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ATTORNEY disciplinary
proceeding. Attorney
publicly reprimanded.
¶1 PER CURIAM. We review a referee's
report and recommendation filed May 22,
2012, concluding that Attorney Mark A.
Phillips violated the rules of professional
conduct in connection with his
representation of V.S. The referee
recommended this court impose a public
reprimand upon Attorney Phillips, order
Attorney Phillips to complete a minimum of
20 hours of continuing legal education (CLE)
relating to the ethical obligations of
attorneys, order Attorney Phillips to pay
restitution in the amount of $1,050 to the
Wisconsin Lawyers' Fund for Client
Protection (the Fund), and order Attorney
Phillips to pay the full costs of this
proceeding, which total $2,878.18 as of June
11, 2012. No appeal has been filed.
¶2 We adopt the referee's findings of
fact and conclusions of law. We agree with
the referee's conclusion that Attorney
Phillips' professional misconduct warrants a
public reprimand. We further order that
Attorney Phillips make restitution to the
Fund as described below, that he pay the
full costs of this disciplinary proceeding,
and that within 12 months of the date of
this order he complete a minimum of 20 hours
of CLE relating to the ethical obligations
of attorneys.
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¶3 Attorney Phillips was admitted to
practice law in Wisconsin in 1981. He has
been subject to disciplinary action twice
before. In 2006 this court suspended
Attorney Phillips for one year for
misconduct that included improperly
obtaining loans from a client, engaging in
dishonest conduct, failing to act with
reasonable diligence and promptness in his
representation of a client, failing to
return a client's files promptly, and
failing to file timely state income tax
returns and to pay taxes that were due.
In
re Disciplinary Proceedings Against
Phillips, 2006 WI 43, 290 Wis. 2d 87, 713
N.W.2d 629.
¶4 In 2007 this court suspended
Attorney Phillips' license for three years
for committing a criminal act (willful
attempted federal income tax evasion, for
which he had been convicted and sentenced)
that reflected adversely on his honesty,
trustworthiness, or fitness as a lawyer in
other respects. In re Disciplinary
Proceedings Against Phillips, 2007 WI 63,
301 Wis. 2d 33, 732 N.W.2d 17. As a result
of these previous suspensions, Attorney
Phillips' license remains under suspension.
¶5 On December 27, 2011, the Office of
Lawyer Regulation (OLR) filed a two-count
complaint against Attorney Phillips. The
OLR alleged that in 2002, Attorney Phillips
charged an unreasonable fee in his
representation of V.S. in violation of
former SCR 20:1.5(a). The OLR further
alleged that Attorney Phillips failed to
refund unearned fees after his
representation of V.S. ended, in violation
of former and current SCR 20:1.16(d).
¶6 Dennis J. Flynn was appointed as
referee. Attorney Phillips admitted service
of the complaint but did not file an answer
or otherwise appear. The OLR moved for
default judgment.
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¶7 On May 22, 2012, the referee filed a
report granting the OLR's motion for default
judgment and making findings of fact,
conclusions of law, and a recommendation for
disciplinary sanctions against Attorney
Phillips. The referee determined that
Attorney Phillips charged an unreasonable
fee in violation of former SCR 20:l.5(a)
when, after accepting $1,500 from V.S.'s
parent as an advance legal fee payment
against which he was to charge his legal
work at $150 per hour, he kept the entire
$1,500 after having performed only three
hours of legal work. The referee further
determined that, by refusing to refund to
V.S. or her parent the $1,050 in advance
legal fees which he had not earned, Attorney
Phillips failed to take steps to protect
V.S.'s interests upon termination of
representation in violation of former and
current SCR 20:1.16(d). The referee also
found that the Fund paid V.S.'s parent
$1,050 as reimbursement for the money lost
due to Attorney Phillips' failure to return
the unearned legal fees.
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¶8 In recommending discipline, the
referee considered a number of factors,
including the absence of any justifiable
reason or satisfactory explanation for
Attorney Phillips' billing practices, his
prior disciplinary history, and his failure
to appear in this disciplinary proceeding.
As a mitigating factor, the referee noted
that Attorney Phillips' spouse died during
the pendency of the disciplinary
proceeding. In the end, the referee agreed
with the OLR's request in its complaint and
recommended the court impose a public
reprimand. The referee further recommended
that the court order Attorney Phillips to
secure 20 hours of CLE relating to the
ethical obligations of attorneys, to pay
restitution in the amount of $1,050 to the
Fund, and to pay the full costs of this
proceeding, which total $2,878.18 as of June
11, 2012.
¶9 The matter is now before this court
to review the referee's report and
recommendation. No appeal has been filed,
so this matter is submitted to the court
pursuant to SCR 22.17(2).
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¶10 We will not set aside the referee's
fact findings unless they are clearly
erroneous. In re Disciplinary Proceedings
Against Inglimo, 2007 WI 126, ¶5, 305 Wis.
2d 71, 740 N.W.2d 125. We review
conclusions of law de novo. Id.
Finally,
we determine the appropriate level of
discipline given the particular facts of
each case, independent of the referee's
recommendation, but benefiting from it.
In
re Disciplinary Proceedings Against
Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶11 We adopt the findings of fact and
conclusions of law set forth in the
referee's report. In addition, we accept
the referee's recommended sanctions. By
charging and failing to return $1,050 in
unearned legal fees, Attorney Phillips
engaged in serious misconduct warranting a
public reprimand. We also deem it
appropriate to require Attorney Phillips to
make restitution to the Fund in the amount
of $1,050. We also conclude that requiring
Attorney Phillips to participate in CLE
relating to the ethical obligations of
attorneys would help protect the public and
correct Attorney Phillips' behavior.
Finally, because this case presents no
extraordinary circumstances, we further
determine that Attorney Phillips should be
required to pay the full costs of this
matter. See SCR 22.24(1m) (supreme
court's
general policy upon a finding of misconduct
is to impose all costs upon the respondent
attorney).
¶12 IT IS ORDERED that Mark A. Phillips
is publicly reprimanded for his professional
misconduct. The court recognizes that Mark
A. Phillips' Wisconsin law license is
currently under suspension.
¶13 IT IS FURTHER ORDERED that within 12
months of the date of this order Mark A.
Phillips shall complete a minimum of 20
hours of continuing legal education relating
to the ethical obligations of attorneys.
¶14 IT IS FURTHER ORDERED that within 60
days of the date of this order Mark A.
Phillips shall pay restitution to the
Wisconsin Lawyers' Fund for Client
Protection in the amount of $1,050.
¶15 IT IS FURTHER ORDERED that within 60
days of the date of this order, Mark A.
Phillips shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶16 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the
Office of Lawyer Regulation.
¶17 IT IS FURTHER ORDERED that the
director of the Office of Lawyer Regulation
shall advise the court if there has not been
full compliance with all conditions of this
order.
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