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ATTORNEY disciplinary
proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review, pursuant to
SCR 22.17(2), the report of the referee,
Richard C. Ninneman, recommending the court
publicly reprimand Attorney Robert Paul
D'Arruda for professional misconduct. No
appeal has been filed.
¶2 We approve and adopt the referee's
findings of fact and conclusions of law. We
agree that Attorney D'Arruda's misconduct
warrants a public reprimand, and we direct
Attorney D'Arruda to reimburse one former
client, as provided herein. We impose the
full costs of this proceeding, which total
$6,014.07 as of September 4, 2013.
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¶3 Attorney D'Arruda was licensed to
practice law in Wisconsin in 1993. He is a
criminal defense attorney from Milwaukee,
Wisconsin. Attorney D'Arruda was privately
reprimanded in 2011 for misconduct in two
client matters involving failure to provide
clients with a written fee agreement,
failure to provide clients with an itemized
statement or accounting for services, and
failure to respond in a timely manner to
clients' grievances and Office of Lawyer
Regulation (OLR) requests for information.
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¶4 On October 25, 2012, the OLR filed a
14-count complaint alleging that Attorney
D'Arruda committed misconduct in connection
with four client matters. Attorney D'Arruda
filed an answer admitting allegations
related to ten of the counts. On June 28,
2013, the parties entered into a stipulation
reflecting these concessions. Prior to the
hearing, the OLR voluntarily dismissed one
of the remaining counts.
¶5 On July 25, 2013, the referee
conducted an evidentiary hearing. Attorney
D'Arruda testified on his own behalf and
called character witnesses. On August 15,
2013, the referee filed a report and
recommendation accepting the parties'
stipulation and, with respect to the
remaining three counts of misconduct,
concluding Attorney D'Arruda engaged in
misconduct on two of the counts and
recommending dismissal of the third. The
referee recommended the court impose a
public reprimand and order restitution to
one client. No appeal was filed.
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¶6 This court will affirm a referee's
findings of fact unless they are clearly
erroneous; conclusions of law are reviewed
de novo. See In re Disciplinary
Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269
Wis.
2d 43, 675 N.W.2d 747. This court is free
to impose whatever discipline it deems
appropriate, regardless of the referee's
recommendation. See In re
Disciplinary
Proceedings Against Widule, 2003 WI 34,
¶44,
261 Wis. 2d 45, 660 N.W.2d 686.
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¶7 The referee accepted the parties'
stipulation that Attorney D'Arruda failed to
provide his clients H.A. and A.M. a written
communication explaining the basis or rate
of his fee and the purpose and effect of the
advanced fee he accepted in violation of
SCRs 20:1.5(b)(l) and (2) (Count 1); failed
to deposit funds in a trust account until
earned, and failed to refund an unearned
$500 fee upon request in violation of SCRs
20:1.15(b)(4) (Count 2) and 20:1.16(d)
(Count 3); and failed to timely respond to
the ensuing grievance in violation of SCR
22.03(2), enforceable via SCR 20:8.4(h)
(Count 4). Record evidence indicates the
Wisconsin Lawyers' Fund for Client
Protection (the Fund) subsequently
reimbursed Attorney D'Arruda's client $500
for an advanced fee and Attorney D'Arruda
testified that he, in turn, reimbursed the
Fund such that restitution in this matter is
not warranted.
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¶8 The referee also accepted the
parties' stipulation relating to the matter
of B.F., concluding that Attorney D'Arruda
failed to turn over B.F.'s file and
discovery materials to successor appellate
counsel after his representation was
terminated in January 2011, in violation of
SCR 20:1.16(d) (Count 12); and failed to
provide a timely written response to the
B.F. grievance in violation of SCR 22.03(2),
enforceable via SCR 20:8.4(h) (Count 13).
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¶9 The referee also accepted the
parties' stipulation that Attorney D'Arruda
failed to respond to multiple requests by
the OLR regarding a grievance filed by
another former client, D.L. The referee
thus concluded that Attorney D'Arruda
violated SCR 22.03(2), enforceable via SCR
20:8.4(h), based on his delay in responding
to the grievance (Count 14).
¶10 Attorney D'Arruda stipulated to
some, but not all of the allegations
pertaining to his representation of L.N.
¶11 L.N. hired Attorney D'Arruda in July
of 2009 to represent her in connection with
a police investigation in Racine County.
L.N. paid Attorney D'Arruda $750 in 2009 and
paid him an additional $1,500 in 2010. On
May 17, 2010, the State charged L.N. with a
felony.
¶12 Between October 26, 2010, and August
30, 2011, L.N.'s case was called for trial
several times. Each time, the court
convened a status conference instead. L.N.
was unhappy with the delay and eventually
filed a grievance with the OLR. In August
2011 L.N. retained new counsel who arranged
a plea deal on her behalf.
¶13 The OLR alleged that Attorney
D'Arruda failed to promptly pursue
resolution of L.N.'s case from November 2010
until his representation was terminated in
July or August 2011 (Count 5), failed to
inform L.N. that he would not appear at all
scheduled court dates (Count 6), failed to
respond to L.N.'s phone calls between March
2011 and July 2011 (Count 7), failed to give
L.N. a final accounting and a refund of any
unearned advanced fees and required notices
upon the termination of his representation
(Count 8), failed to refund unearned fees
(Count 9), and failed to timely respond in
writing to L.N.'s grievance (Count 10).
¶14 Attorney D'Arruda stipulated to the
misconduct alleged in Counts 6, 8, and 10,
and the referee accepted that stipulation.
Attorney D'Arruda contested the OLR's claims
that he failed to diligently pursue the
case, failed to respond to phone calls, and
failed to refund unearned fees.
¶15 Attorney D'Arruda testified that he
was prepared to try L.N.'s case as early as
October 26, 2010. However, when the case
was called on October 26, 2010, the
prosecutor was in another trial and the
court continued the case. Attorney D'Arruda
admits that he did not appear at a February
15, 2011 trial date because he was in
another trial in Milwaukee County. He
explained that he sent a message by
facsimile to both the Racine County District
Attorney's office and the court. The
message did not reach the court because
Attorney D'Arruda used an incorrect fax
number, but the prosecutor received the
message and the court adjourned the matter.
On May 10, 2011, the trial date was changed
to a scheduling conference because of a lack
of communication between Attorney D'Arruda
and the district attorney.
¶16 The referee declined to hold
Attorney D'Arruda solely responsible for
these delays in advancing the L.N. matter to
resolution. The referee thus concluded that
the OLR failed to prove this claim by clear,
satisfactory, and convincing evidence and
recommended the court dismiss Count 5.
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¶17 The referee found that facts set
forth in the stipulation clearly established
that Attorney D'Arruda failed to respond to
L.N.'s phone calls during the relevant time
period and thus concluded that Attorney
D'Arruda violated SCR 20:l.4(a)(4) (Count 7).
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¶18 Regarding the alleged failure to
refund unearned fees, the referee noted that
L.N. paid Attorney D'Arruda $2,250 and the
record evidence indicates the cost of the
legal services Attorney D'Arruda provided
exceeded that payment. However, the June 2,
2010 fee agreement between L.N. and Attorney
D'Arruda's law firm stated that L.N. would
be provided with "a written accounting of
all fees incurred in the matter and a refund
of any advanced fees, if any, that have not
been earned or advanced costs that have not
been used." Attorney D'Arruda testified
that he was willing to pay $250 as a refund
to L.N. for unearned fees, and the referee
recommended this court order Attorney
D'Arruda to do so.
¶19 We accept the referee's conclusions
and recommendations regarding the L.N.
matter including the dismissal of Count 5 of
the complaint.
¶20 The referee then considered the
appropriate discipline for Attorney
D'Arruda's misconduct. The OLR sought a 60-
day suspension and restitution to L.N. in
the amount of $250 for unearned advanced
fees. Attorney D'Arruda asked for a public
reprimand.
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¶21 The referee recommends this court
impose a public reprimand. The referee
acknowledges that Attorney D'Arruda
previously received a private reprimand, but
noted the misconduct in this case occurred
at a time when Attorney D'Arruda faced
multiple outside pressures including
dissolution of his small law firm, divorce,
financial pressures, and an excessive
caseload. The referee explicitly noted
that "[f]rom the testimony, these pressures
and distractions are behind him." The
referee noted that character witnesses
described Attorney D'Arruda as a highly
experienced criminal lawyer who
is "competent, dignified and respected."
The referee was mindful that "[a] suspension
at this time and the resulting closure of
his sole practitioner office for several
months could be devastating to his law
practice." We agree.
¶22 Finally, we turn to the issue of
costs. Our general policy is to impose the
full costs of a disciplinary proceeding on
the respondent attorney who is found to have
committed professional misconduct.
_See_ SCR 22.24(1m). We see no reason
to depart from that policy in this matter.
¶23 Accordingly, we adopt the referee's
findings of fact and conclusions of law and
determine that a public reprimand is the
appropriate discipline for Attorney
D'Arruda's professional misconduct, together
with restitution to L.N., and payment of
full costs.
¶24 IT IS ORDERED that Attorney Robert
Paul D'Arruda is publicly reprimanded for
his professional misconduct.
¶25 IT IS FURTHER ORDERED that if he has
not already done so, within 60 days of the
date of this order, Attorney Robert Paul
D'Arruda shall pay $250 in restitution to
his former client, L.N.
¶26 IT IS FURTHER ORDERED that, within
60 days of the date of this order, Attorney
Robert Paul D'Arruda shall pay to the Office
of Lawyer Regulation the costs of this
proceeding.
¶27 IT IS FURTHER ORDERED that
restitution is to be completed before
payment of costs to the Office of Lawyer
Regulation.
¶28 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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