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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the
recommendation of the referee, James C.
Boll, Jr., that Attorney Sherman Ward
Hackbarth be publicly reprimanded for
professional misconduct. That misconduct
consists of failing to act with reasonable
diligence and promptness in representing a
client, failing to adequately communicate
with a client, failing to return an advance
payment of a fee that he had not earned, and
failing to respond to the OLR's
investigative requests. The referee also
recommended that Attorney Hackbarth be
required to pay the costs of the proceeding,
which total $436.56 as of October 15, 2012.
The referee further recommended that
Attorney Hackbarth be required to make
restitution to the Wisconsin Lawyers' Fund
for Client Protection (the Fund) in the
amount of $1,000.
¶2 We adopt the referee's findings of
fact and conclusions of law. We agree with
the referee's conclusion that Attorney
Hackbarth's professional misconduct warrants
a public reprimand. We further order that
Attorney Hackbarth make restitution to the
Fund as described below, and that he pay the
full costs of this disciplinary proceeding.
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¶3 Attorney Hackbarth was admitted to
practice law in Wisconsin in 2005. The most
recent address he has on file with the State
Bar of Wisconsin is in Madison, Wisconsin.
On October 27, 2010, this court suspended
Attorney Hackbarth's Wisconsin law license
for his failure to cooperate with the OLR
investigation of this matter. His license
also was administratively suspended in June
2010 for his failure to comply with
mandatory continuing legal education
reporting requirements, and in October 2010
for his failure to pay bar dues and
assessments and his failure to file the
required trust account certification. His
license remains administratively suspended.
¶4 Attorney Hackbarth did not answer or
otherwise appear in this disciplinary
proceeding, and the referee made findings of
fact and conclusions of law in response to
the OLR's motion for default judgment.
¶5 The OLR's complaint alleged that in
late August or early September 2009, HJ
Liquors, LLC hired Attorney Hackbarth to
represent it in the acquisition of another
business. HJ Liquors made it clear to
Attorney Hackbarth that time was of the
essence, as it expected to operate the new
business in October 2009. HJ Liquors paid
Attorney Hackbarth $1,000 as an advanced
fee.
¶6 Attorney Hackbarth did not draft any
documents or take other actions to represent
HJ Liquors in the acquisition. He also
failed to respond to numerous e-mails and
telephone calls from HJ Liquors' principals.
¶7 On October 6, 2009, HJ Liquors
terminated Attorney Hackbarth's
representation and demanded a refund of the
$1,000 advanced fee. Attorney Hackbarth did
not refund any portion of the $1,000
advanced fee.
¶8 On October 16, 2009, HJ Liquors
filed a grievance against Attorney Hackbarth
with the OLR.
¶9 On November 9, 2009, Attorney
Hackbarth agreed to provide information
regarding HJ Liquors' grievance to the OLR.
He failed to do so.
¶10 On January 14, 2010, the OLR
notified Attorney Hackbarth that it was
investigating HJ Liquors' grievance and
required Attorney Hackbarth's response to
the grievance no later than February 8,
2010. Attorney Hackbarth did not respond.
¶11 On March 23, 2010, the OLR sent
Attorney Hackbarth a second request by
regular and certified mail, requiring a
response to the grievance by April 15,
2010. The OLR's certified letter was
delivered on or around March 24, 2010.
Attorney Hackbarth did not respond.
¶12 On July 13, 2010, the OLR wrote
Attorney Hackbarth a third letter in the HJ
Liquors matter, requiring Attorney
Hackbarth's response no later than seven
days from when it was served upon him. On
August 3, 2010, Attorney Hackbarth was
personally served with the OLR's July 13,
2010 letter, along with the OLR's January 14
and March 23, 2010 letters. Attorney
Hackbarth did not respond.
¶13 In September 2010 this court ordered
Attorney Hackbarth to show cause why his
Wisconsin law license should not be
suspended for his failure to cooperate in
the OLR's investigation of the HJ Liquors
matter. Attorney Hackbarth did not
respond. On October 27, 2010, this court
temporarily suspended Attorney Hackbarth's
Wisconsin law license.
¶14 The Fund subsequently reimbursed HJ
Liquors $1,000 for the advanced fee it paid
to Attorney Hackbarth.
¶15 The referee held a telephone
scheduling conference on July 31, 2012. The
referee had previously attempted to notify
Attorney Hackbarth of the time and date of
the scheduling conference via a letter sent
to Attorney Hackbarth's last known address
on file with the State Bar of Wisconsin, and
to two other addresses——one in Madison,
Wisconsin, and another in Milton,
Wisconsin. Attorney Hackbarth did not
appear at the scheduling conference.
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¶16 At the July 31, 2012 scheduling
conference, the OLR moved for default
judgment. The referee orally granted the
motion.
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¶17 On September 5, 2012, the referee
filed a report making findings of fact,
conclusions of law, and a recommendation for
disciplinary sanctions against Attorney
Hackbarth. The referee recommended that
Attorney Hackbarth be declared in default.
The referee determined that Attorney
Hackbarth violated SCR 20:1.3 by failing to
advance the interests of HJ Liquors in its
business acquisition attempt. The referee
further determined that Attorney Hackbarth
violated SCR 20:1.4(a)(2), (3), and (4) and
SCR 20:1.4(b) by failing to communicate in
any way with the principals of HJ Liquors
after receipt of the $1,000 advanced fee.
The referee further determined that Attorney
Hackbarth violated SCR 20:1.16(d) by failing
to refund the $1,000 advanced fee paid by or
on behalf of HJ Liquors when he failed to
perform any of the work for which he was
hired. The referee further determined that
Attorney Hackbarth violated SCR 22.03(2) and
(6) via SCR 20:8.4(h) by failing to respond
to the OLR's January 14, 2010, March 23,
2010, or July 13, 2010 letters.
¶18 Based on the determinations of
misconduct, the referee recommended that
Attorney Hackbarth be publicly reprimanded.
The referee also recommended that Attorney
Hackbarth be ordered to reimburse the Fund
in the amount of $1,000 for the payment the
Fund made to HJ Liquors due to Attorney
Hackbarth's misconduct.
¶19 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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¶20 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.
¶21 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.
Because Attorney Hackbarth failed to present
a defense despite being given multiple
opportunities to do so, we declare him to be
in default. We agree with the referee that
Attorney Hackbarth has engaged in the
serious misconduct alleged in the OLR's
complaint, warranting a public reprimand.
We also deem it appropriate to require
Attorney Hackbarth to make restitution to
the Fund in the amount of $1,000. Finally,
because this case presents no extraordinary
circumstances, we require Attorney Hackbarth
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).
¶22 IT IS ORDERED that Sherman Ward
Hackbarth is publicly reprimanded for his
professional misconduct. Attorney Hackbarth
is reminded that his license to practice law
remains administratively suspended. Before
Attorney Hackbarth may practice law in
Wisconsin, he must provide evidence to this
court that he has satisfied his obligations
relating to continuing legal education
reporting, bar dues and assessments, and
trust account certification, see SCR
22.28
(1), or, alternatively, that he has obtained
waivers from the Board of Bar Examiners of
his continuing legal education reporting
obligation and from the State Bar of
Wisconsin of his bar dues and assessments
and trust account certification obligations.
¶23 IT IS FURTHER ORDERED that within 60
days of the date of this order, Sherman Ward
Hackbarth shall pay restitution to the
Wisconsin Lawyers' Fund for Client
Protection in the amount of $1,000.
¶24 IT IS FURTHER ORDERED that within 60
days of the date of this order, Sherman Ward
Hackbarth shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶25 IT IS FURTHER ORDERED that the
restitution is to be completed prior to
paying costs to the Office of Lawyer
Regulation.
¶26 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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