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Paul Polacek (“Polacek”) is a Wisconsin-
licensed attorney whose State Bar
identification number is 1037606. Polacek
practices law in Wisconsin Dells,
Wisconsin. Polacek was first licensed to
practice law in Wisconsin on April 24, 2001.
Regarding a Trust Account Overdraft
Inquiry
In June of 2012, the Office of
Lawyer Regulation (“OLR”) received notice
that Polacek’s IOLTA account was overdrawn
by $172.95. Polacek explained that the
overdraft occurred as a result of a $3,000
payment to a client in settlement of a
matter. Polacek did not have sufficient
funds in his trust account to cover the
$3,000 payment. Polacek informed OLR that
he had moved offices and purchased new
computers and at one point lost his computer
data.
Investigation of Polacek’s trust
account revealed that Polacek had made
multiple electronic transfers from his trust
account to his operating account, and, in
addition, multiple electronic transfers from
his operating account to his trust account.
These transfers occurred in May and June of
2012.
OLR asked Polacek to explain these
transactions. In addition, OLR asked
Polacek to provide a “re-constructed”
transaction register as well as a re-
constructed client ledger for his trust
account for the months of May, June, and
July, 2012. In a follow-up letter dated May
9, 2013, OLR also asked Polacek to provide
account statements from his business or
operating account for the months of May,
June, and July, 2012. Polacek agreed to
provide to OLR the requested information,
but failed to comply with OLR’s request,
notwithstanding an extension and an
additional request for the promised
information.
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By failing to hold the funds provided to him
by his client in trust, separate from his
own property, and by co-mingling personal
funds with trust account funds, on multiple
occasions, Polacek violated SCR 20:1.15(b)
(1), which provides: “A lawyer shall hold
in trust, separate from the lawyer’s own
property, that property of clients and 3rd
parties that is in the lawyer’s possession
in connection with a representation.”
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By disbursing $3,000 in funds from his
client trust account to his client when the
funds were not available, causing an
overdraft in his trust account, Polacek
violated SCR 20:1.15(e)(5), which
provides, “A lawyer shall not disburse funds
from any trust account unless the deposit
from which those funds will be disbursed has
cleared, and the funds are available for
disbursement.”
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By failing to produce trust account records
to OLR, after promising to restore/recreate
such records, but thereafter never producing
the records after the passage of over one
year, Polacek violated SCR 20:1.15(e)(7),
which provides, “All trust account records
have public aspects related to a lawyer's
fitness to practice. Upon request of the
office of lawyer regulation, or upon
direction of the supreme court, the records
shall be submitted to the office of lawyer
regulation for its inspection, audit,
use . . . .”
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By failing to keep complete records of his
client trust account, including a
transaction register, individual client
ledgers, and reconciliation reports, as well
as maintain back up records, Polacek
violated SCR 20:1.15(f), which provides, “A
lawyer who maintains trust account records
by computer shall maintain the transaction
register, client ledgers, and reconciliation
reports in a form that can be reproduced to
printed hard copy. Electronic records must
be regularly backed up by an appropriate
storage device.”
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By failing to respond to OLR’s request for
supplemental information dated May 9, 2013,
Polacek violated SCR 22.03(6), as enforced
through SCR 20:8.4(h), which provides, “In
the course of the investigation, the
respondent’s wilful failure to provide
relevant information, to answer questions
fully, or to furnish documents and the
respondent’s misrepresentation in a
disclosure are misconduct, regardless of the
merits of the matters asserted in the
grievance” and SCR 20:8.4(h), which states,
in relevant part, that, “It is professional
misconduct for a lawyer to . . . (h) fail
to cooperate in the investigation of a
grievance filed with the office of lawyer
regulation as required by SCR 21.15(4), SCR
22.001(9)(b), SCR 22.03(2), 22.03(2), 22.03
(6) or SCR 22.04(1) . . . .”
Regarding a Client Divorce Matter
Polacek represented a client in a
contentious divorce matter. On October 19,
2012, Polacek filed a motion in the
proceeding, accompanied by an affidavit.
According to opposing counsel, Polacek
failed to serve a copy of the motion and
affidavit on him, and the attorney informed
Polacek of the absence of service. Polacek
and opposing counsel exchanged multiple
letters and affidavits regarding the
purported service of the motion, and both
sought relief from the trial court on
the “unknown” motion. Ultimately, it was
discovered that Polacek and his staff had
failed to serve the motion and affidavit on
opposing counsel, and Polacek did not
provide a copy of the motion until almost
two months had passed. Polacek never did
provide a copy of the accompanying
affidavit, which opposing counsel had to
obtain on his own from court files.
Also in October, 2012, Polacek wrote
the trial court a letter regarding
scheduling issues. Again, Polacek did not
provide a copy of the document to opposing
counsel. On two occasions, opposing counsel
requested that Polacek serve him a copy of
the letter, but Polacek declined to provide
a copy. Opposing counsel obtained a copy of
the letter to the court directly from court
staff.
In December, 2012, the trial court
held a hearing on several motions and
ordered the parties to brief issues related
to one of the pending motions. The court
ordered Polacek to file and serve proposed
Findings of Fact and any supplemental legal
argument by January 7, 2013. On January 7,
2013, Polacek filed a pleading in response
to the court’s December, 2012 order.
However, Polacek did not serve a copy of the
document to opposing counsel on or about
January 7, 2013. Records show that Polacek
emailed the pleading to opposing counsel on
January 16, 2013, almost ten days after
filing the document, and did not mail a copy
of the submission to opposing counsel until
January 18, 2013, just days before the date
of the court-ordered response by opposing
counsel.
Following receipt of Polacek’s
submission filed on January 7, 2013 (but not
received until January 16, 2013), opposing
counsel wrote Polacek and complained of
Polacek’s “repeated practice of failing to
timely serve us with documents [filed] with
the court.” Noting that this latest
incident was the third time Polacek had
failed to timely serve filed documents,
opposing counsel warned Polacek that he was
prepared to file a grievance against
Polacek. Notwithstanding repeated requests
for timely submission of filed pleadings,
Polacek filed a Pre-trial Outline with the
trial court (with an accompanying letter to
the court) in May of 2013 but once again
failed to serve the pleading (or letter) on
opposing counsel. Polacek’s staff
confirmed that she had failed to serve the
pleading on opposing counsel. Opposing
counsel once again resorted to the court
clerk to obtain a copy of the pleading and
filed a grievance against Polacek.
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By filing pleadings and correspondence with
the clerk of circuit court without
forwarding copies to opposing counsel in a
timely fashion, Polacek engaged in ex parte
communications with the tribunal, in
violation of SCR 20:3.5(b), which
provides, “A lawyer shall not: . . . (b)
communicate ex parte with [a judge] during
the proceeding unless authorized to do so by
law or court order or for scheduling
purposes if permitted by the court. If
communication between a lawyer and judge has
occurred in order to schedule the matter,
the lawyer involved shall promptly notify
the lawyer for the other party . . . of such
communication.”
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By failing to ensure that his assistant
timely served filed pleadings and
correspondence on opposing counsel, knowing
that his assistant had failed on multiple
occasions to follow specified service rules,
and failing to remedy such lapses, Polacek
violated SCR 20:5.3(c), which provides, “a
lawyer shall be responsible for conduct of
such a person that would be a violation of
the Rules of Professional Conduct if engaged
in by a lawyer if: (1) the lawyer orders, or
with knowledge of the specific conduct,
ratifies the conduct involved, or 2) the
lawyer . . . has direct supervisory
authority over the person, and knows of the
conduct at a time when its consequences can
be avoided or mitigated but fails to take
reasonable remedial action.”
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By failing to serve copies of pleadings and
correspondence filed with the clerk of
circuit court on opposing counsel in a
timely fashion, as required by Wis. Stat. §
801.14, Polacek violated SCR 20:8.4(f),
which provides, “It is professional
misconduct for a lawyer to: . . . violate a
statute, supreme court rule, supreme court
order or supreme court decision regulating
the conduct of lawyers.”
Polacek has two prior and unrelated
private reprimands, imposed in 2009 and in
2011.
In accordance with SCR 22.09,
Attorney Paul Polacek of Wisconsin Dells,
Wisconsin is hereby publicly reprimanded.
Dated this 29th day of April, 2015.
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