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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On January 23, 2014,
referee James C. Boll, Jr. issued a report
recommending that Attorney David V. Moss be
declared in default, concluding that
Attorney Moss engaged in numerous counts of
professional misconduct, and recommending
that his license to practice law in
Wisconsin be suspended for nine months, that
he be ordered to make restitution to the
Wisconsin Lawyers' Fund for Client
Protection (Fund), and that he pay the full
costs of this proceeding, which are
$1,123.44 as of February 11, 2014.
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¶2 We conclude that the referee's
findings of fact are supported by
satisfactory and convincing evidence. Since
Attorney Moss failed to present a defense
despite being given the opportunity to do
so, we declare him to be in default. Based
on our independent review of the record, we
conclude that a two-year suspension of
Attorney Moss's license to practice law in
Wisconsin, rather than the nine months
recommended by the referee, is an
appropriate sanction. We also agree that
Attorney Moss should be ordered to make
restitution to the Fund and that he should
be assessed the full costs of the proceeding.
¶3 Attorney Moss was admitted to
practice law in Wisconsin in 2009 and
practiced in Galesville. According to the
record, he now lives in the state of
Oregon. Attorney Moss's Wisconsin law
license is currently suspended for failure
to cooperate with OLR grievance
investigations, failure to pay State Bar of
Wisconsin (State Bar) dues, and non-
compliance with trust account certification
requirements.
¶4 On September 19, 2013, the Office of
Lawyer Regulation (OLR) issued a complaint
against Attorney Moss alleging 35 counts of
misconduct with respect to his handling of
eight client matters.
¶5 The allegations in the 35-page OLR
complaint will not be extensively recited or
repeated here. Counts One through Five of
the complaint arose out of Attorney Moss's
representation of S.H. and her then-husband
J.H., who hired Attorney Moss to represent
them in a joint Chapter 7 bankruptcy
proceeding. Attorney Moss charged them a
$1,000 flat fee. The bankruptcy petition
was never filed. Despite never filing the
bankruptcy petition, Attorney Moss informed
S.H. that he had spent ten hours working on
her case. On February 27, 2012, Attorney
Moss sent S.H. a letter saying he was
closing his office and moving to Oregon.
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¶6 On April 28, 2012, Attorney Moss
sent a letter to the OLR saying he would not
respond to any grievances. He enclosed his
State Bar membership card to serve as his
resignation from the State Bar. On May 25,
2012, the OLR wrote to Attorney Moss
informing him that voluntary resignation is
governed by Supreme Court Rule (SCR) 10.03
(7) and that the OLR would continue to
notify him of any grievance filed against
him.
¶7 In June of 2012, the OLR notified
Attorney Moss of the grievance S.H. had
filed against him and requested a written
response. Attorney Moss failed to respond.
On November 14, 2012, this court temporarily
suspended Attorney Moss's law license.
¶8 S.H. filed a claim against Attorney
Moss with the Fund, and the Fund approved
the claim for $1,000.
¶9 Counts Six through Ten of the OLR's
complaint arose out of Attorney Moss's
representation of G.H., who hired Attorney
Moss to represent him in a Chapter 7
bankruptcy proceeding. Attorney Moss
charged G.H. a $750 flat fee, but never
initiated bankruptcy proceedings. The Fund
approved G.H.'s claim for $750.
¶10 Counts Eleven through Fifteen of the
OLR's complaint arose out of Attorney Moss's
representation of S.J. and J.J., who hired
Attorney Moss to represent them in a joint
Chapter 7 bankruptcy proceeding. Attorney
Moss charged them a $1,000 flat fee. The
bankruptcy petition was never filed. The
Fund approved a claim for S.J. and J.J. for
$1,000.
¶11 Count Sixteen of the OLR's complaint
arose out of Attorney Moss's representation
of S.K., who hired Attorney Moss to
represent him in a Chapter 7 bankruptcy
proceeding. Attorney Moss charged S.K. a
$500 flat fee. Attorney Moss did file a
bankruptcy petition on behalf of S.K. S.K.
subsequently hired Attorney Moss to
represent him in a post-divorce matter in
which a $5,600 money judgment had been
entered against S.K. Attorney Moss agreed
to request sanctions through the bankruptcy
court for the issuance and enforcement of
the money judgment and agreed to file a
Section 1983 lawsuit. Attorney Moss never
requested sanctions through the bankruptcy
court and never filed the promised lawsuit.
¶12 Counts Seventeen and Eighteen of the
OLR's complaint arose out of Attorney Moss's
representation of S.L., who hired Attorney
Moss to represent him in a Chapter 7
bankruptcy proceeding. Attorney Moss
charged S.L. a $1,600 flat fee. In
September of 2010, S.L. purged a bench
warrant, issued as a result of an order for
contempt in a Trempealeau County case, by
posting a $1,000 bond. Attorney Moss filed
the bankruptcy petition on behalf of S.L.,
and he also represented S.L. in two
adversary proceedings. As a result of an
adversary proceeding filed by Attorney Moss
in January of 2011, the $1,000 was returned
to Attorney Moss as a preference. Attorney
Moss told S.L. he would hold the $1,000 in
trust until the bankruptcy was resolved.
S.L. tried to contact Attorney Moss
regarding the status of his bankruptcy and
the $1,000 preference in early February
2011, but Attorney Moss failed to return
S.L.'s phone calls.
¶13 In July of 2011, pursuant to SCRs
22.02(6)(b) and 22.10(4), Attorney Moss
entered into a diversion agreement with the
OLR related to S.L.'s grievance. Attorney
Moss breached the conditions of the
diversion agreement when he failed to
provide to the OLR verification of his
attendance at six continuing legal
education/ethics credit hours of instruction
by July 1, 2012. On August 8, 2012, the OLR
director notified Attorney Moss that he was
terminating the diversion agreement and
referring the matter to investigation. The
record indicates that Attorney Moss returned
the $1,000 to S.L.
¶14 Counts Nineteen through Twenty-Three
of the OLR's complaint arose out of Attorney
Moss's representation of C.L. and S.L., who
hired Attorney Moss to represent them in a
joint Chapter 7 bankruptcy proceeding.
Attorney Moss charged them a $1,400 flat
fee. The L.s informed Attorney Moss that
S.L.'s wages were being garnished as a
result of a money judgment entered against
them in Trempealeau County. Attorney Moss
agreed to take his flat fee from the
previously garnished wages and returned the
leftover funds to the L.s. Attorney Moss
also agreed to negotiate with the L.s'
mortgage lender in an attempt to lower their
interest rate as part of the representation.
¶15 Attorney Moss filed a bankruptcy
petition on behalf of the L.s in March of
2011. In May of 2011, Attorney Moss filed a
reaffirmation agreement regarding the L.s'
mortgage. Attorney Moss also filed an
adversary proceeding to collect S.L.'s
garnished wages. As a part of the
proceeding, the entire preference payment
was returned to Attorney Moss. Attorney
Moss failed to account for and return any of
the leftover funds to the L.s. In September
2011, Attorney Moss filed a revocation of
the reaffirmation agreement. He failed to
inform the L.s of the status or results of
his purported negotiations with their
mortgage lender. He also failed to inform
the L.s that he was terminating his
representation and/or closing his law office
and moving to Oregon, and failed to return
their client file.
¶16 Counts Twenty-Four through Twenty-
Nine of the OLR's complaint arose out of
Attorney Moss's representation of K.Q. and
J.Q., who hired Attorney Moss to represent
them in a joint Chapter 7 bankruptcy
proceeding. Attorney Moss charged them a
$1,500 flat fee. He did not have them sign
a written fee agreement.
¶17 In February 2012, after missing
several scheduled meetings with the Q.s,
Attorney Moss met with them and told them he
was closing his law office and moving to
Oregon. He agreed to continue representing
them after the move. The bankruptcy
petition was never filed. In April 2012,
K.Q. terminated the representation via email
and asked Attorney Moss to return her client
file and unearned fees. The Fund approved a
claim for the Q.s for $1,200.
¶18 Counts Thirty through Thirty-Five of
the OLR's complaint arose out of Attorney
Moss's representation of K.S. and her then-
husband G.G., who hired Attorney Moss to
represent them in a joint Chapter 7
bankruptcy proceeding. Attorney Moss
charged them a $1,500 flat fee. He did not
have them sign a written fee agreement.
Despite agreeing to do so, Attorney Moss
failed to contact the couple's mortgage
lender in an attempt to negotiate a
reaffirmation agreement. From September
2010 through August 2011, Attorney Moss
failed to return most of the couple's phone
calls regarding the status of their
bankruptcy. The parties' mortgage lender
filed a foreclosure action in February 2011,
and a default judgment was granted in April
2011.
¶19 The parties filed for a divorce in
June 2011. In August 2011, Attorney Moss
filed the bankruptcy petition. In October
2011, Attorney Moss had G.G. sign three
reaffirmation agreements, which were filed
in December 2011. Attorney Moss informed
G.G. that K.S. would need to sign a
reaffirmation agreement for her motorcycle,
but Attorney Moss failed to take any further
action regarding the motorcycle.
¶20 From October 2011 through March
2012, Attorney Moss failed to return K.S.'s
numerous phone calls. The parties' divorce
was finalized in December of 2011.
¶21 In February of 2012, G.G. and K.S.
met with Attorney Moss at his Galesville law
office. During the meeting they saw a
handgun in Attorney Moss's lap and in his
hand as he was sitting behind his desk.
Attorney Moss told them he was carrying the
handgun for protection from people who were
hounding him and from clients who stalked
and harassed him.
¶22 Attorney Moss was personally served
with the OLR's complaint on September 20,
2013. He did not file an answer to the
complaint. On December 18, 2013, the
referee sent a letter to Attorney Moss
setting a telephone scheduling conference
for January 15, 2014. Attorney Moss failed
to respond to the letter or appear at the
scheduling conference.
¶23 On January 8, 2014, the OLR filed a
motion for default judgment. At the January
15, 2014 scheduling conference, of which
Attorney Moss had notice, the referee
recommended that Attorney Moss be declared
in default.
¶24 Attorney Moss has not filed an
appeal from the referee's report and
recommendation.
¶25 Although Attorney Moss was given the
opportunity to present a defense to the
OLR's complaint, he failed to do so.
Accordingly, we deem it appropriate to
declare him in default.
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¶26 A referee's findings of fact are
affirmed unless 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. The court may
impose whatever sanction it sees fit,
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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¶27 There is no showing that the
referee's findings of fact are clearly
erroneous. Accordingly, we adopt them. We
also agree with the referee's conclusions of
law that Attorney Moss violated the
following supreme court rules, some of them
in multiple instances: 20:1.3; 20:1.4(a)(3)
and (4); 20:1.5(a); 20:1.5(b)(1) and (2);
20:1.15(d)(1) and (2); 20:1.16(d); 20:8.4
(g); and 22.03(2) and 22.03(6), enforced via
20:8.4(h).
¶28 After careful review of this matter,
we conclude that the nine-month suspension
sought by the OLR and recommended by the
referee is an insufficient sanction for
Attorney Moss's misconduct. Although
Attorney Moss had a license to practice law
in Wisconsin for only slightly more than
three years before his license was
suspended, during that short timeframe he
engaged in repeated misconduct where he took
fees from clients, failed to perform the
work for which he was retained, failed to
communicate with the clients regarding the
status of their matters, and failed to
return fees and client files upon request.
The incident in which Attorney Moss was
brandishing a handgun during a client
meeting is disturbing. We believe that a
two-year suspension of his license to
practice law in Wisconsin is a sanction more
commensurate with the misconduct at issue in
this case.
¶29 A two-year suspension is also
consistent with the level of discipline
imposed in prior cases. For example, in
In re Disciplinary Proceedings Against
Cooper, 2013 WI 55, 348 Wis. 2d 266, 833
N.W.2d 88, we imposed a two-year suspension
in a case involving 42 counts of misconduct
arising out of nine separate client
matters. In In re Disciplinary
Proceedings Against Lucius, 2008 WI 12,
307 Wis. 2d 255, 744 N.W.2d 605, we imposed
a two-year suspension in a case where the
attorney was found to have committed ten
counts of misconduct arising out of six
client matters. Attorney Moss was found to
have committed 35 counts of misconduct in
his handling of eight client matters. A two-
year suspension of his license to practice
law in Wisconsin is an appropriate sanction.
¶30 We agree with the referee that
Attorney Moss should be required to make
restitution to the Fund and that he should
be required to pay the full costs of this
proceeding.
¶31 IT IS ORDERED that the license of
David V. Moss to practice law in Wisconsin
is suspended for a period of two years,
effective the date of this order.
¶32 IT IS FURTHER ORDERED that within 60
days of the date of this order, David V.
Moss should make restitution to the
Wisconsin Lawyers' Fund for Client
Protection as follows: $1,000 attributable
to S.H.; $750 attributable to G.H.; $1,000
attributable to S.J. and J.J.; and $1,200
attributable to K.Q. and J.Q.
¶33 IT IS FURTHER ORDERED that within 60
days of the date of this order, David V.
Moss shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
$1,123.44.
¶34 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the
Office of Lawyer Regulation.
¶35 IT IS FURTHER ORDERED that David V.
Moss shall comply with the provisions of SCR
22.26 concerning the duties of an attorney
whose license to practice law has been
suspended.
¶36 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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