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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a report and
recommendation of referee James C. Boll,
approving a stipulation filed by the Office
of Lawyer Regulation (OLR) and Attorney John
F. Koenig. In the stipulation, Attorney
Koenig admitted one count of misconduct as
alleged in the complaint filed by the OLR.
The parties jointly recommended that, as a
sanction for his misconduct, Attorney
Koenig's license to practice law in
Wisconsin be suspended for two years and
that he also be required to make restitution
to his former law firm in the amount of
$12,020. Because Attorney Koenig entered
into a comprehensive stipulation, the OLR
recommends that no costs be assessed against
him.
¶2 Upon careful review of the matter,
we agree with the referee's findings of fact
and conclusions of law. We conclude that a
two-year suspension of Attorney Koenig's
license to practice law is an appropriate
sanction for his misconduct. We further
agree that Attorney Koenig should make
restitution to his former law firm in the
amount of $12,020. Finally, we agree that,
under the specific facts of this case, it is
appropriate not to assess any costs against
Attorney Koenig.
¶3 Attorney Koenig was admitted to
practice law in Wisconsin in 1997 and
practices in Milton. He was previously
employed with the law firm of Kohls and
Associates LLC. The firm practices
primarily in estate planning and frequently
bills on a flat fee basis. Clients are
billed after the work is completed.
¶4 Attorney Koenig's employment with
the firm ended on August 31, 2013, after the
firm discovered that Attorney Koenig had
been embezzling funds from it.
¶5 Attorney Koenig quoted and collected
fees from clients that were larger than what
he reported and turned in to the firm. He
would have clients pay him directly for some
or all of the work he performed. He either
did not report the money to the firm or
would tell the firm that he charged the
client a lesser amount. In some cases,
Attorney Koenig manually created an invoice
for the client that was for a larger amount
than that stated by the firm in its
accounting system. He would keep the
difference between the two invoice amounts.
¶6 Attorney Koenig accepted payments
from the firm's clients without the firm's
knowledge and then cashed those checks at
Summit Credit Union where he maintained an
account. He also received money for legal
work that he performed for acquaintances who
paid him directly. Attorney Koenig normally
performed such work during regular law firm
office hours and he used the firm's
equipment, supplies, and staff. Although a
Kohls firm attorney would have been
permitted to perform work for family or
perhaps close friends at no charge, it was
understood by the firm's employees that any
legal work performed by an employee should
be reported to the firm. It was also
understood by the firm's employees that all
billings for legal work should be reported
to the firm.
¶7 Attorney Koenig received other funds
for honorariums and reimbursements for
presenting continuing legal education
programs or public workshops that he also
did not turn over to the firm.
¶8 After the firm learned of Attorney
Koenig's actions, Attorney Koenig requested
Summit Credit Union to provide all checks
that were presented but not deposited into
his account at the credit union. He
received that information and provided it to
the firm and to the OLR.
¶9 Attorney Koenig admitted accepting a
total of $39,920 in payments for legal work
from firm clients or other parties using
firm resources in 37 separate instances
without notifying the firm of such
payments. As an offset towards the money he
improperly took, Attorney Koenig forfeited
his final paycheck from the firm in the
gross amount of $27,900.
¶10 On July 7, 2014, the OLR filed a
complaint against Attorney Koenig alleging
the following count of misconduct:
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[Count One] By receiving at least
$39,920 in legal fees for legal work he
performed for clients of his law firm
employer or for legal work he performed for
other third parties using the firm's time,
equipment, supplies, and staff without
reporting such fees to the firm, and by
falsifying billing statements that he
provided to the firm in order to cover up
his embezzlement, Koenig violated [Supreme
Court Rule (SCR)] 20:8.4(c) and SCR 20:8.4
(f).
¶11 The complaint sought a two-year
suspension of Attorney Koenig's license to
practice law in Wisconsin. Attorney Koenig
filed an answer on July 29, 2014, admitting
all allegations in the complaint as true.
Referee Boll was appointed on September 4,
2014.
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¶12 On September 30, 2014, the parties
entered into a stipulation whereby Attorney
Koenig agreed to the OLR's recommendation
for a two-year suspension of his license.
The stipulation averred that Attorney Koenig
fully understood the misconduct allegations
and his right to contest the matter; he
fully understood the ramifications of his
entry into the stipulation; he fully
understood his right to consult with
counsel; and his entry into the stipulation
was made knowingly and voluntarily and was
not the result of coercion nor plea-
bargaining.
¶13 On October 30, 2014, the referee
issued his final decision. Based on the
stipulation, the referee found by clear,
satisfactory, and convincing evidence that
Attorney Koenig violated the supreme court
rules as alleged in Count One of the OLR's
complaint. The referee also recommended
that Attorney Koenig's license to practice
law in Wisconsin be suspended for two years
and that he be required to make restitution
to his former law firm in the amount of
$12,020.
¶14 On November 19, 2014, the OLR filed
a statement of costs showing costs in the
amount of $921.63. The OLR takes the
position that, because Attorney Koenig
entered into a comprehensive stipulation, no
costs should be assessed against him.
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¶15 This court will adopt 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. 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.
¶16 We adopt the referee's findings of
fact and conclusions of law that Attorney
Koenig violated the supreme court rules as
alleged in Count One of the OLR's
complaint. We also agree with the referee
that a two-year suspension of Attorney
Koenig's license is an appropriate sanction
for the misconduct at issue here. A two-
year suspension is consistent with the level
of discipline imposed in somewhat similar
cases. See, e.g., In re
Disciplinary Proceedings Against Cotter,
171 Wis. 2d 373, 491 N.W.2d 475 (1992).
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¶17 We also agree with the referee that
Attorney Koenig should be required to make
restitution to his former law firm in the
amount of $12,020. We further agree that,
based on the particular circumstances
present in this matter, it is appropriate
not to assess any costs against Attorney
Koenig.
¶18 IT IS ORDERED that the license of
John F. Koenig to practice law in Wisconsin
is suspended for a period of two years,
effective March 19, 2015.
¶19 IT IS FURTHER ORDERED that within 60
days of the date of this order, John F.
Koenig shall make restitution to the law
firm of Kohls and Associates LLC in the
amount of $12,020.
¶20 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.29(4m)(c).
¶21 IT IS FURTHER ORDERED that John F.
Koenig shall comply with the provisions of
SCR 22.26 concerning the duties of an
attorney whose license to practice law has
been suspended.
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