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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee
Daniel L. Icenogle's recommendation that the
court suspend the Wisconsin law license of
Attorney Joseph M. Capistrant for a period
of 90 days for professional misconduct. The
referee also recommended that Attorney
Capistrant pay the costs of the proceeding,
which total $574.94 as of June 1, 2015.
¶2 Because no appeal has been filed, we
review the referee's report pursuant to
Supreme Court Rule (SCR) 22.17(2). After
conducting our independent review of the
matter, we agree with the referee that,
based on Attorney Capistrant's failure to
answer the complaint filed by the Office of
Lawyer Regulation (OLR), the OLR is entitled
to a default judgment. We further agree
with the referee that Attorney Capistrant's
professional misconduct warrants a 90-day
suspension of his Wisconsin law license, and
that he should be ordered to pay the full
costs of the proceeding.
¶3 Attorney Capistrant was admitted to
practice law in Wisconsin in 2007. Attorney
Capistrant is also licensed to practice law
in Minnesota.
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¶4 According to the OLR's complaint,
Attorney Capistrant's Wisconsin law license
is currently suspended for his failure to
comply with mandatory continuing legal
education (CLE) reporting requirements,
failure to pay bar dues and assessments, and
failure to file the required trust account
certification.
¶5 According to the OLR's complaint,
Attorney Capistrant's Wisconsin law license
was suspended during certain periods in the
years 2010 through 2012 for his failure to
comply with mandatory CLE reporting
requirements.
¶6 The OLR filed the current complaint
against Attorney Capistrant in October
2014. The complaint alleges eight counts of
professional misconduct in connection with
Attorney Capistrant's work in seven legal
matters during the years 2010 through 2012.
¶7 Repeating the allegations of each
separate matter here is not necessary.
Attorney Capistrant's conduct followed a
common theme. He practiced law with a
suspended law license and without telling
clients, courts, and opposing counsel about
his license suspension. He failed to
diligently pursue certain cases, including
matters that he allowed to languish after
the circuit court or opposing counsel voiced
concerns about his law license status. He
used letterhead that stated he was "admitted
in the State of Wisconsin" when his
Wisconsin law license was suspended.
¶8 The complaint also alleges that in
April 2011, Attorney Capistrant filed a
petition for reinstatement of his Wisconsin
law license, in which he failed to disclose
all incidents of practice during his period
of suspension.
¶9 Based on this course of conduct, the
OLR alleged in its complaint that Attorney
Capistrant:
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• practiced law on behalf of various
clients despite the fact that his Wisconsin
law license had been suspended, contrary to
SCR 31.10(1) and SCR 22.26(2), enforced via
SCR 20:8.4(f) (Count One);
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• failed to act with reasonable
diligence and promptness in several client
matters, contrary to SCR 20:1.3 (Count
Two);
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• failed to advise clients, courts,
and opposing counsel of the suspension of
his Wisconsin law license, and thereby
failed to explain matters to the extent
reasonably necessary to permit his clients
to make an informed decision regarding
representation, contrary to SCR 20:1.4(b)
(Count Three); engaged in conduct involving
dishonesty, fraud, deceit, or
misrepresentation, contrary to SCR 20:8.4(c)
(Count Four); failed to notify his clients
by certified mail of his license suspension
and failed to advise them to seek legal
advice elsewhere, contrary to SCR 22.26(1)
(a) and (b), enforced via SCR 20:8.4(f)
(Count Five); and failed to provide written
notification of his suspension and inability
to act as an attorney to the courts and to
opposing counsel, contrary to SCR 22.26(1)
(c), enforced via SCR 20:8.4(f) (Count
Six);
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• failed to keep his clients
reasonably informed and to explain matters
to the extent reasonably necessary to permit
his clients to make an informed decision
regarding representation, contrary to SCR
20:1.4(a)(3) and SCR 20:1.4(b) (Count
Seven); and
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• made false or misleading
communications about himself and his legal
services, contrary to SCR 20:7.1(a) and SCR
20:7.5(a) (Count Eight).
¶10 The OLR personally served the
complaint and an order to answer on Attorney
Capistrant. Attorney Capistrant failed to
file an answer, and the OLR moved for
default judgment.
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¶11 The referee sent notice of a hearing
on the OLR's motion for default judgment by
certified mail to Attorney Capistrant, who
signed for the certified letter but failed
to appear for the hearing.
¶12 The referee issued a decision
recommending that this court grant the OLR's
motion for default judgment. In so doing,
the referee implicitly incorporated by
reference the allegations in the OLR's
complaint and deemed them established. The
referee also recommended a 90-day suspension
of Attorney Capistrant's Wisconsin law
license and the imposition of the full costs
of this proceeding against him.
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¶13 Attorney Capistrant did not appeal
from the referee's report and
recommendation. Thus, we proceed with our
review of the matter pursuant to SCR 22.17
(2). We review a referee's findings of fact
subject to the clearly erroneous standard.
See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747. We review the
referee's conclusions of law de novo.
Id. We determine the appropriate level
of discipline independent 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.
¶14 We agree with the referee that
Attorney Capistrant should be declared in
default. Although the OLR effected personal
service of its complaint, and although
Attorney Capistrant was given notice of the
hearing on the motion for default judgment,
he failed to appear or present a defense.
Accordingly, we deem it appropriate to
declare him in default.
¶15 We agree with the referee that the
allegations in the OLR's complaint have been
established and that Attorney Capistrant
engaged in the eight counts of misconduct
alleged in the complaint. We further agree
that a 90-day license suspension is an
appropriate sanction for Attorney
Capistrant's misconduct. See, e.g.,
In re Disciplinary Proceedings Against
Grady, 2003 WI 144, 267 Wis. 2d 115, 671
N.W.2d 649 (imposing a 90-day license
suspension for attorney's representation of
clients for two years after license
suspension and his subsequent denial of this
conduct to OLR staff). Finally, we agree
that Attorney Capistrant should pay the full
costs of the proceeding.
¶16 IT IS ORDERED that the license of
Joseph M. Capistrant to practice law in
Wisconsin is suspended for a period of 90
days, effective September 17, 2015.
¶17 IT IS FURTHER ORDERED that within 60
days of the date of this order, Joseph M.
Capistrant shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶18 IT IS FURTHER ORDERED that Joseph M.
Capistrant 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.
¶19 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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