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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report
filed by the referee, Kim M. Peterson,
recommending the court suspend Attorney
Everett E. Wood's license to practice law in
Wisconsin for six months for 28 counts of
professional misconduct. No appeal has been
filed so 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 Wood's professional misconduct
warrants a six-month suspension of his
license to practice law, and we deem it
appropriate to require Attorney Wood pay the
full costs of the proceeding, which were
$19,959.24 as of October 1, 2012.
¶2 Attorney Wood was admitted to the
practice of law in Wisconsin on June 17,
1992. He has most recently practiced in
Hubertus, Wisconsin. Attorney Wood has no
prior disciplinary history.
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¶3 On July 18, 2011, the Office of
Lawyer Regulation (OLR) filed a complaint
against Attorney Wood alleging 28 counts of
misconduct. Attorney Wood filed an answer
and, on June 29, 2012, the OLR filed a
motion for partial summary judgment. On
July 31, 2012, the parties entered into a
partial fact stipulation supporting 17 of
the counts of alleged misconduct.
¶4 On August 2, 2012, the referee
conducted a telephonic hearing on the OLR's
motion for partial summary judgment, and
granted the OLR's motion on all counts
included in the motion except one on which
judgment was reserved until hearing.
¶5 On August 6, 2012, the referee
conducted an evidentiary hearing on the
remaining counts of misconduct. Following
submission of post-hearing briefs, the
referee issued her report and recommendation
concluding the OLR had met its burden and
proved the remaining 11 allegations by clear
and convincing evidence. The referee
recommended a six-month suspension and the
imposition of costs. There is no need to
detail the extensive allegations and
findings. We will briefly summarize the
incidents giving rise to the ethical
misconduct.
Matter of W.A. (Counts 1 and 2)
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¶6 W.A. hired Attorney Wood in February
2006 to represent her in connection with
problems with the construction of her home,
including alleged contractor overbilling.
Attorney Wood failed to pursue his client's
claims. He was often unresponsive to W.A.
and, after W.A.'s contractor filed suit
against her, Attorney Wood failed to file
any response in the suit he had been hired
to defend. Even after the court granted a
default judgment against W.A., Attorney Wood
failed to communicate with W.A. and later
failed to inform W.A. that he was
terminating his representation.
Matter of R.M. (Counts 3 and 4)
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¶7 R.M. hired Attorney Wood in 2007 to
represent him in a dispute with a
homeowner. Attorney Wood sent the bank and
title company a demand letter but, when the
recipients did not respond, Attorney Wood
failed to pursue the matter. Attorney Wood
failed to respond to R.M.'s requests for
information until R.M. threatened to report
Attorney Wood's unresponsiveness. Attorney
Wood then performed some work but failed to
respond to R.M.'s repeated requests for
information, failed to file a summons and
complaint, and undertook no other action to
resolve R.M.'s claims. R.M. eventually
filed a grievance against Attorney Wood
whereupon Attorney Wood terminated his
representation.
Matter of T.M. (Counts 5 through 7)
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¶8 T.M. hired Attorney Wood in early
2007 to represent him in a dispute with a
contractor. Attorney Wood failed to take
action on T.M.'s case and, with rare
exception, failed to respond to T.M.'s
requests for information. Attorney Wood
finally filed the summons and complaint in
T.M.'s case in February 2008, but then
failed to effect personal service of the
summons and complaint.
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¶9 On July 24, 2008, Attorney Wood
failed to attend a dismissal hearing on the
lawsuit. The court dismissed the case and
Attorney Wood failed to send the dismissal
notice to T.M. Eventually, T.M. filed a
grievance against Attorney Wood with the
OLR. Attorney Wood then failed to timely
respond to T.M.'s grievance.
Matter of A.M. and J.M. (Counts 8 through
12)
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¶10 A.M. and J.M. hired Attorney Wood in
March 2008 to help them resolve a dispute
with a contractor. They paid Attorney Wood
$1,000 for future services. Attorney Wood
deposited this check into his business
account without sending the required notice
described in SCR 20:1.15(b)(4m). On April
8, 2008, the contractor filed a lien claim
against the property and sent a letter
explaining the basis of the claim. A.M. and
J.M. forwarded this letter to Attorney Wood,
but Attorney Wood failed to respond, except
for sending the clients a bill in June 2008.
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¶11 Attorney Wood essentially took no
action to resolve the lien claim. The
clients tried to contact Attorney Wood
numerous times, with minimal success.
Attorney Wood failed to provide his clients
with a copy of a letter he sent on their
behalf and also failed to send a follow-up
letter at the clients' direction. Finally,
on May 11, 2009, the clients terminated
Attorney Wood's representation, requested he
return any remaining funds, and filed a
grievance with the OLR. Attorney Wood
failed to return $100 of the remaining
clients' funds and failed to timely respond
to the OLR's inquiries.
Matter of C.H. (Counts 13 through 17)
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¶12 C.H. and his corporation
(collectively C.H.) retained Attorney Wood
in 2008 in connection with a dispute with
V.H. and L.H. On June 6, 2008, Attorney
Wood filed suit on behalf of C.H. On August
25, 2008, Attorney Wood spoke with C.H. and
filed an answer to a counterclaim. C.H.
called Attorney Wood several times over the
following months trying to obtain
information about the case. Attorney Wood
did not return those calls. Attorney Wood
failed to appear at a scheduling conference,
and he failed to comply with a court
directive to file a witness list.
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¶13 On January 9, 2009, V.H. and L.H
filed a third—party summons and complaint
and sent it to Attorney Wood, who refused
service. Attorney Wood then failed to
inform C.H. of the filing. In February 2009
V.H. and L.H moved to exclude C.H.'s
witnesses because Attorney Wood had failed
to file a witness list. Finally, in the
spring of 2009, C.H. discussed his case with
another attorney, who unsuccessfully
attempted to contact Attorney Wood. The
attorney filed a notice of appearance as co-
counsel and faxed a copy to Attorney Wood.
Attorney Wood never assisted the attorney in
transferring C.H.'s file or addressing the
motion to exclude C.H.'s witnesses.
Attorney Wood did not withdraw as counsel
for C.H.
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¶14 On June 5, 2009, the court heard the
exclusion motion filed by V.H. and L.H.
Attorney Wood was not present at the
hearing. Successor counsel moved to have
Attorney Wood removed from the case. The
court granted the motion and then ordered
C.H. and Attorney Wood to pay $1,400 in
sanctions, jointly and severally. Attorney
Wood also repeatedly failed to respond to or
adequately cooperate with the OLR's requests
for information in this matter.
Matter of S.H./Trust Account Violations
(Counts 18 through 23)
¶15 In 2008 Attorney Wood represented
S.H. in a lawsuit against Sears Roebuck and
Company (Sears). Sears was represented by
Attorney Michael Ganzer. In September 2008
S.H. and Sears settled the lawsuit. Sears
agreed to pay S.H. $28,000 for the full and
complete release of all of his claims in
that particular case. The parties did not
discuss whether S.H. would retain any
warranty claims.
¶16 On October 15, 2008, Attorney Ganzer
sent Attorney Wood the settlement documents
with a settlement check payable to Attorney
Wood's trust account. The check was to be
held in trust pending S.H.'s execution of
the settlement documents. On October 17,
2008, Attorney Wood deposited the settlement
check in his trust account.
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¶17 On October 31, 2008, S.H. signed the
settlement documents but added that Sears
was "release[d] as to work performed, [but]
product warranties survive." Attorney Wood
had not discussed this modification with
Attorney Ganzer. Attorney Wood then issued
a check to S.H. for S.H.'s portion of the
settlement and withdrew $7,000 in cash as
fees. Between October 2008 and January
2009, Attorney Wood made six additional cash
withdrawals from his trust account.
Attorney Wood did not keep individual client
ledgers, deposit records, or disbursement
records in 2008.
¶18 Attorney Ganzer repeatedly requested
copies of the executed settlement
documents. Attorney Ganzer finally received
the settlement documents on December 5,
2008. Attorney Ganzer filed the stipulation
and order for dismissal with the court, but
objected to changes Attorney Wood had made
to the settlement agreement.
¶19 On December 12, 2008, Attorney Wood
withdrew $6,000 in cash from his trust
account as his remaining fee. On December
24, 2008, Attorney Ganzer wrote to Attorney
Wood objecting to the changes made in the
settlement agreement, and demanding that he
get a "clean" release from S.H. Attorney
Wood did not respond, and did not return any
money to his trust account for the
settlement.
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¶20 After March 2009 Attorney Ganzer's
associate contacted Attorney Wood several
times to obtain an unedited release or the
settlement funds. Attorney Wood did not
respond. On June 30, 2009, Attorney Ganzer
filed a grievance with the OLR over Attorney
Wood's handling of the settlement. Attorney
Wood then failed to adequately respond to
the OLR's inquiries.
Matter of K.R. and T.R. (Counts 24 through
27)
¶21 K.R. and T.R. hired Attorney Wood in
2006 to represent them in a potential suit
against A. Bishop Farms, Inc. (Bishop). In
2007 Attorney Wood filed suit against
Bishop. In May 2008 Bishop and K.R. and
T.R. settled the suit, and the court
dismissed the case. Bishop agreed to pay an
increased amount if it failed to make the
payments promised under the settlement
agreement.
¶22 In July 2008 Bishop breached the
settlement agreement, entitling K.R. and
T.R. to a judgment of $30,000. In November
2008 Attorney Wood moved to reopen the case
and enforce the settlement agreement,
seeking a $30,000 judgment against Bishop.
At a February 9, 2009 hearing, the court
granted the motion to reopen. However, the
court granted a judgment for $10,843.22,
instead of the $30,000 allowed under the
settlement agreement and requested in
Attorney Wood's motion. Afterward, Attorney
Wood submitted a judgment to the court with
the incorrect lower amount. On April 28,
2009, the court entered the judgment.
Attorney Wood did not send a copy of the
judgment to K.R. and T.R. at that time.
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¶23 In September 2009 Attorney Wood sent
a copy of the judgment to K.R. and T.R. and
told them he would have the error fixed. In
late 2009 and early 2010, K.R. and T.R.
called and e-mailed Attorney Wood several
times asking him to correct the judgment.
Attorney Wood frequently failed to respond.
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¶24 Attorney Wood eventually moved to
reopen the judgment but failed to send his
clients a copy of the motion. The court set
a hearing for July 27, 2010. On June 11,
2010, K.R. and T.R. e-mailed Attorney Wood
to terminate his representation due to his
lack of communication and requested their
file. K.R. and T.R. were not aware of the
pending motion to reopen that Attorney Wood
had finally filed. Attorney Wood did not
respond to his clients' e-mail or send them
their file. Attorney Wood failed to appear
at the July 27, 2010 motion hearing, and the
court dismissed the motion.
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¶25 Between September and December 2010,
the OLR made several attempts to contact
Attorney Wood to investigate a grievance
filed against Attorney Wood related to his
representation of K.R. and T.R. Attorney
Wood did not respond to the OLR's
communications. On January 5, 2011, this
court ordered Attorney Wood to show cause
why his license should not be suspended for
failure to cooperate with the OLR. On
January 25, 2011, Attorney Wood finally
responded satisfactorily to the OLR in the
K.R. and T.R. matter.
Unauthorized Practice (Count 28)
¶26 On April 17, 2009, the Board of Bar
Examiners (BBE) formally notified Attorney
Wood that it would suspend his license to
practice law on June 16, 2009, at 4:30 p.m.,
if he failed to submit satisfactory
documentation showing Continuing Legal
Education (CLE) hours. On June 16, 2009,
Attorney Wood hand-delivered CLE
documentation to the BBE, but reported one
credit short of the requirements.
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¶27 On June 17, 2009, the BBE mailed
Attorney Wood a notice of suspension. That
same day, Attorney Wood appeared on a
client's behalf at a worker's compensation
hearing. Over the next few days, while
suspended, Attorney Wood filed documents
with courts in at least three cases. On
June 23, 2009, Attorney Wood obtained one
ethics CLE credit and achieved
reinstatement, effective June 25, 2009.
¶28 The referee concluded, both pursuant
to the terms of the partial stipulation and
following an evidentiary hearing, that
Attorney Wood committed the misconduct
alleged in the complaint.
¶29 The OLR alleged and the referee
concluded that Attorney Wood committed the
following misconduct: six violations of
20:1.3 (Counts 1, 3, 5, 8, 13, 24); one
violation of former SCR 20:1.4(a) (effective
prior to July 1, 2007) (Count 2) and six
violations of current SCR 20:1.4(a)(3) and
(4) (Counts 2, 4, 6, 9, 14, 25); five
violations of SCR 22.03(2) (Counts 7, 12,
17, 23, 27) and four violations of SCR 22.03
(6) (Counts 12, 17, 23, 27), all enforceable
via SCR 20:8.4(h); five violations of SCR
20:1.15, the "trust account rule" (Counts
10, 18, 19, 20, 21); two violations of SCR
20:1.16(d) (Counts 11 and 26); one violation
of SCR 20:3.2 (Count 15); one violation of
SCR 20:3.4(c) (Count 16); one violation of
SCR 20:8.4(c) (Count 22); and one violation
of SCR 31.10(1), enforceable via SCR 20:8.4
(f) (Count 28).
¶30 In this case, the referee concluded,
and we agree, that a six-month suspension is
warranted. The misconduct proven by the OLR
is serious, and there is a clear need to
protect the public from possible repetition
of this kind of misconduct. As the referee
observed, Attorney Wood's misconduct goes to
the heart of a lawyer's obligations to his
client. The referee observed:
Two of the most important and
foundational
requirements for a lawyer are to act with
diligence and communicate with the client.
This case doesn't involve a situation where
Mr. Wood attempted to handle a matter that
was beyond his legal capacity, or where he
simply didn't understand a complicated legal
issue. These are matters where Mr. Wood
simply failed to act diligently on client
matters and then when confronted by his
clients, failed to communicate. To compound
the issue, when several of Mr. Wood's
clients finally lost patience and brought
the issue to the OLR for investigation, Mr.
Wood often failed to cooperate with the
OLR. Further, the misconduct doesn't
involve just one case that slipped through
the cracks——this misconduct spans a period
of time and a series of cases. This is a
pattern of misconduct that has caused Mr.
Wood's clients unnecessary anxiety, stress
and money.
What is most disturbing is the
fact
in at [least] three of the matters Mr. Wood
has tried to justify his misconduct rather
than simply acknowledge he made an error in
judgment. Mr. Wood's weak efforts to
justify his misconduct leads me to believe
that Mr. Wood does not clearly understand
his ethical failings and is therefore more
likely to repeat this kind of
misconduct.
The case law also supports a
more
serious sanction. In Disciplinary
Proceedings Against Hansen, 2009 WI 56,
318
Wis. 2d 1, 768 N.W.2d 1, a nine month
sanction was imposed for 28 counts of
misconduct in four client matters. The
misconduct was similar in nature to that
alleged in this case, and while the attorney
in Hansen had a prior private reprimand,
his
depression also played a role in the
misconduct, and could be considered a
mitigating factor. In this case, there were
28 counts of misconduct on seven client
matters. While there has been no prior
discipline, there has been no explanation
for the misconduct either.
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¶31 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.
¶32 We adopt the referee's findings of
fact because they have not been shown to be
clearly erroneous. We also agree with the
referee's conclusions of law and her
recommendation regarding discipline.
Because this case presents no extraordinary
circumstances, we further determine that
Attorney Wood 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).
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¶33 Finally, we turn to the issue of
restitution. The referee recommended the
court require Attorney Wood to reimburse
J.M. and R.M. She notes that the complaint
alleged Attorney Wood failed to return an
unearned retainer, despite a written request
for the refund from the clients. She notes
that "[a]mazingly, Mr. Wood argues that he
is entitled to retain those remaining funds
because he spoke to the client approximately
eight times during the course of the
representation. However, all of those
contacts were initiated by the [clients] in
an effort to reach Mr. Wood and inquire
about the progress of their case." The
referee opined that the clients "shouldn't
have to pay a fee to get Mr. Wood to do his
job, or to get information about the status
of their case."
¶34 The referee stated:
I would recommend a refund [of] almost
the
entire $1000 fee. The new attorney hired by
[the clients] likely had to duplicate much
of the work billed by Mr. Wood, including
reviewing client documents, reading and
discussing the expert report . . . . This
wasted work accounted for 2.9 hours of the
work billed by Mr. Wood, for a total of
$652.50. Including the $100 that Mr. Wood
agrees was not billed, the total owed the
[clients] would be $752.50.
¶35 The OLR filed a restitution
statement stating its policy on restitution
and stating that with respect to this matter
it would only seek restitution of $100,
explaining that "[s]uccessor counsel's time
is not in the record, and regardless,
represents incidental or consequential
damages." The OLR also sets forth the
reasons it does not seek restitution in any
other client matter. Attorney Wood had
multiple opportunities to object to the
recommended restitution before both the
referee and this court. He has not done
so.
¶36 We generally adhere to the OLR's
policy with respect to restitution. Here,
under the facts presented and in view of the
referee's specific recommendation, we
determine that Attorney Wood should be
ordered to pay restitution in the amount of
$752.50.
¶37 IT IS ORDERED that the license of
Everett E. Wood to practice law in Wisconsin
is suspended for a period of six months,
effective March 1, 2013.
¶38 IT IS FURTHER ORDERED that Everett
E. Wood shall pay restitution in the amount
of $752.50 plus interest dating from May 11,
2009, to his former clients, A.M. and J.M.,
within 30 days of the date of this order.
¶39 IT IS FURTHER ORDERED that Everett
E. Wood shall comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶40 IT IS FURTHER ORDERED that within 60
days of the date of this order, Everett E.
Wood shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶41 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the
Office of Lawyer Regulation.
¶42 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.29
(4)(c).
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