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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On June 10, 2014,
Referee James J. Winiarski issued a report
recommending that Attorney Everett E. Wood's
license to practice law in Wisconsin be
suspended for 90 days for professional
misconduct, as recommended in a stipulation
executed by the Office of Lawyer Regulation
(OLR) and Attorney Wood. The referee also
recommended that Attorney Wood be required
to pay the full costs of this proceeding,
which are $2,191.38 as of June 30, 2014.
¶2 We agree that Attorney Wood's
professional misconduct warrants a 90-day
suspension. We also agree that Attorney
Wood should be ordered to pay the full costs
of the proceeding.
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¶3 Attorney Wood was admitted to the
State Bar of Wisconsin on June 17, 1992. He
resides in Richfield, Wisconsin. Effective
March 1, 2013, Attorney Wood's license to
practice law was suspended for a period of
six months for 28 counts of misconduct
committed in seven client matters. That
misconduct involved lack of diligence, lack
of communication, failure to hold funds in
trust, and failure to cooperate with the
OLR's investigation. In re Disciplinary
Proceedings Against Wood, 2013 WI 11, 345
Wis. 2d 279, 825 N.W.2d 473. Attorney
Wood's license remains suspended; he has not
petitioned for reinstatement.
¶4 All the allegations of misconduct in
the matter now before the court stem from
Attorney Wood's representation of S.H.
¶5 In January 2010, S.H. hired Attorney
Wood to represent S.H. and his wife in a
dispute with a construction company, GSI
General, Inc. (GSI). In October of 2010,
S.H. gave Attorney Wood $400 for future
litigation expenses or costs. Attorney Wood
agreed to represent S.H. for a one-third
contingency fee. Attorney Wood did not
provide S.H. with a written fee agreement.
Attorney Wood did not hold the entire $400
in trust until expended. Attorney Wood did
not maintain individual client registers or
a transaction register for his trust
account.
¶6 In March of 2011, Attorney Wood
filed suit against GSI on behalf of S.H. In
October of 2011, S.H. and GSI settled the
lawsuit after mediation. GSI agreed to pay
S.H. as follows: $6,000 on or before
February 1, 2012; $2,300 on or before May 1,
2012; and $1,700 on or before October 1,
2012.
¶7 S.H. departed before the negotiation
was complete, so Attorney Wood signed the
agreement on S.H.'s behalf. Attorney Wood
did not send a copy of the settlement
agreement to S.H.
¶8 On or around October 12, 2011, the
mediator sent a bill for $385 to Attorney
Wood. Attorney Wood did not timely pay this
bill, despite having received $400 from S.H.
towards costs.
¶9 On February 1, 2012, GSI's attorney
issued a check for $6,000 payable to
Attorney Wood's trust account. The next
day, Attorney Wood deposited $6,000 into his
trust account but did not promptly notify
S.H., in writing, that Attorney Wood had
received GSI's initial settlement payment.
¶10 On February 3, 2012, Attorney Wood
withdrew $1,866 from his trust account in a
cash transaction, presumably reflecting his
fee portion of the first settlement payment,
but did not provide S.H. with a settlement
accounting at the time.
¶11 In February 2012, S.H. called and
emailed Attorney Wood to inquire about the
settlement payment but could not reach him.
Later that month, Attorney Wood made
additional cash withdrawals from his trust
account. By that time, Attorney Wood had
spent $269 in filing fees and $64 serving
the complaint out of the $400. Therefore,
$67 attributable to S.H. should have
remained in Attorney Wood's trust account,
but his trust account balance was below $36
for multiple days in February 2012.
¶12 On March 1, 2012, S.H. filed a
grievance against Attorney Wood. On or
about March 13, 2012, Attorney Wood sent
S.H. a cashier's check for $4,133,
representing S.H.'s portion of the first
settlement payment together with a refund of
the $400 reflecting pre-paid expenses.
Attorney Wood also provided a settlement
statement.
¶13 On March 21, 2012, the OLR wrote to
Attorney Wood, requiring his written
response to the grievance by April 13,
2012. Attorney Wood did not respond to this
inquiry or to several subsequent requests
for information.
¶14 On May 3, 2012, GSI's attorney
issued a check for $2,300 payable to
Attorney Wood's trust account. The next
day, Attorney Wood deposited these funds
into his trust account. On May 7, 2012,
Attorney Wood advised S.H. by email that he
had received the second payment.
¶15 On May 8, 2012, Attorney Wood
withdrew $766 from his trust account. On
May 10, 2012, Attorney Wood withdrew another
$1,544 from his trust account. That same
day, he sent S.H. a cashier's check for
$1,534, representing S.H.'s portion of the
second payment.
¶16 On May 11, 2012, the OLR received a
response from Attorney Wood, partially
responsive to its investigative request.
However, Attorney Wood then failed to
respond to follow-up requests for more
information until the OLR moved this court
for an order temporarily suspending Attorney
Wood's Wisconsin law license for non-
cooperation.
¶17 On August 12, 2013, the OLR filed a
complaint alleging that Attorney Wood had
engaged in seven counts of misconduct based
on his representation of S.H. On or about
February 13, 2014, following the filing of
an answer and the appointment of the
referee, the parties executed a stipulation
and no contest plea, pursuant to which
Attorney Wood pled "no contest" to the
counts alleged and agreed that the
allegations of the complaint, as amended in
the stipulation, could be used as a factual
basis for a determination of his
misconduct. Both the OLR and Attorney Wood
agreed that a 90-day suspension was
appropriate.
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¶18 As part of the stipulation between
the parties, Attorney Wood noted the
following:
• that the arrangement between S.H.
and Attorney Wood permitted S.H. to elect
the billing method (either hourly or
contingent) once it was known if they would
obtain attorney fees from the defendant;
• that the mediator's bill was
eventually paid;
• that S.H. was informed of the
settlement accounting in detail, knew that
the check was received and of the amount he
was to receive, and failed to return the
disbursement register that was sent to him
confirming receipt of funds and approving
disbursement to him per his selected billing
manner;
• that after February 2012, Attorney
Wood did not receive further communication
from S.H. until early March 2012;
• that Attorney Wood sent S.H. a check
for $4,133 after receiving confirmation that
S.H. had elected a contingency billing
method; and
• that Attorney Wood responded to the
OLR's April 18, 2012 letter, although not
timely.
¶19 The referee afforded both parties
the opportunity for further briefing and
directed the parties to address the
appropriate effective date for discipline
and whether Attorney Wood had sought
reinstatement in relation to his prior
suspension.
¶20 The referee reviewed the complaint
and stipulation and other filings of the
parties and concluded that Attorney Wood
committed the seven counts of misconduct
alleged in the complaint. Specifically, the
complaint alleged, the parties stipulated,
and the referee concluded:
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[Count One] By failing to provide his
client, [S.H.], a written fee agreement
setting forth the terms of their contingent
fee arrangement and to obtain his signature
thereon, [Attorney] Wood violated SCR 20:1.5
(c).
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[Count Two] By failing to keep [S.H.]
informed about the status of the settlement
payment and by failing to respond to
[S.H.'s] requests for information about the
status of the settlement funds that [S.H.]
was due, [Attorney] Wood violated SCR 20:1.4
(a)(3) and (4).
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[Count Three] By failing to hold his
client's settlement funds in trust from the
time that he received the funds until he
disbursed the funds to his client,
[Attorney] Wood violated SCR 20:1.15(b).
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[Count Four] By failing to hold in
trust the $400 advanced to him by his client
for payment of anticipated costs, [Attorney]
Wood violated SCR 20:1.15(b)(4).
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[Count Five] By withdrawing funds
from his client trust account via teller
cash transactions, [Attorney] Wood violated
SCR 20:1.15(e)(4)a.
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[Count Six] By failing to maintain
and preserve complete records of funds he
held in trust, including a transaction
register and individual client ledgers,
[Attorney] Wood violated SCR 20:1.15(e)
(6).
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[Count Seven] By failing to respond
to the [S.H.] grievance within 20 days of
receiving notice that his formal written
response was required, [Attorney] Wood
violated SCR 22.03(2), enforceable via SCR
20:8.4(h). In addition, by delaying his
response to OLR's request for additional
information until compelled by an order to
show cause issued by the Supreme Court,
[Attorney] Wood violated SCR 22.03(6),
enforceable via SCR 20:8.4(h).
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¶21 The referee then considered
appropriate discipline, identifying the
factors considered in determining discipline
for professional misconduct, citing In re
Disciplinary Proceedings Against Carroll,
2001 WI 130, ¶40, 248 Wis. 2d 662, 636
N.W.2d 718, as well as the ABA standards for
discipline. The referee noted that Attorney
Wood had recently received a six-month
suspension for 28 counts of misconduct
involving lack of diligence, lack of
communication with clients, failure to hold
client funds in trust, and failure to
cooperate with the OLR's investigation. The
referee observed that Attorney Wood's
misconduct in the instant matter again
involves failure to keep a client informed
of the status of his case, trust account
violations, and failure to cooperate in an
OLR investigation, in addition to a failure
to have a written fee agreement with a
client. The referee stated:
I am troubled by the fact that
Attorney Wood is again involved in an
attorney disciplinary proceeding wherein
there is lack of communication with a
client, failure to hold funds in trust and
failure to cooperate with an OLR
investigation. This is an unacceptable
pattern of misconduct by Attorney Wood.
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¶22 The referee noted that the
misconduct in this case occurred after the
misconduct in Attorney Wood's prior
disciplinary proceeding, but acknowledged
that much of it occurred while that prior
disciplinary proceeding was pending. The
referee was also troubled by Attorney Wood's
failure to cooperate in the OLR
investigations in both the previous
disciplinary matter and this case.
¶23 On balance, the referee accepted the
parties' joint recommendation and
recommended that Attorney Wood's law license
be suspended for a period of 90 days
commencing the date of this order. He
further recommended that Attorney Wood be
responsible for all the costs of this
disciplinary proceeding, which total
$2,191.38 as of June 30, 2014. No
restitution is requested by the OLR and none
is recommended.
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¶24 No appeal was filed, so we review
this matter pursuant to SCR 22.17(2). We
will affirm the referee's findings of fact
unless they are clearly erroneous. We
review conclusions of law de novo. See
In
re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747. We may impose whatever
sanction we see 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.
¶25 Here, we agree with the referee that
the allegations in the OLR's complaint have
been established and that Attorney Wood
engaged in the seven counts of misconduct
alleged in the complaint, as stipulated by
the parties. We further agree that a 90-day
suspension is an appropriate sanction for
Attorney Wood's misconduct and we agree that
he should pay the full costs of the
proceeding.
¶26 IT IS ORDERED that the license of
Everett E. Wood to practice law in Wisconsin
is suspended for a period of 90 days,
effective the date of this order.
¶27 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.
¶28 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Everett
E. Wood shall comply with the provisions of
SCR 22.26 concerning the duties of any
attorney whose license to practice law has
been suspended.
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