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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review, pursuant to
Supreme Court Rule (SCR) 22.17(2), the
report of the referee, Reserve Judge Dennis
J. Flynn, recommending that the court
suspend Attorney Thomas J. McClure's license
to practice law in Wisconsin for a period of
six months less one day for 20 counts of
misconduct, and also recommending that
Attorney McClure be required to complete
continuing legal education (CLE) ethics
courses.
¶2 Upon careful review of the matter,
we adopt the referee's findings of fact and
conclusions of law. We conclude, however,
that a five-month suspension of Attorney
McClure's license is an appropriate sanction
for his misconduct. We also conclude that
the full costs of the proceeding, which are
$13,677.99 as of December 1, 2014, should be
assessed against Attorney McClure.
¶3 Attorney McClure was admitted to the
practice of law in Wisconsin in 1980 and
practices in Delafield. He has no prior
disciplinary history.
¶4 On September 26, 2013, the Office of
Lawyer Regulation (OLR) filed a complaint
alleging that Attorney McClure committed 21
counts of misconduct. Ten counts of
misconduct arose out of his handling of
three client manners. The remaining 11
counts consisted of various trust account
violations.
¶5 Referee Flynn was appointed on
February 18, 2014. On September 9, 2014,
the parties filed a stipulation whereby
Attorney McClure admitted the facts
underlying Counts 1-19 of the OLR's
complaint. An evidentiary hearing was held
before the referee in October 2014. The
referee issued his report and recommendation
on November 10, 2014. The referee found
that the OLR had met its burden of proof
with respect to Counts 1-19 and Count 21 of
the OLR's complaint. The referee found that
the OLR did not meet its burden of proof as
to Count 20.
¶6 Counts One-Six of the OLR's
complaint arose out of Attorney McClure's
representation of J.J. In or about May
2007, J.J. hired Attorney McClure to
represent him regarding a claim for personal
injuries that resulted from a motor vehicle
accident. As part of a mediation agreement
signed by J.J. and Attorney McClure, J.J.
agreed to settle his claim against the
driver of the other vehicle and the driver's
insurance company for a payment of $79,000.
In a settlement statement to J.J., Attorney
McClure specified that the McClure Law
Offices' attorney fees and costs were
$26,333.07; the attorneys costs, including a
partial waiver of $72.67, were $747.80; the
outstanding medical bills were $41,919.13;
and the net settlement recovery to J.J. was
$10,000.00.
¶7 J.J. received a net settlement
proceeds check from Attorney McClure in the
amount of $10,000 on June 10, 2008. That
same day, Attorney McClure made payments
with trust account checks to various medical
providers totaling $12,567.20. Over the
next two years, Attorney McClure made
various withdrawals and wrote various checks
out of his trust account which resulted in
insufficient funds remaining in the trust
account to pay J.J.'s outstanding medical
bills as required by the settlement
statement.
¶8 In July of 2010, J.J. wrote to
Attorney McClure saying that several medical
bills were still unpaid and were adversely
affecting J.J.'s credit rating. Attorney
McClure made the final payment to J.J.'s
medical providers in February 2011.
¶9 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney McClure's handling of J.J.'s
settlement:
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[COUNT ONE] By failing to inform
[J.J.] that he had not promptly paid the
medical providers from the settlement funds,
and having paid one of the medical providers
more than a year after the settlement, and
again failing to inform [J.J.] that he had
not paid several medical providers, McClure
violated SCR 20:1.4(a)(3).
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[COUNT TWO] By failing to hold in
trust the funds owed to numerous medical
providers from the settlement, McClure
violated SCR 20:1.15(b)(1).
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[COUNT THREE] By commingling his own
funds with [J.J.'s] settlement funds in his
trust account, McClure violated SCR 20:1.15
(b)(3).
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[COUNT FOUR] By failing to promptly
deliver funds to numerous medical providers,
including six medical providers that did not
receive their funds for more than two years
after the settlement, McClure violated SCR
20:1.15(d)(1).
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[COUNT FIVE] By failing to maintain a
subsidiary individual client ledger for
[J.J.], McClure violated SCR 20:1.15(f)(1)
b.
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[COUNT SIX] By converting [J.J.'s]
settlement funds, which were owed to
numerous medical providers, for his own
personal use and/or delivering the funds to
his other clients or third parties, McClure
violated SCR 20:8.4(c).
¶10 After observing various
irregularities in Attorney McClure's trust
account statements that came to light during
the OLR's investigation into J.J.'s
grievance, the OLR initiated an inquiry into
Attorney McClure's trust account practices.
That inquiry resulted in the 11 counts of
misconduct as enumerated in the OLR's
complaint:
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[COUNT SEVEN] By failing to hold in
trust his clients' funds, separate from his
own personal funds, McClure violated SCR
20:1.15(b)(1).
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[COUNT EIGHT] By commingling his own
funds with the funds of clients and third-
parties in his trust account for at least
four years, McClure violated SCR 20:1.15(b)
(3).
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[COUNT NINE] By making at least 670
in-person cash withdrawals from his trust
account, McClure violated SCR 20:1.15(e)(4)
a.
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[COUNT TEN] Having his trust account
check number 161 returned for insufficient
funds, and therefore disbursing the funds
from his trust account without the funds
being available for disbursement, McClure
violated SCR 20:1.15(e)(5)a.
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[COUNT ELEVEN] By failing to maintain
a transaction register for his trust
account, McClure violated SCR 20:1.15(f)(1)
a.
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[COUNT TWELVE] By failing to maintain
individual client ledgers for his clients,
McClure violated SCR 20:1.15(f)(1)b.
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[COUNT THIRTEEN] By failing to
prepare and retain a printed reconciliation
report on a regular and periodic basis not
less frequently than every 30 days, McClure
violated SCR 20:1.15(f)(1)g.
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[COUNT FOURTEEN] By failing to file
an overdraft notification agreement with OLR
for his trust account, McClure violated SCR
20:1.15(h)(8).
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[COUNT FIFTEEN] By filing false
certificates with the State Bar of Wisconsin
in which he certified that he had complied
with each of the record-keeping
requirements, McClure violated SCR 20:1.15(i)
(4).
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[COUNT SIXTEEN] By placing all monies
received by his office into his trust
account in an effort to protect income from
seizure at a time when he was the subject of
Wisconsin Department of Revenue tax
warrants, McClure violated SCR 20:8.4(c).
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[COUNT SEVENTEEN] By failing to
timely file his state and federal tax
returns for the years of 2008, 2009, and
2010, McClure violated SCR 20:8.4(f).
¶11 The OLR's complaint also alleged
three counts of misconduct arising out of
Attorney McClure's representation of J.K.
J.K. was charged in a Kenosha County case
filed in June of 2011 with Child Abuse-
Intentionally Cause Harm, a class H felony;
Battery, a class A misdemeanor; and
Disorderly Conduct, a class B misdemeanor.
¶12 On June 13, 2011, Attorney McClure
sent an electronic response via
a "legalmatch" website to M.K., J.K.'s
mother, saying that Attorney McClure was a
respected former prosecutor with 20 years of
private practice criminal defense experience
and that Attorney McClure could help J.K.
Attorney McClure told M.K. that he
offered "a free consultation, convenient
evening and weekend appointments and a
simple up front flat fee." Attorney McClure
went on to tell M.K., "The total fee that I
would charge for this case is $2,500,
pending more information from you. The
entire fee payment is due when I take your
case. Standard flat fee for domestic
violence and felony child abuse charge."
¶13 On June 16, 2011, M.K. hired
Attorney McClure to represent her son and
paid Attorney McClure a flat fee of $2,500,
which Attorney McClure deposited directly
into his business account. There is no
documentary evidence of a written fee
agreement between Attorney McClure and M.K.
and/or J.K. J.K. obtained successor
counsel, whose appearance was entered on
September 8, 2011.
¶14 M.K. and J.K. filed a grievance
against Attorney McClure, alleging various
concerns about his representation of J.K.
M.K. stated in the grievance, "Attorney
McClure informed me after I hired him that
it would cost me an additional $2,500.00 if
my son's case went to trial."
¶15 The OLR's complaint alleged three
counts of misconduct with respect to
Attorney McClure's handling of J.K.'s case:
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[COUNT EIGHTEEN] By failing to have a
written fee agreement communicating the
requisite information for his representation
of [J.K.], McClure violated SCR 20:1.5(b)(1)
and (2).
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[COUNT NINETEEN] By depositing
[J.K.'s] unearned advanced fee payment
directly into his business bank account,
without acting in a manner indicating an
intention to use the alternative fee
placement measures stated in SCR 20:1.15(b)
(4m), McClure violated SCR 20:1.15(b)(4).
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[COUNT TWENTY] By informing his new
client that he would charge her an
additional fee for taking the matter to
trial which was double the amount he said he
would charge to handle the engagement,
McClure violated SCR 20:8.4(c).
¶16 Finally, the OLR's complaint alleged
one count of misconduct with respect to
Attorney McClure's representation of C.G.
On February 12, 2010, Attorney McClure sent
an electronic response via the "legalmatch"
website to a member of C.G.'s family,
saying, "I am available immediately and do
not charge for the initial consultation. I
practice in this court regularly and am a
respected former Rock County Asst. DA."
Attorney McClure stated that the total fee
he would charge for the case was $2,500 and
that the entire fee payment would be due
when he took the case.
¶17 C.G. hired Attorney McClure to
represent him on charges of possession of
THC (second offense), a class I felony;
Manufacture/Deliver THC, a class F felony;
and Maintain Drug Trafficking Place, a class
I felony. Attorney McClure was also hired
to represent C.G. in a revocation case.
Both cases were pending in Rock County.
¶18 On February 23, 2010, C.G.'s mother
paid Attorney McClure $2,000 as a partial
payment of the $2,500 flat fee. On April 2,
2010, C.G.'s brother paid Attorney McClure
the final $500 of the flat fee.
¶19 In March of 2012, over a year after
Attorney McClure's representation of C.G.
concluded, C.G. filed a grievance with the
OLR alleging various concerns regarding
Attorney McClure's representation of C.G.
As part of his response to the grievance,
Attorney McClure provided the OLR with a
copy of his entire file. The file contained
no documentary evidence of a written fee
agreement beyond the electronic
communication on "legalmatch."
¶20 The OLR's complaint alleged the
following count of misconduct with respect
to Attorney McClure's representation of C.G.:
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[COUNT TWENTY-ONE] By failing to have
a written fee agreement communicating the
requisite information for his representation
of [C.G.], McClure violated SCR 20:1.5(b)(1)
and (2).
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¶21 By entering into the stipulation,
Attorney McClure admitted the facts
underlying Counts 1-19 of the OLR's
complaint. He contested Counts 20 and 21.
The referee concluded that the OLR failed to
meet its burden of proof as to Count 20.
The referee found that the OLR did meet its
burden of proof as to Count 21. Thus, the
referee found that Attorney McClure
committed 20 counts of misconduct.
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¶22 The referee noted that the main
focus of the evidentiary hearing was on the
appropriate sanction to be imposed in this
case. The referee noted that both parties
recommended some period of license
suspension, with the OLR seeking a two-year
suspension and Attorney McClure seeking a
suspension in the three to five month
range. The referee said the case presented
both aggravating and mitigating factors,
with the aggravating factors including the
fact that there were 20 counts of misconduct
that occurred over a number of years and
involved several clients. The referee said
Attorney McClure's intent as to the
misconduct can be discerned from the
incidents related to the tax warrants, the
comingling of personal and trust account
funds, the withholding of payments due to
J.J.'s medical providers, and the use of
trust account funds for personal purposes.
In addition, the referee noted that J.J.'s
credit was negatively affected as a result
of the late payments made from settlement
funds to medical providers, and the referee
found that Attorney McClure engaged in
deceit with respect to failure to maintain
client communication with J.J.
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¶23 The referee found that numerous
mitigating factors existed in this matter,
including the fact that no monies were lost
to clients or medical providers with respect
to any of the trust account anomalies;
Attorney McClure has no prior disciplinary
history; Attorney McClure cooperated fully
with the OLR in its investigation; Attorney
McClure has made a real effort to provide
restitution to J.J. for the injury to his
credit; and Attorney McClure had many
serious personal problems that impacted his
actions, including the death of his first
grandchild, caring for his elderly parents,
attending the needs of his mentally ill
older brother, and taking on an excessive
number of pro bono cases. The referee found
that Attorney McClure was genuinely
remorseful. The referee said Attorney
McClure is and has been throughout his legal
career a lawyer respected by his clients,
his peers, and the judges before whom he
practiced, and was known for his willingness
to help others and for not seeking personal
wealth. The referee said Attorney McClure
has publicly acknowledged his misconduct to
the faith community at his church as part of
his personal rehabilitation, and the referee
said this demonstrates the attorney's
commitment to not again engage in lawyer
misconduct.
¶24 After noting that the OLR's
complaint alleged 21 separate acts of
misconduct, the referee said:
But something is unusual. Why are
there so many separate Counts charged here?
It appears that Complainant decided to
include in its Complaint every possible
wrong it could find. While that is its
right, it still causes the Referee to wonder
why this happened in a case where the
attorney of over 33 years here in Wisconsin
had never had any prior discipline and no
client or medical provider lost any funds
and OLR knew of the personal hardships which
impacted that attorney during the period of
misconduct. OLR has not challenged
Respondent's assertion of him having many,
many serious personal issues affecting him
during the time period of the misconduct.
It appears to the referee from the case
record that the reason for Complainant
bringing so many Counts was/is to create,
for the Sanction portion of the proceeding,
an impression that a great wrong has
occurred because of the number of findings
of misconduct and, therefore, a major and
significant penalty should be imposed.
The danger with that approach is that
the prosecutor then is forever encouraged to
overcharge in cases where there is clear
wrong-doing on one or a few Counts in order
to argue for and obtain the imposition of
ever more severe sanctions. Here the
Respondent acknowledged his wrongdoing as
can be seen by the stipulation that was
received into the case record. But when all
is said and done the Respondent still is
seen to have committed acts of misconduct in
the areas of his Trust Account, his fee
agreement/communication document and
dishonesty. Saying the foregoing is in no
way an effort to diminish the misconduct
that occurred. But did Respondent's conduct
warrant a complaint with 21 separate
Counts? A schoolyard metaphor would be that
piling on was occurring by youngsters during
the recess.
. . . .
In this case it appears that the
prosecutor has filed an unreasonable and
excessive number of Counts, not because it
could meet its burden, but in order to
coerce and unfairly impact that portion of
the proceedings that addresses sanctions.
The referee doesn't know what should be the
exact number of Counts in this case, but 21
would appear clearly excessive and intended
to influence the sanctions that should be
imposed. . . . .
¶25 The referee went on to say:
Respondent is a very good, but not a
perfect, man and attorney. On balance in
his 33-plus years as a lawyer he has labored
hard and brought great credit to the legal
profession. . . . That said, however, it
is also clear that he has violated . . . the
Supreme Court Rules that regulate all
attorneys in this State. The public must be
protected from misconduct by an attorney
that causes resources to be converted and
diminishes respect for the rule of law.
While respondent's misconduct was real and
over a substantial period of time, it is
mitigated by his very positive and exemplary
33 year career as a practicing lawyer, his
actions taken to correct the consequences of
his misconduct, and by the great number of
personal struggles that confronted and
motivated him as he lost his moral compass
during the very period when the misconduct
occurred. . . . As a 59 year old man with
no prior lawyer misconduct, he is seeking an
opportunity to be sanctioned fairly and
appropriately.
¶26 The referee recommended that
Attorney McClure's license to practice law
be suspended for a period of six months less
one day, the result being that the attorney
would be able to obtain the reinstatement of
his law license upon demonstrating, through
an affidavit, that he is in full compliance
with all terms and conditions of the order
of suspension. See SCR 22.28(2). The
referee also recommended that Attorney
McClure be ordered to successfully complete
15 hours of CLE ethics courses, at least
eight of which should focus on trust account
administration. The referee further
recommended that Attorney McClure be
responsible for the full costs of the
disciplinary proceeding. The referee said
the sanctions are significant and are
appropriate to address the wrongdoing that
occurred here as well as to achieve the
important goal of deterrence in the future.
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¶27 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.
¶28 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 McClure violated the
supreme court rules set forth above.
¶29 With respect to the appropriate
level of discipline, upon careful review of
the matter, we conclude that a five-month
suspension is appropriate. As the referee
pointed out, Attorney McClure's law practice
now spans more than 34 years and he has no
prior disciplinary history. It is also
significant to reiterate that no clients or
medical providers lost any funds, and that
Attorney McClure fully cooperated with the
OLR and entered into a stipulation whereby
he admitted virtually all the facts alleged
in the complaint. We also find it
significant that the referee, who was in the
best position to judge witness credibility,
found Attorney McClure to be genuinely
remorseful. In addition, the OLR does not
dispute the fact that Attorney McClure was
faced with a multitude of personal problems
during the time period at issue in this case.
¶30 We also share the referee's concern
that there was perhaps an element of
overcharging, or at least parsing the
misconduct into more counts than was truly
warranted. We fully agree with the referee
that Attorney McClure's misconduct was not
insignificant and warrants a suspension.
However, after careful consideration of the
matter, including the various aggravating
and mitigating factors identified by the
referee, we conclude that a five-month
suspension will sufficiently protect the
public from similar misconduct as well as
impose upon Attorney McClure the gravity of
his offenses. While no two attorney
disciplinary cases are precisely the same, a
five-month suspension is generally
consistent with the sanctions imposed in
somewhat analogous situations. See,
e.g., In re Disciplinary Proceedings
Against Wood, 2013 WI 11, 345 Wis. 2d 279,
825 N.W.2d 473 (six-month suspension imposed
for 28 counts of misconduct, including
multiple trust account violations). We
further agree with the referee's
recommendation that Attorney McClure should
be required to successfully complete 15
hours of CLE ethics courses, with at least
eight of those hours focusing on trust
account administration. Finally, we agree
with the referee that Attorney McClure
should bear the full costs of this
proceeding.
¶31 IT IS ORDERED that the license of
Thomas J. McClure to practice law in
Wisconsin is suspended for a period of five
months, effective April 9, 2015.
¶32 IT IS FURTHER ORDERED that, as a
condition of the reinstatement of his
license to practice law in Wisconsin, Thomas
J. McClure shall successfully complete 15
hours of continuing legal education ethics
courses, with at least eight of those hours
focusing on trust account administration.
¶33 IT IS FURTHER ORDERED that within 60
days of the date of this order, Thomas J.
McClure should pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $13,677.99.
¶34 IT IS FURTHER ORDERED that Thomas J.
McClure 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.
¶35 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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