Moldenhauer has prior discipline.
In 1996, Attorney Moldenhauer received a
private reprimand for violations of SCR
20:1.3, 20:1.4(a) and SCR 20:1.15(b) in a
probate matter. In 2006, Attorney
Moldenhauer received a public reprimand for
violations of SCR 20:1.3 and 20:1.16(d) in
one matter, a violation of SCR 20:1.16(d) in
a second matter, and for failing to
cooperate with OLR in its investigation of
each matter. In 2008, Attorney Moldenhauer
received a public reprimand for violations
of SCR 20:1.3, 20:1.4(a) and 20:3.4(c) in a
probate matter.
In accordance with SCR 22.09(3),
Attorney James G. Moldenhauer is hereby
publicly reprimanded.
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