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ATTORNEY disciplinary proceeding.
Attorney's license revoked.
¶1 PER CURIAM. The court has before
it a report and recommendation filed on
October 12, 2016, by Referee James G.
Curtis. The report recommends that this
court accept Attorney Thad M. Gegner's
petition for consensual license revocation,
revoke his license to practice law in
Wisconsin, and order him to pay restitution
to certain aggrieved parties, including the
Wisconsin Lawyers' Fund for Client
Protection (the Fund). Attorney Gegner is
the subject of a disciplinary proceeding
alleging that he committed 47 counts of
misconduct in 11 different client matters,
as well as an allegation of practicing law
after suspension. He is also the subject of
four additional pending Office of Lawyer
Regulation (OLR) grievance matters that have
not yet been fully investigated by the OLR.
¶2 We agree with the referee that both
revocation and restitution are appropriate.
We also agree with the referee's
recommendation that Attorney Gegner should
pay the full costs of this proceeding, which
are $2,019.58 as of October 31, 2016.
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¶3 Attorney Gegner was admitted to the
practice of law in Wisconsin in 2003. He
does not have a disciplinary history. His
Wisconsin law license has been suspended
since April 17, 2015, for non-cooperation
with the OLR in certain of the matters at
issue in this case.
¶4 On September 28, 2015, the OLR filed
a complaint against Attorney Gegner, setting
forth 24 counts of misconduct over six
client matters and an allegation of
practicing law after suspension. The
complaint requested a two-year suspension,
plus payment of restitution and costs. On
January 6, 2016, the OLR filed an amended
complaint against Attorney Gegner, setting
forth 47 counts of misconduct over 11 client
matters and an allegation of practicing law
after suspension. The amended complaint
requested revocation, plus payment of
restitution and costs. Attorney Gegner
retained counsel. At the parties' request,
the referee stayed the proceedings while the
parties discussed the possibility of
Attorney Gegner filing a petition for
consensual license revocation pursuant to
Supreme Court Rule (SCR) 22.19. On
September 22, 2016, Attorney Gegner filed
such a petition.
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¶5 In his petition, Attorney Gegner
acknowledges that he cannot successfully
defend himself against the allegations in
the amended complaint, which is attached to
his petition as Appendix A. He also
acknowledges that he cannot successfully
defend himself against four pending
investigative matters that have not been
publicly charged, a summary of which is
attached to his petition as Appendix B.
¶6 On September 29, 2016, the OLR filed
a recommendation supporting Attorney
Gegner's SCR 22.19 petition. The referee
filed a report on October 12, 2016,
recommending revocation and restitution. On
November 30, 2016, the referee filed a
recommendation on costs, in which he advised
the court to impose full costs on Attorney
Gegner. On October 26, 2016, the OLR filed
a restitution statement, which it later
supplemented in a December 29, 2016 filing.
In those filings, the OLR states that
Attorney Gegner should pay restitution as
recommended by the referee.
¶7 No appeal has been filed in this
matter, so our review proceeds pursuant to
SCR 22.17(2).
¶8 We revoke Attorney Gegner's
Wisconsin law license effective the date of
this order. The scope of his misconduct is
vast and troubling. It is not necessary to
set forth the particular factual allegations
of every instance of misconduct in every
client matter involved in this case. Doing
so would be overly cumbersome, given that
the amended complaint alone alleges almost
four dozen misconduct counts, described in
some 231 separately numbered paragraphs. A
synopsis of the information contained in the
attachments to Attorney Gegner's petition
for revocation will provide a sufficient
description of the nature and scope of his
professional misconduct.
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¶9 As stated above, the OLR's amended
complaint in this disciplinary proceeding,
attached as Appendix A to the revocation
petition, sets forth 47 counts of misconduct
involving 11 different clients and an
allegation of practicing law after
suspension. The alleged misconduct involved
violations of the following supreme court
rules: SCR 20:1.3 (failing to act with
reasonable diligence and promptness in
representing a client); SCR 20:1.4(a)(3)
(failing to keep a client reasonably
informed about the status of a matter); SCR
20:1.4(a)(4) (failing to promptly comply
with reasonable requests by the client for
information); SCR 20:1.5(b)(3) (failing to
promptly respond to a client's request for
information concerning fees and expenses);
SCR 20:1.15(b)(4) (failing to deposit
advanced payments of fees and costs into
trust account); SCR 20:1.15(d)(1) (failing
to notify a client promptly after receiving
funds in which a client has an interest and
promptly deliver the funds absent an
agreement or legal requirement to do
otherwise); SCR 20:1.16(d) (failing to take
steps to protect client's interests upon
termination of representation); SCR
20:3.3(a)(1) (knowingly making a false
statement of fact to a tribunal); SCR
20:3.4(c) (knowingly disobeying an
obligation under the rules of a tribunal);
SCR 20:8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation); SCR 22.03(2) and (6),
enforced via SCR 20:8.4(h) (failing to
promptly and fully cooperate with an OLR
investigation); and SCR 31.10(1) (engaging
in the practice of law after a suspension
for failing to satisfy continuing legal
education requirements).
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¶10 The OLR's summary of misconduct
allegations in the four pending
investigative matters that have not been
publicly charged, attached as Appendix B to
the revocation petition, summarizes alleged
violations or potential violations of the
following supreme court rules: SCR 20:1.3
(failing to act with reasonable diligence
and promptness in representing a client);
SCR 20:1.4(a)(3) (failing to keep a client
reasonably informed about the status of a
matter); SCR 20:1.4(a)(4) (failing to
promptly comply with reasonable requests by
the client for information); SCR 20:1.5(a)
(charging an unreasonable fee); SCR
20:1.15(d)(1) (failing to notify a client
promptly after receiving funds in which a
client has an interest and promptly deliver
the funds absent an agreement or legal
requirement to do otherwise); SCR 20:1.15(g)
(1) (failing to notify clients of withdrawal
of non-contingent fees from trust account);
SCR 20:1.16(d) (failing to take steps to
protect a client's interests upon
termination of representation); SCR
20:3.4(c) (knowingly disobeying an
obligation under the rules of a tribunal);
SCR 20:8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation); SCR 21.15(4) (failing to
cooperate with an OLR investigation); SCR
22.03(2) and (6), enforced via SCR 20:8.4(h)
(failing to promptly and fully cooperate
with an OLR investigation); and SCR 22.26
(failing to comply with the duties of a
person whose license to practice law in
Wisconsin has been suspended).
¶11 We find instructive the referee's
synopsis of Attorney Gegner's misconduct:
The facts established by OLR portray a
repeated pattern of serious misconduct from
2011 into 2015. The facts establish a law
practice that was spiraling out of control.
Mr. Gegner would fail to communicate with
his clients and would fail to perform the
legal work and services that were necessary.
He would at times misrepresent the status of
his work to both the clients and court. He
misused and converted client funds and
failed to provide any accounting. The
record establishes numerous aggravating
factors in this case and based on the
Petition for Revocation by Consent, no
mitigating factors have been shown.
"[T]o make matters worse," the referee
noted, "there are at least 13 counts
relating to Mr. Gegner's obstinate failure
to cooperate with OLR's investigations,
contrary to SCR 22.03(2) and (6)."
¶12 Attorney Gegner's petition for
consensual revocation states that he cannot
successfully defend against the allegations
of professional misconduct set forth above.
His petition asserts that he is seeking
consensual revocation freely, voluntarily,
and knowingly, and that restitution should
be imposed. He states that he understands
he is giving up his right to contest the
OLR's allegations. He has counsel in this
matter. The OLR supports Attorney Gegner's
petition.
¶13 As stated above, Referee Curtis has
filed a report in this matter. The referee
determined, based on Attorney Gegner's
petition and the OLR's response, that there
exists clear, satisfactory, and convincing
evidence that Attorney Gegner has engaged in
the misconduct alleged in the OLR's amended
complaint in this disciplinary proceeding
and in the OLR's summary of the matters
still in the investigative process. He
recommends that we accept the petition,
order restitution, and revoke Attorney
Gegner's license to practice law.
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¶14 When reviewing a report and
recommendation in an attorney disciplinary
proceeding, we affirm a referee's findings
of fact unless they are found to be clearly
erroneous. In re Disciplinary Proceedings
Against Inglimo, 2007 WI 126, ¶5, 305 Wis.
2d 71, 740 N.W.2d 125. We review the
referee's conclusions of law on a de novo
basis. Id. We determine the appropriate
level of discipline given the particular
facts of each case, independent of the
referee's recommendation, but benefitting
from it. In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis.
2d 45, 660 N.W.2d 686.
¶15 We agree with the referee that
Attorney Gegner's petition for consensual
revocation should be granted. Attorney
Gegner has engaged in a widespread pattern
of serious professional misconduct that has
harmed his clients. He is either unwilling
or unable to conform his conduct to the
standards that are required to practice law
in this state. Anything less than a
revocation of his law license would unduly
depreciate the seriousness of his
misconduct, fail to protect the public and
the court system from further misconduct,
and inadequately deter similar misbehavior
by other attorneys. Revocation is clearly
deserved.
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¶16 We now consider restitution. The
referee's recommendations for restitution
are consistent with Attorney Gegner's
petition and the OLR's recommendation on
that petition. We order Attorney Gegner to
pay $652.88 to former client Dianna C.;
$1,000 to former client Kristin L.;
$2,638.90 to American Family Mutual
Insurance Company; $3.10 to former client
Diane J.; and $10,894 to the Wisconsin
Lawyers' Fund for Client Protection,
attributable to the Fund's payments to the
following former clients: $3,100 to Dianna
C., $2,694 to Diane J., $1,800 to Cody W.,
$1,700 to Donald C., and $1,600 to Jose O.
¶17 We make one further observation (and
ruling) on the issue of restitution. In the
OLR's December 29, 2016 supplemental
restitution statement, the OLR stated that
it would not seek restitution for a $1,000
payment to Attorney Gegner's former client,
Michelle A., which the Fund approved on
December 14, 2016. The OLR explained that,
notwithstanding this payment by the Fund,
the OLR's investigation did not identify a
reasonably ascertainable amount of
restitution to seek in the Michelle A.
matter, and therefore it had not sought
restitution in this matter, and would not do
so now. Mindful that the Fund is financed
by State Bar of Wisconsin members' annual
fees, we fail to see why the $1,000 payment
by the Fund to Michelle A. should be
financed by members of the bar who have not
engaged in misconduct, as opposed to
Attorney Gegner, who has conceded his
misconduct in the Michelle A. matter. We
acknowledge that the Fund's $1,000 payment
to Michelle A. was not addressed in the
consensual revocation petition or in the
referee's report, but we cannot envision any
scenario in which Attorney Gegner could
avoid reimbursing the Fund for this payment.
We therefore order Attorney Gegner to
reimburse the Fund in this amount. To the
extent that Attorney Gegner disagrees with
this court's ruling on this point, he is
free to move the court to reconsider its
ruling.
¶18 Finally, and consistent with the
referee's recommendation, we determine that
Attorney Gegner should be required to pay
the full costs of this proceeding. See
SCR 22.24(1m).
¶19 IT IS ORDERED that the petition for
consensual license revocation is granted.
¶20 IT IS ORDERED that the license of
Thad M. Gegner to practice law in Wisconsin
is revoked, effective the date of this
order.
¶21 IT IS FURTHER ORDERED that Thad M.
Gegner pay restitution in the following
amounts:
• $652.88 to former client Dianna
C.;
• $1,000 to former client Kristin
L.;
• $2,638.90 to American Family Mutual
Insurance Company;
• $3.10 to former client Diane J.;
and
• $11,894 to the Wisconsin Lawyers'
Fund for Client Protection, attributable to
the Fund's payments to the following former
clients: $3,100 to Dianna C.; $2,694 to
Diane J.; $1,800 to Cody W.; $1,700 to
Donald C.; $1,600 to Jose O; and $1,000 to
Michelle A.
¶22 IT IS FURTHER ORDERED that within 60
days of the date of this order, Thad M.
Gegner shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $2,019.58 as of October 31, 2016.
¶23 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the
Office of Lawyer Regulation.
¶24 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Thad M.
Gegner shall comply with the provisions of
SCR 22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been revoked.
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