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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney James E.
Hammis appeals a report filed by referee
James C. Boll Jr. on August 5, 2013,
concluding that Attorney Hammis committed
nine counts of professional misconduct and
recommending that this court suspend his
license to practice law in Wisconsin for a
period of four months, that Attorney Hammis
make restitution to a client in the amount
of $995, and that he be required to pay the
full costs of this proceeding, which are
$12,022.38 as of December 2, 2014. Attorney
Hammis asserts that many of the referee's
findings of fact are clearly erroneous. In
the alternative, Attorney Hammis argues
that, even assuming this court finds that he
committed some or all of the counts of
misconduct found by the referee, a public
reprimand would be an appropriate level of
discipline.
¶2 Upon careful review of this matter,
we conclude that a 90-day suspension of
Attorney Hammis's license to practice law is
an appropriate sanction for his misconduct.
We agree with the referee that Attorney
Hammis should make restitution to his former
client in the amount of $995, and that he be
required to pay the full costs of this
proceeding.
¶3 Attorney Hammis was admitted to
practice law in Wisconsin in 1988. He most
recently practiced in Stoughton but
indicates that his primary occupation now is
in the construction trade.
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¶4 In 2011 this court suspended
Attorney Hammis's license for four months
based on a finding that he had engaged in
ten counts of misconduct with respect to two
different clients, practiced law while
administratively suspended, and failed to
cooperate with the investigation of the
Office of Lawyer Regulation (OLR). In re
Disciplinary Proceedings Against Hammis,
2011 WI 3, 331 Wis. 2d 19, 793 N.W.2d 884.
¶5 On April 18, 2012, the OLR filed a
complaint alleging the nine counts of
misconduct that underlie this appeal. The
complaint alleges that on July 20, 2005,
Attorney Hammis was convicted in the Court
of Common Pleas, Tuscarawas County, Ohio of
the crime of reckless endangering, a first
degree misdemeanor under Ohio law. Attorney
Hammis did not report his conviction to the
OLR or to the clerk of this court as
required by supreme court rules. Attorney
Hammis was to pay all court costs in the
Ohio criminal matter. The Tuscarawas County
Clerk of Court prepared an itemized bill of
costs and sent it to Attorney Hammis on
August 24, 2005. The itemized bill of costs
was repeatedly mailed to Attorney Hammis—at
least 26 times—but Ohio court records
indicated he had not paid the costs, which
totaled $232.16 as of September 13, 2010.
¶6 The Ohio criminal matter arose while
Attorney Hammis was the president, operator,
and sole member of ST&E Fabrication, LLC
(ST&E). The OLR's complaint alleged that
ST&E was charged in a separate companion
criminal case in which Attorney Hammis pled
guilty on behalf of ST&E to two felony
counts of illegal transportation of
hazardous waste and illegal disposal of
hazardous waste.
¶7 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Hammis's misdemeanor conviction:
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[COUNT ONE] By engaging in the
conduct leading to his personal misdemeanor
conviction of criminal endangering in
State of Ohio v. James Hammis,
Tuscarawas County (Ohio) Case No. 2005 CR 06
0181, Hammis violated SCR 20:8.4(b).
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[COUNT TWO] By failing to timely
notify OLR and the Clerk of the Wisconsin
Supreme Court of his 2005 Ohio criminal
conviction, Hammis violated SCR 21.15(5)
which is enforced under the Rules of
Professional Conduct via SCR 20:8.4(f).
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[COUNT THREE] By failing to pay the
court costs, as ordered in the judgment in
State of Ohio v. James Hammis,
Tuscarawas County (Ohio) Case No. 2005 CR 06
0181, Hammis violated SCR 20:3.4(c).
¶8 The other six counts of misconduct
alleged in the OLR's complaint arose out of
Attorney Hammis's representation of I.B. On
September 7, 2007, I.B. was found guilty of
two counts of homicide by intoxicated use of
a vehicle and one count of causing injury
while operating under the influence. He was
subsequently sentenced to six years in
prison and seven years and six months of
extended supervision for each of the
homicide counts, plus an additional year in
prison on the causing injury conviction.
¶9 In May of 2010, I.B. contacted
Attorney Hammis regarding legal
representation for the purpose of pursuing a
sentence modification. On May 24, 2010,
Attorney Hammis sent I.B. a letter enclosing
a contract for legal services. I.B. signed
the contract and returned it to Attorney
Hammis. The contract required a $2,000
advance fee. The contract expressly
contemplated that at least a portion of the
required advanced fee would be paid by
I.B.'s mother, L.B. The contract also
provided that at the conclusion of the
representation, a refund of any unearned
advanced fee would be made to I.B.
¶10 On June 1, 2010, in response to
Attorney Hammis's letter of May 24, I.B.
sent Attorney Hammis a cover letter and
copies of the sentencing transcript and pre-
sentence investigation report. On June 9,
2010, I.B. paid Attorney Hammis $995 from
his inmate account. I.B.'s mother paid
another $400 toward the advanced fee by
personal check dated June 26, 2010.
¶11 Attorney Hammis did not deposit any
portion of the $1,395 fee payments into his
client trust account and instead deposited
the funds into his business account.
¶12 Attorney Hammis and I.B. spoke on
June 18, 2010, and discussed an outline of
issues and actions that needed to be taken
on the file. I.B. wrote another letter to
Attorney Hammis on July 14, 2010, in which
he mentioned the prior payments, asked why
he had not received a plan of action for his
case, and asked to be updated on the
financial and legal status. Attorney Hammis
failed to respond.
¶13 On August 6, 2010, I.B. wrote to
Attorney Hammis for the last time, saying he
was unable to pay the $2,000 advanced fee
and that he wanted a refund of the $1,395
previously paid. He also asked that
Attorney Hammis return the sentencing
transcript and pre-sentence investigation
report. Attorney Hammis failed to respond
to the letter and failed to return I.B.'s
transcript and pre-sentence report in a
timely manner.
¶14 On September 14, 2010, L.B. passed
away. Attorney Hammis paid $400 from his
business account toward L.B.'s funeral
expenses. The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Hammis's representation of I.B.:
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[COUNT FOUR] By initially depositing
the unearned advance fee payments for [I.B.]
in his business account rather than holding
the fees in his client trust account until
the fees were earned, and then by not
providing required notices and accounting
upon termination of representation, Hammis
violated SCR 20:1.15(b)(4m)b.1. through
3.
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[COUNT FIVE] By failing to respond to
his client's July 14, 2010 inquiry about
what was happening in his case and by
failing to provide an action plan to [I.B.]
despite stating he would do so, Hammis
violated SCR 20:1.4(a)(3) and (4).
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[COUNT SIX] By failing to respond to
his client's letters of July 14 and August
6, 2010, concerning the advance fee
receipts, a refund, and expenses, Hammis
violated SCR 20:1.5(b)(3).
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[COUNT SEVEN] By retaining the entire
amount of then [sic] fee paid by [I.B.]
despite never accomplishing the service he
had been hired to perform, Hammis violated
SCR 20:1.5(a).
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[COUNT EIGHT] By failing to refund
the unearned advance fee when the client
terminated the representation and by failing
to return the client's transcripts and pre-
sentence investigative report, Hammis
violated SCR 20:1.16(d).
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[COUNT NINE] By failing to provide
relevant information, to answer questions
fully, or to furnish documents and by making
misrepresentations in response to OLR's
investigation of the grievance filed against
him by [I.B.], Hammis violated SCR 22.03(6)
enforced via SCR 20:8.4(h).
¶15 James C. Boll, Jr. was appointed as
referee in the matter. A hearing was held
before the referee on May 14, 2013. The
witnesses at the hearing were Attorney
Hammis; Robert Weber, an OLR investigator;
and G.G., L.B.'s mother.
¶16 At the start of the hearing,
Attorney Hammis objected to the introduction
of any evidence pertaining to ST&E's
conviction for illegally transporting and
disposing of hazardous waste. The referee
said he would allow the admission of such
evidence and would give it the appropriate
weight.
¶17 At the hearing, Attorney Hammis
claimed that he had in fact paid the court
costs associated with his Ohio misdemeanor
conviction. He claimed that the costs were
collected by a collection agency. He had no
formal records from the clerk of court, no
cancelled check, and no receipts or
satisfaction of judgment to prove that he
actually paid the amount.
¶18 Attorney Hammis said he paid $400 to
Gunderson Funeral Home to repay the money
L.B. had advanced for her son's case. I.B.
testified in his deposition that he never
authorized the payment of the $400 to the
funeral home but he would have authorized it
if he had been asked to do so.
¶19 The referee issued his report on
August 5, 2013. The referee found that the
OLR had met its burden of proof with respect
to all nine counts alleged in the OLR's
complaint. While the OLR had sought
restitution in the amount of $1,395 in the
I.B. matter, the referee noted that I.B.
himself testified he would have approved
Attorney Hammis's paying $400 to Gunderson
Funeral Home if he had been asked. The
referee said, "The payment of the money was
a good faith effort by Mr. Hammis to do the
right thing and he should not be penalized
for such an act." Thus, the referee found
that Attorney Hammis should make restitution
to I.B. in the amount of $995.
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¶20 The referee said he was very
troubled by the fact that Attorney Hammis
had been previously suspended for ten counts
of misconduct in five different matters, one
of which was similar to the I.B. matter.
The referee also said he was very troubled
by Attorney Hammis's failure to provide any
credible evidence to challenge the OLR's
charges, and he said Attorney Hammis has
failed to acknowledge any wrongdoing.
Accordingly, although the OLR sought a 90-
day suspension, the referee recommended a
four-month suspension.
¶21 Attorney Hammis stipulated to the
misconduct alleged in Counts One and Two of
the OLR's complaint. He argues that the
referee erred in finding that the OLR met
its burden of proof on the remaining seven
counts. He asserts that many of the
referee's findings of fact are clearly
erroneous, and he argues that the level of
discipline recommended by the referee is far
too harsh, even assuming all counts of
misconduct were proven. He argues that
Counts Five and Six are multiplicitous. He
accuses the OLR of inflating the number of
counts of misconduct. He asserts that the
referee was confused, not objective, and
excessively biased against him. He claims
that L.B.'s mother lied at the evidentiary
hearing.
¶22 The OLR asserts that none of the
referee's findings of fact are clearly
erroneous.
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¶23 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.
¶24 There is no showing that any of 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 Hammis violated all of the
supreme court rules set forth above.
¶25 With respect to the appropriate
level of discipline, after careful review of
the matter, we conclude that a 90-day
suspension is appropriate. This is not the
first time that Attorney Hammis has been
found to have committed professional
misconduct. Some of the behavior in this
case mirrors the misconduct that resulted in
his four-month license suspension back in
2011. Although Attorney Hammis argues that
the referee was biased against him, the
referee found Attorney Hammis's version of
events to be incredible. Credibility
determinations are particularly within the
province of the trier of fact, and we find
no basis to second-guess them.
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¶26 In addition, as an inmate, I.B. was
a particularly vulnerable client. All of
these factors weigh against imposing a
public reprimand. On the other hand, it is
arguable that there may be some overlap
between some of the counts alleged in the
OLR's complaint. On balance, we conclude
that a 90-day suspension, which was the
level of discipline originally sought by the
OLR, rather than the four-month suspension
recommended by the referee, will
sufficiently protect the public from similar
misconduct and impose upon Attorney Hammis
the gravity of the misconduct. We further
agree with the referee's recommendation that
Attorney Hammis be ordered to make
restitution to I.B. in the amount of $995
and that he bear the full costs of this
proceeding.
¶27 IT IS ORDERED that the license of
James E. Hammis to practice law in Wisconsin
is suspended for a period of 90 days,
effective March 19, 2015.
¶28 IT IS FURTHER ORDERED that within 60
days of the date of this order, James E.
Hammis shall pay restitution in the amount
of $995 to I.B.
¶29 IT IS FURTHER ORDERED that within 60
days of the date of this order, James E.
Hammis shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶30 IT IS FURTHER ORDERED that
restitution is to be completed prior to
paying costs to the Office of Lawyer
Regulation.
¶31 IT IS FURTHER ORDERED that James E.
Hammis shall comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
¶32 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28(2).
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