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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. We review a
stipulation filed pursuant to Supreme Court
Rule (SCR) 22.12 by the Office of Lawyer
Regulation (OLR) and Attorney James G.
Moldenhauer. In the stipulation, Attorney
Moldenhauer agrees that he engaged in two
counts of misconduct involving his clients,
G.C. (now deceased), and G.C.'s wife, L.C.
(collectively, the C.s.). Attorney
Moldenhauer also agrees that a 60-day
suspension of his license to practice law in
Wisconsin is an appropriate sanction for his
misconduct. The OLR does not request
restitution, and it also does not seek the
imposition of costs against Attorney
Moldenhauer.
¶2 After careful review of the matter,
we approve the stipulation and agree that a
60-day suspension of Attorney Moldenhauer's
license to practice law is an appropriate
sanction. Because this matter is being
resolved without the appointment of a
referee, we do not impose any costs on
Attorney Moldenhauer. No restitution was
sought and none is ordered.
¶3 Attorney Moldenhauer was admitted to
practice law in Wisconsin in 1982. The most
recent address furnished by Attorney
Moldenhauer to the State Bar of Wisconsin is
in Eau Claire, Wisconsin.
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¶4 Attorney Moldenhauer has a
disciplinary history. In 1996, Attorney
Moldenhauer consented to a private reprimand
for misconduct consisting of failing to act
with reasonable diligence, failing to
communicate properly with a client, and
failing to render a full accounting of
estate funds in respose to a client's
request. Private Reprimand 96-28. In 2006,
Attorney Moldenhauer was publicly
reprimanded for misconduct in two matters.
In the first matter, he failed to act with
reasonable diligence, failed to return a
client's file, and failed to cooperate with
the OLR's investigation. In the second
matter, he failed to provide his client with
an itemized billing statement, failed to
refund the unearned portion of his advanced
fee, and failed to cooperate in the OLR's
investigation. Public Reprimand of James
G. Moldenhauer, 2006-11. In 2008,
Attorney Moldenhauer was publicly
reprimanded for misconduct consisting of
failing to communicate properly with a
client, failing to act with reasonable
diligence, and failing to obey a court
order. Public Reprimand of James G.
Moldenhauer, 2008-01. In 2012, Attorney
Moldenhauer was publicly reprimanded for
misconduct consisting of failing to
communicate properly with a client and
failing to act with reasonable diligence.
Public Reprimand of James G.
Moldenhauer, 2012-13.
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¶5 In September 2015, the OLR filed a
complaint alleging that Attorney Moldenhauer
engaged in two counts of misconduct
involving his clients, the C.s. In March
2016, the OLR and Attorney Moldenhauer filed
a stipulation pursuant to SCR 22.12. We
take the following facts from the parties'
stipulation.
¶6 In 2009, the C.s. hired Attorney
Moldenhauer to represent them in a Wisconsin
Department of Revenue (DOR) tax matter
concerning the 2004 through 2007 tax years.
In July 2011, Attorney Moldenhauer filed a
petition with the Wisconsin Tax Appeals
Commission (Commission) appealing a DOR
decision that disposed of two cases
involving the C.s.
¶7 On October 12, 2011, the Commission
sent a Notice of Telephone Status Conference
to Attorney Moldenhauer informing him that a
telephone status conference would be held
before a Commissioner on December 13, 2011
at 10:30 a.m. The notice stated: "If the
Commission is unable to reach you or your
representative by telephone, the conference
will proceed, and the petitions for review
will be subject to dismissal, pursuant to
Wis. Stat. §§ 802.10(7) and 805.03." In a
subsequent letter to the C.s., Attorney
Moldenhauer stated that he had received the
Notice of Telephone Status Conference, and
that it was not necessary for them to attend
the status conference.
¶8 Attorney Moldenhauer failed to
appear for the December 13, 2011 telephone
status conference, despite the fact that the
Commission called Attorney Moldenhauer's
office four times at or about the scheduled
conference time.
¶9 On December 14, 2011, the Commission
sent a Status Conference Memorandum and
Order to Attorney Moldenhauer. This
document confirmed that Attorney Moldenhauer
did not appear at the December 13, 2011
telephone status conference; scheduled a
telephone status conference for December 21,
2011 at 2:30 p.m.; and warned: "The cases
will be dismissed if Petitioners' attorney
is not present for the status conference."
¶10 Attorney Moldenhauer failed to
appear for the December 21, 2011 telephone
status conference, despite the fact that the
Commission called Attorney Moldenhauer's
office four times at or about the scheduled
conference time.
¶11 During the December 21, 2011
telephone status conference, DOR's attorney
appeared and made a motion to dismiss based
on Attorney Moldenhauer's failure to appear
and failure to prosecute. In a December 22,
2011 Order of Dismissal, the Commission
dismissed the petition for review in the
cases involving the C.s.
¶12 A Notice of Appeal Information was
attached to the December 22, 2011 Order of
Dismissal. The Notice of Appeal Information
had a notice of rights for rehearing or
judicial review, the times allowed for each,
and filing instructions for each option.
¶13 Attorney Moldenhauer did not inform
the C.s. of the December 22, 2011 Order of
Dismissal, nor did he respond to the C.s.'
telephone calls requesting information
regarding the status of the cases, nor did
he file a petition for a rehearing before
the Commission or a petition for judicial
review.
¶14 In approximately March 2012, the
C.s. contacted the Commission to inquire
about the status of the cases. Also in
approximately March 2012, the C.s.
terminated Attorney Moldenhauer's
representation.
¶15 On March 27, 2012, the Commission
sent the C.s., Attorney Moldenhauer, and
DOR's attorney a notice that a telephone
status conference would be held on April 5,
2012 at 11:30 a.m. The C.s., Attorney
Moldenhauer, and DOR's attorney appeared for
this telephone status conference. During
this conference, the Commission informed the
C.s. that the petition to review their cases
was dismissed due to Attorney Moldenhauer's
failure to appear at the December 13 and 21,
2011 telephone status conferences and that
the period of time in which to file an
appeal had expired.
¶16 In August 2012, the C.s. filed a
malpractice and breach of contract action
against Attorney Moldenhauer for his
mishandling of their tax matters. The case
eventually settled for $50,000.
¶17 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Moldenhauer's representation of
the C.s.:
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• Count One: By failing to appear for
telephone status conferences on December 13
and 21, 2011, resulting in dismissal of [the
C.s.'] cases, and thereafter by failing to
file a petition for rehearing or a petition
for judicial review, and by otherwise failing
to act in furtherance of [the C.s.']
interests, [Attorney] Moldenhauer violated SCR
20:1.3.
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• Count Two: By failing to keep [the
C.s.] reasonably informed regarding the status
of the cases, and by failing to inform [the
C.s.] of the December 22, 2011 Order of
Dismissal, and by failing to respond to [the
C.s.'] telephone calls requesting information,
[Attorney] Moldenhauer violated SCR 20:1.4(a)
(3) and (4).
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¶18 In the stipulation, Attorney
Moldenhauer agrees that the factual
allegations in the OLR's complaint are
accurate and that he committed the
professional misconduct charged in the
complaint. The stipulation states that
Attorney Moldenhauer fully understands the
misconduct allegations against him, his
right to contest those allegations, and the
ramifications that would follow from this
court's imposition of the stipulated level
of discipline. The stipulation also
indicates that Attorney Moldenhauer
understands his right to counsel and is
represented by counsel in this matter.
Attorney Moldenhauer verifies that he is
entering into the stipulation knowingly and
voluntarily and that his entry into the
stipulation represents his decision not to
contest this matter. Attorney Moldenhauer
agrees in the stipulation that it would be
appropriate for this court to impose a 60-
day suspension of his license to practice
law in Wisconsin.
¶19 Having considered this matter, we
approve the stipulation and adopt the
stipulated facts and legal conclusions of
professional misconduct. From our
independent review of the matter, we agree
that a 60-day suspension of Attorney
Moldenhauer's license to practice law in
Wisconsin is an appropriate sanction. We
agree with the OLR's observation in its
memorandum in support of the stipulation
that Attorney Moldenhauer's previous private
and public reprimands for similar misconduct
have not impressed upon him the importance
of his ethical obligations. We also note
that in its memorandum, the OLR identifies a
number of arguably similar cases in which we
imposed a 60-day suspension, as is requested
here. See In re Disciplinary
Proceedings Against Ermert, 2007 WI 10,
298 Wis. 2d 622, 726 N.W.2d 250 (attorney
who had been disciplined on five prior
occasions received a 60-day suspension for
lack of diligence, failing to keep a client
informed, and misrepresentation); In re
Disciplinary Proceedings Against Lister,
2010 WI 108, 329 Wis. 2d 289, 787 N.W.2d 820
(attorney who had been disciplined on two
prior occasions received a 60-day suspension
for lack of diligence, failing to keep a
client informed, failing to forward the
client's file to successor counsel and
refund advanced fee payments, and failing to
cooperate with an investigation); In re
Disciplinary Proceedings Against Anderson,
2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100
(attorney who had been disciplined on three
prior occasions received a 60–day suspension
for lack of diligence, failing to keep a
client informed, and failing to explain
matters to a client); In re Disciplinary
Proceedings Against Theobald, 2010 WI 102,
329 Wis. 2d 1, 786 N.W.2d 834 (attorney who
had been disciplined on two prior occasions
received a 60–day suspension for lack of
diligence and failing to keep a client
informed). Although no two disciplinary
matters are identical, we agree with the
OLR's observation that a 60-day suspension
of Attorney Moldenhauer's law license is
consistent with the sanctions imposed in
these arguably similar cases.
¶20 Because Attorney Moldenhauer entered
into a comprehensive stipulation under SCR
22.12, thereby obviating the need for the
appointment of a referee and a full
disciplinary proceeding, we do not impose
any costs in this matter.
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¶21 Because Attorney Moldenhauer entered
into a civil settlement with the C.s.
related to his mishandling of their tax
matters, we agree with the OLR that no
restitution is warranted.
¶22 IT IS ORDERED that the license of
James G. Moldenhauer to practice law in
Wisconsin is suspended for a period of 60
days, effective June 27, 2016.
¶23 IT IS FURTHER ORDERED that James G.
Moldenhauer shall comply with the provisions
of SCR 22.26 concerning the duties of an
attorney whose license to practice law has
been suspended.
¶24 IT IS FURTHER ORDERED that
compliance with all conditions of this
decision is required for reinstatement.
See SCR 22.28(2).
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