¶14 Former SCR 20:1.7(b) (effective through July 1, 2007) (count twenty):

¶15 Former SCR 20:1.8(a) (effective through July 1, 2007) (counts four, five, nine, fourteen and twenty-four):

¶16 SCR 20:1.15(b)(3) (effective July 1, 2004) (counts thirty-one, thirty-five, and thirty-eight):

¶17 SCR 20:1.15(b)(4) (effective July 1, 2004) (count one):

¶18 SCRs 20:1.1.15(f)(1)a.4 and b. (effective July 1, 2004) (count forty- five):

¶19 SCR 20:1.15(f)(1)b (effective July 1, 2004) (counts thirty-nine, forty and forty- one):

¶20 SCR 20:1.15(f)(1)(e)(4)b (effective July 1, 2004) (count forty-five):

¶21 SCR 20:1.15(g)(1) (effective July 1, 2004) (counts two and twenty-two):

¶22 SCR 20:1.15(j)(1) (effective July 1, 2004) (counts seven, twelve and fifteen):

¶23 SCR 20:8.4(c) (counts one, four, six, eight, nine, ten, eleven, thirteen, sixteen, seventeen, twenty-three, twenty-four, twenty- five, twenty-nine, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty- seven, forty, forty-one, forty-three, and forty-four):

¶24 SCR 20:8.4(f) (count twenty-one):

¶25 SCR 22.03(6) as enforced by 20:8.4(h) (counts twenty-six, twenty-seven and twenty-eight):

¶26 SCR 20:1.15(b)(1) (effective July 1, 2004) (counts sixteen, seventeen, nineteen, twenty-nine, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-nine, forty, forty-one, forty-three, and forty-four):

¶27 SCR 20:1.15(d)(1) (effective July 1, 2004) (counts eighteen, thirty, and forty- two):

¶28 In March 2015, the parties filed a partial stipulation of facts. A four-day evidentiary hearing was held before the referee in April 2015. Attorney Gatzke testified that he recommended that P.S. invest the proceeds from her late husband's life insurance policies in investments at NML, such as mutual funds, but that P.S. told him she was skeptical of investments in the stock market because she had seen what happened to similar investments that her husband handled. Attorney Gatzke testified P.S. told him she felt confident having tangible investments such as real estate and that she did not like paper investments such as mutual funds. He said P.S. knew of his prior successful experience with real estate investments and wanted to be part of it. Attorney Gatzke said P.S. told him she did not want to be publicly listed as the owner of the investments because she was concerned that her late husband's creditors would find out what she owned and try to take it.

¶29 Attorney Gatzke testified there were net profits from the real estate properties in 2007 and 2008 and those went back into the projects. He said as he would sell condominium units and deposit the money back into his trust account, funds would be made available for P.S. and he would write her checks.

¶30 With respect to the Jackson National insurance policy, Attorney Gatzke said he did not obtain a written consent from P.S. and A.S. to represent both of them and he took no steps to have a guardian ad litem appointed for A.S. He noted that the circuit court approved the settlement in the Jackson National case and the court never suggested there was a need for a guardian ad litem.

¶31 Attorney Gatzke said he provided P.S. with transaction logs that described her investments and that he would typically meet with her once a week between 2006 and 2010. He said P.S. moved to Arizona and after the move he would talk to her on the phone about her investments. Attorney Gatzke acknowledged that in late 2009 his trust account ran a deficit because he had overpaid expenses on behalf of P.S. He said in order to bring the trust account back into balance, he had someone loan P.S. $140,000 and put that money back into the trust account.

¶32 P.S. testified she never asked that the $2.5 million initially on deposit at NML be removed from NML. She denied telling Attorney Gatzke she was concerned about investing in the stock market because of how her late husband had dealt with his investment clients.

¶33 Mary Hoeft Smith, the OLR's trust account program administrator, testified at length about her review of Attorney Gatzke's records, and she explained how she calculated the amounts of restitution due to P.S. and A.S.

¶34 P.S's niece testified that after P.S.'s husband died, P.S. seemed to need a lot of help with her financial affairs and paying bills. P.S.'s niece testified that Attorney Gatzke would write P.S. a trust account check every month for her living expenses. P.S.'s niece said she recalled sitting in on meetings where P.S.'s legal business was discussed and in the course of those meetings there was discussion about the real estate investments P.S. was involved in with Attorney Gatzke.

¶39 Attorney Gatzke has appealed. He admits that he made mistakes in recordkeeping and the handling of his trust account, but he characterizes these failings as largely technical in nature. He strenuously argues that the OLR failed to meet its burden of proof that he converted any of P.S.'s funds or any other client's funds. He says to the extent that P.S. lost any money associated with her investment relationship with him, that was a result of the risk inherent in her real estate investments with Attorney Gatzke, a risk which caused losses to both of them because of the downturn in the economy. He argues that P.S. is not a reliable witness and, by contrast, he was a very reliable witness. He complains that the OLR failed to call several witnesses at the evidentiary hearing, including P.S.'s daughters, who were present for some meetings P.S. had with Attorney Gatzke and who presumably could have shed light on the inconsistencies between P.S.'s deposition and hearing testimony and P.S.'s failure to recall the facts and circumstances of Attorney Gatzke's representation and her involvement with Attorney Gatzke in investments. Attorney Gatzke argues the referee should have concluded that if P.S.'s daughters had testified, their testimony would have been adverse to the OLR.

¶40 Attorney Gatzke also argues that he and independent witnesses confirmed he gave P.S. several banker's boxes of documents near the end of his representation of her but P.S. produced only one banker's box of materials as part of these proceedings. Attorney Gatzke says that records contained in the materials he produced to P.S. were no longer available to be used in his defense because she failed to produce them. He argues the referee should have concluded that those materials existed and would not have supported P.S.'s accusations against him.

¶41 Attorney Gatzke argues that because the OLR failed to meet its burden of proving that he converted any of P.S.'s funds, he should not be responsible for restitution to P.S. Attorney Gatzke argues that he credibly testified that he was authorized to make payments to invest in real estate holdings on behalf of P.S., that he explained everything about the investments to P.S., and P.S. was fully aware that the payments were being made on her behalf for investments she approved and wanted to have made. He argues the referee's conclusion that he should pay restitution to P.S. relies solely on P.S.'s credibility, and he asserts P.S.'s position that she was unaware of the investments simply cannot be believed. Attorney Gatzke argues once the investments are properly understood, it is apparent there is no basis for a restitution award to P.S. and in fact, P.S. was overpaid some $76,000.

¶42 Attorney Gatzke also argues that he should not be responsible to A.S. for any restitution stemming from the Jackson National proceeds. He says the proceeds obtained from Jackson National were ultimately disbursed to P.S. and she subsequently used that money for her own personal expenses and benefit. Attorney Gatzke argues in the event those proceeds belonged to A.S., P.S. was unjustly enriched by receiving and using them for her own benefit. Attorney Gatzke also argues that there is a dispute as to whether P.S. or A.S. would be entitled to the proceeds and there is a question of who should be responsible to pay A.S. in the event she is entitled to some of the proceeds. Attorney Gatzke says even if he bears some responsibility to pay A.S., P.S. certainly bears responsibility as well. He suggests that the complete picture of who bears such responsibility should be addressed in a separate civil proceeding in which all parties interested can be joined and the extent of their liability and entitlement to any proceeds can be adjudicated.

¶43 Attorney Gatzke strenuously argues that the referee's recommendation for license revocation is wholly unwarranted. He points out that none of the counts asserted by the OLR allege that Attorney Gatzke's legal representation was deficient in any matter. He asserts the fact that he has not been previously disciplined, that his entire career has been an effort to benefit his community, and that he has been extremely cooperative with the OLR throughout the disciplinary process are significant mitigating factors that the referee should have weighed in determining what discipline is appropriate. He suggests that a suspension of less than five months is the maximum discipline warranted. He agrees that it would be appropriate for the court to require him to have his trust account reviewed by an accountant on a quarterly basis for a period of one year.

¶44 The OLR argues that Attorney Gatzke has failed to show that any of the referee's findings of fact are clearly erroneous. The OLR also notes that where testimony is conflicting, the referee is the ultimate arbiter of credibility. See In re Disciplinary Proceedings Against Lister, 2010 WI 108, ¶32, 329 Wis. 2d 289, 787 N.W.2d 820. The OLR asserts that Attorney Gatzke's attack on P.S.'s credibility does not show that any of the referee's findings of fact are clearly erroneous, and it says an assessment of Attorney Gatzke's credibility also does not show that any of the findings are clearly erroneous.

¶45 While Attorney Gatzke argues that the referee should have drawn a negative inference from the fact that important witnesses, such as P.S.'s daughters, were not called at the evidentiary hearing, the OLR says Attorney Gatzke waived this issue by failing to raise it at trial. The OLR also asserts Attorney Gatzke failed to show that OLR controlled those witnesses, and it says if Attorney Gatzke seriously believed P.S.'s daughters had information material to his defense, he had every opportunity to conduct discovery and depose them. The OLR points out that in fact Attorney Gatzke did depose one of P.S.'s daughters. It says because the daughter is a resident of Arizona, Attorney Gatzke could have used that deposition at trial, but chose not to do so.

¶46 The OLR also says that Attorney Gatzke's claims about the alleged missing boxes of documents is nothing more than another diversionary "straw man" argument. The OLR says Attorney Gatzke makes no showing, beyond mere speculation, that P.S. received and destroyed any records and more importantly, Attorney Gatzke fails to show that the materials he speculates were in the "missing boxes" have any bearing on the conversion claims alleged in the second amended complaint. The OLR goes on to argue that there was ample evidence before the referee to support the referee's findings of conversion. The OLR notes that this court has described conversion as:

In re Disciplinary Proceedings Against Mulligan, 2015 WI 96, ¶36, 365 Wis. 2d 43, 870 N.W.2d 233.

¶47 The OLR asserts there is overwhelming evidence in this case that Attorney Gatzke converted client funds systematically over a period of years and the misconduct cannot be explained away by ignorance or sloppy recordkeeping. The OLR says the referee appropriately noted that the ABA standards for imposing lawyer sanctions provide that "disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client," and where "a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice." ABA Standards, §§ III.C.4.11 and III.C.5.11(b). The OLR says in concluding that the multiple instances of conversion of client funds required revocation, the referee pointed to aggravating factors, including a pattern of misconduct, multiple offenses, refusal to acknowledge wrongdoing, the vulnerability of the victims, together with Attorney Gatzke's substantial experience in the practice of law and his indifference to making restitution. Thus, the OLR argues that revocation is an appropriate sanction.

¶49 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.

¶50 After careful review of this matter, we conclude that there has been 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 Gatzke violated all of the supreme court rules set forth above.

¶51 Turning to the appropriate level of discipline, although Attorney Gatzke's misconduct is serious, we do not find that it rises to the level of requiring revocation of his license to practice law in Wisconsin. Instead, we conclude that a lengthy suspension is an appropriate sanction.

¶52 Attorney Gatzke's recordkeeping and his cavalier handling of his trust account, which included overdrafts and comingling non trust account funds to bring it back into balance, are serious deficiencies. The recordkeeping and trust account violations were not mere technical problems, as Attorney Gatzke has tried to portray them.

¶54 Upon careful consideration, we agree with the referee that Attorney Gatzke should be required to make restitution, in the amounts sought by the OLR, to both P.S. and A.S. We note again that we will affirm the referee's findings of fact unless they are clearly erroneous on the basis of the record before us. The referee's findings of fact as to restitution have not been shown to be clearly erroneous. We recognize that Attorney Gatzke disputes the referee's restitution award, particularly the amount owed to A.S. We emphasize that our holding as to restitution is not intended to preclude a future civil suit to determine if someone other than Attorney Gatzke should be responsible for the restitution awarded to A.S. However, the only parties before us in this proceeding are the OLR and Attorney Gatzke, and given the applicable standard of review, we cannot resolve the potential claims between any other parties. We also agree that Attorney Gatzke should be required to pay the full costs of this disciplinary proceeding, as is the court's general practice.

¶55 Finally, we agree that in the event his license to practice law is reinstated, Attorney Gatzke should be required to submit to trust account monitoring by the OLR for a period of three years.

¶56 IT IS ORDERED that the license of James E. Gatzke to practice law in Wisconsin is suspended for a period of three years, effective June 20, 2016.

¶57 It IS FURTHER ORDERED that James E. Gatzke comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶58 IT IS FURTHER ORDERED that within 60 days of the date of this order, James E. Gatzke shall make restitution to P.S. in the amount of $275,682.07 and to A.S. in the amount of $275,446.25.

¶59 IT IS FURTHER ORDERED that within 60 days of the date of this order, James E. Gatzke pay to the Office of Lawyer Regulation the costs of this proceeding, which are $56,879.77. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of James E. Gatzke to practice law in Wisconsin shall remain suspended until further order of the court.

¶60 IT IS FURTHER ORDERED that the restitution specified above is to be completed prior to paying costs to the Office of Lawyer Regulation.

¶61 IT IS FURTHER ORDERED that in the event James E. Gatzke's license to practice law is reinstated, he should be required to submit to trust account monitoring by the Office of Lawyer Regulation for a period of three years.

¶63 MICHAEL J. GABLEMAN, J. (concurring in part, dissenting in part). I concur in the portion of the opinion suspending Attorney Gatzke's license to practice law for three years, imposing full costs, and requiring him, upon reinstatement, to submit to trust account monitoring. I dissent from the portion of the opinion ordering Attorney Gatzke to make restitution to P.S. and A.S. I believe the issue of restitution should be addressed in a separate civil proceeding.