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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. On September 12, 2016,
the Office of Lawyer Regulation (OLR) filed
a complaint and motion pursuant to Supreme
Court Rule (SCR) 22.22, requesting this
court suspend Attorney Carl J. Schwedler's
license to practice law in Wisconsin for a
period of six months, as discipline
reciprocal to that imposed by the United
States Patent and Trademark Office (USPTO).
The OLR asked that we order restitution as
described herein and impose costs on
Attorney Schwedler. Upon review, we agree
that it is appropriate to suspend Attorney
Schwedler's law license for a period of six
months. Consistent with the terms of the
decision rendered by the USPTO, if Attorney
Schwedler seeks reinstatement of his license
to practice law in Wisconsin, reinstatement
may require Attorney Schwedler to
demonstrate that he has made restitution to
the client. We decline to impose costs on
Attorney Schwedler.
¶2 Attorney Schwedler was admitted to
practice law in Wisconsin in 1990. He was
registered as a patent attorney by the USPTO
on April 19, 1993. He was admitted to
practice law in California in 2006 and
resides in California.
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¶3 On October 31, 2009, Attorney
Schwedler's Wisconsin law license was
suspended for failure to pay State Bar of
Wisconsin dues. On June 8, 2011, his
Wisconsin law license was further suspended
for failure to comply with continuing legal
education requirements. Attorney
Schwedler's Wisconsin law license remains
administratively suspended. In 2015, the
State Bar of California transferred Attorney
Schwedler to "inactive enrollment" for his
failure to timely file a response to then
pending disciplinary charges. He was
subsequently disbarred. On March 18, 2015,
Attorney Schwedler was administratively
suspended from practice before the USPTO.
He was later excluded from practice before
the USPTO.
¶4 On September 12, 2016, the OLR filed
a complaint against Attorney Schwedler
alleging that, by virtue of the public
sanction imposed by the USPTO on March 21,
2016, Attorney Schwedler is subject to
reciprocal discipline in Wisconsin pursuant
to SCR 22.22. On November 30, 2016, this
court directed Attorney Schwedler to inform
the court in writing within 20 days of any
claim by him, predicated upon the grounds
set forth in SCR 22.22(3), that the
imposition of discipline reciprocal to that
imposed by the USPTO would be unwarranted,
and of the factual basis for any such claim.
Attorney Schwedler did not file a response.
On March 23, 2017 this court issued an order
directing the OLR to respond to a series of
questions regarding this matter. The OLR
filed a response on April 6, 2017.
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¶5 We first observe that the USPTO, a
federal agency with its own licensing and
disciplinary proceedings, is appropriately
considered "another jurisdiction" for
purposes of our reciprocal discipline rule,
SCR 22.22(1). See In Re Discipline of
Peirce, 122 Nev. 77, 78, 128 P.3d 443, 443
(2006), reinstatement granted sub nom. In
re Reinstatement of Peirce, No. 62091,
2014 WL 4804214 (Nev. Sept. 24, 2014);
People v. Hartman, 744 P.2d 482 (Colo.
1987); People v. Bode, 119 P.3d 1098,
1100 (Colo. O.P.D.J. 2005); In
Disciplinary Counsel v. Lapine, 2010-Ohio-
6151, ¶¶12-14, 128 Ohio St.3d 87, 89-90, 942
N.E.2d 328, 330-31.
¶6 Accordingly, we consider the
following facts, which are taken from the
OLR's complaint and from the certified
documents attached to the OLR's complaint
relating to the underlying disciplinary
proceeding.
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¶7 On October 6, 2015, the United States
Office of Enrollment and Discipline (OED)
for the USPTO filed a disciplinary complaint
against Attorney Schwedler. Attorney
Schwedler failed to respond and the OED
eventually sought a default judgment. On
March 21, 2016, the USPTO issued an order
finding Attorney Schwedler in default, such
that he was deemed to have admitted the
allegations in the OED's complaint. The
USPTO then sanctioned Attorney Schwedler for
numerous violations of the USPTO Rules of
Professional Conduct. Essentially, Attorney
Schwedler undertook to represent a client,
G.Y., in a patent application, accepted a
$1,500 retainer, and then abandoned the
client and the patent application, failing
to take any action on the client's behalf.
The Administrative Law Judge (ALJ) concluded
that Attorney Schwedler violated USPTO Rules
of Professional Conduct, as follows:
1. C.F.R §11.103 proscribes failing to
act with reasonable diligence and promptness
in representing a client. Respondent agreed
to take over the representation of a Client
on a [patent] application and told the
Client that he would file a response to the
June 10, 2013, Final Office Action before
September 10, 2013. Respondent failed to
file that response allowing the [patent]
application to become abandoned. After the
[patent] application became abandoned,
Respondent made no efforts to revive it.
These lapses constitute violations of 37
C.F.R. §11.103.
2. 37 C.F.R. §11.104(a)(3) proscribes
failing to keep the client reasonably
informed about the status of a matter.
Respondent agreed to submit the appropriate
filings to the USPTO by September 10, 2013,
but failed to do so. This resulted in the
[patent] application becoming abandoned.
Respondent did not inform the Client of this
development or that Respondent had not filed
the response. It was only after the Client
was notified by Respondent's former firm of
the status that Respondent resumed
communications with the Client. Such conduct
constitutes a violation of 37 C.F.R.
§11.104(a)(3).
3. 37 C.F.R. §11.104(a)(4) proscribes
failing to promptly comply with reasonable
requests for information. As noted [above],
Respondent did not resume communications
with the Client until after the Client's son
began to ask about the status of the
[patent] application. The Client's inquiries
into the status of the [patent] application
were reasonable, especially in light of the
fact that the Client was notified that the
application had become abandoned. However
Respondent's responses, though prompt, were
not compliant with the Client's requests for
information, because Respondent purposely
gave the Client's son incorrect information
by indicating that 'everything is normal
here' when in fact the [patent] application
had become abandoned.
4. 37 C.F.R §11.115(d) proscribes
failing to promptly deliver to a client any
funds or property that the client is
entitled to receive. After the Client
informed Respondent that responsibility for
the prosecution of the [patent] application
had been transferred to another registered
practitioner, the Client requested that the
prototype for the invention be returned to
the Client. Respondent, however, did not
return the prototype to Respondent [sic] as
requested. Accordingly, Respondent violated
37 C.F.R. §11.115(d).
5. 37 C.F.R §11.116(d) proscribes
failing to surrender papers and property to
which the client is entitled and to refund
any advance payment of fee or expense that
has not been earned or incurred upon
termination of the practitioner-client
relationship. The Client agreed to pay
Respondent $1,500 in advance for patent
legal services to be rendered. Respondent
sent a retention letter noting the $1,500
fee to the Client, who promptly paid the
fee. Respondent also sent the Client a
September 18th invoice for $1,500, and
described in the September 18th invoice the
services rendered for the [patent]
application as follows: 'Response to Office
Action from USPTO and filing continued
prosecution application.' However Respondent
never earned this fee, because he never
performed the services agreed to, and
described by, the September 18th invoice.
After the Client informed Respondent that
his responsibility for the prosecution of
the [patent] application had been
transferred to another registered
practitioner, Respondent did not return the
$1,500 fee that the Client prepaid.
Accordingly, Respondent violated 37 C.F.R
§11.116(d).
6. 37 C.F.R. §11.804(c) proscribes
conduct involving dishonesty, fraud, deceit,
or misrepresentation. Respondent agreed to
represent the Client and file a response to
the June 10, 2013, Final Office Action. He
did not do so. Yet, Respondent sent the
Client an invoice suggesting that he had
filed the response and was continuing with
the prosecution of the application. Then
after the Client's son contacted Respondent
regarding the status of the [patent]
application, Respondent sent an e-mail to
the son stating, 'I have everything in order
for filing the response' when in fact, the
[patent] application had become abandoned.
Such statements were misleading and
constitute conduct involving dishonesty and
misrepresentation in violation of 37 C.F.R.
§11.804(c).
7. 37 C.F.R. §11.801(b) proscribes
knowingly failing to respond to lawful
demands for information from a disciplinary
authority. The OED sent Respondent an RFI
that was never answered despite two
subsequent communications prompting
Respondent that his response to the RFI was
due. The OED has provided documentation
indicating that Respondent received all
three pieces of correspondence. By failing
to respond to the RFI and subsequent demands
for a response, Respondent violated 37
C.F.R. §11.801(b).
8. 37 C.F.R. §11.804(d) proscribes
conduct that is prejudicial to the
administration of justice. Respondent
failed to respond to the RFI. Respondent's
conduct undermines the public's confidence
in the profession's ability to regulate
itself and is, therefore, prejudicial to the
administration of justice in violation of 37
C.F.R. §11.801(d).
¶8 The USPTO decision deemed Attorney
Schwedler's actions "knowing and
intentional" and stated that they caused
"actual injury" to the client and warranted
"a severe sanction." Attorney Schwedler was
excluded from practice before the USPTO in
patent, trademark, and other non-patent
cases or matters. See In the Matter
of Carl J. Schwedler, Proc. No. D2015-38
(USPTO Dir. Mar. 21, 2016). As noted,
"exclusion from practice" is effectively
disbarment from practice before the USPTO.
The order states that if Attorney Schwedler
were to seek reinstatement, it may be
conditioned, inter alia, upon restitution to
the client.
¶9 The OLR's complaint against Attorney
Schwedler alleges the following counts of
misconduct:
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Count One: By virtue of the OED
public sanction, Attorney Schwedler is
subject to reciprocal discipline in
Wisconsin pursuant to SCR 22.22.
Count Two: By failing to notify the
OLR of his OED public sanction for
professional misconduct within 20 days of
the effective date of its imposition,
Attorney Schwedler violated SCR
22.22(1).
¶10 We conclude that the facts of record
demonstrate that Attorney Schwedler violated
SCR 22.22(1) by failing to notify the OLR of
his suspension within 20 days of the
effective date of its imposition.
¶11 Under SCR 22.22(3), in reciprocal
discipline matters, this court shall impose
the identical discipline unless one or more
of the exceptions enumerated in the rule is
shown. Attorney Schwedler has not made any
claim or showing that any of the exceptions
to the imposition of reciprocal discipline
set forth in SCR 22.22(3) apply to this
case. The OLR acknowledges that "identical"
discipline cannot be imposed here because
SCR 21.16(1m) does not include "exclusion"
from practice before a court as a form of
discipline available in Wisconsin.
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¶12 The OLR also asserts that a six-
month license suspension is a proper level
of discipline to impose for Attorney
Schwedler's misconduct. The OLR seeks a
six-month suspension, rather than license
revocation, because it believes that
Attorney Schwedler's misconduct justifies a
substantially different discipline in
Wisconsin, as authorized by SCR 22.22(3)(c).
Attorney Schwedler's misconduct involved
neglect, misrepresentation, and failure to
refund fees. The OLR asserts that in
Wisconsin, such misconduct warrants a six-
month suspension. See In re Disciplinary
Proceedings Against Hooker, 2012 WI 100,
343 Wis. 2d 397, 816 N.W.2d 310 (imposing
six-month suspension in reciprocal
discipline case for practicing without a
license, and for neglect and lack of
competence in a bankruptcy proceeding); In
re Disciplinary Proceedings Against
Coplien, 2010 WI 109, 329 Wis. 2d 311, 788
N.W.2d 376 (imposing six-month suspension in
reciprocal matter for failing to act with
reasonable diligence and promptness in
representing a client, failing to keep a
client reasonably informed about the status
of a matter, failing to make reasonable
efforts to expedite litigation consistent
with the interests of the client, failing to
respond to a lawful demand for information
from a disciplinary authority, conduct
prejudicial to the administration of
justice, and conduct that tends to defeat
the administration of justice or to bring
the courts or the legal profession into
disrepute); In re Disciplinary Proceedings
Against Ring, 168 Wis. 2d 817, 484 N.W.2d
336 (1992) (imposing six month suspension in
reciprocal discipline case for failure to
file an appellate brief and failure to keep
the client informed, and lack of candor
rising to dishonesty, deceit or
misrepresentation).
¶13 The OLR emphasizes that a six-month
suspension requires a formal reinstatement
proceeding before the suspended attorney can
be reinstated to the practice of law.
¶14 We agree that identical discipline
is not an option in this case so a different
sanction must be imposed. It is apparent
from the language in the USPTO's decision
that Attorney Schwedler's misconduct was
serious. The sanction imposed by the USPTO
requires a reinstatement proceeding.
Attorney Schwedler has not responded in this
matter and has not challenged the OLR's
recommended sanction. Accordingly, we
accept the OLR's assertion that a six-month
license suspension is appropriate and we
suspend Attorney Schwedler's Wisconsin law
license for six months as discipline
reciprocal to that imposed by the USPTO.
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¶15 The OLR initially asked this court
to order Attorney Schwedler to pay
restitution in the amount of $1,500 to G.Y.
In its April 6, 2017 filing, the OLR revised
its recommendation and asks the Court to
condition Attorney Schwedler's reinstatement
upon making payment to the client in the
amount of $1,500, consistent with the terms
of the USPTO disciplinary order. We agree
and direct that Attorney Schwedler's
reinstatement may be conditioned upon
payment of restitution to G.Y.
¶16 Finally, we decline to impose the
costs of this proceeding on Attorney
Schwedler. See In re Disciplinary
Proceedings Against Hooker, 2012 WI 100,
¶26, 343 Wis. 2d 397, 816 N.W.2d 310 (noting
that in reciprocal discipline cases where a
referee is not appointed, costs are
generally not imposed as there are no
referee expenses and the proceedings are
less involved).
¶17 IT IS ORDERED that the license of
Carl J. Schwedler to practice law in
Wisconsin is suspended for a period of six
months, effective the date of this order.
¶18 IT IS FURTHER ORDERED that, to the
extent he has not already done so, Carl J.
Schwedler 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, compliance with all conditions of the
disciplinary order imposed on him by the
United States Patent and Trade Office, In
the Matter of Carl J. Schwedler, Proc. No.
D2015-38 (USPTO Dir. Mar. 21, 2016), and a
showing that Carl J. Schwedler has paid
restitution to G.Y. may be required for
reinstatement. See SCR 22.29(4)(c).
¶20 IT IS FURTHER ORDERED that the
administrative suspension of Carl J.
Schwedler's license to practice law in
Wisconsin, due to his failure to pay
mandatory bar dues and failure to comply
with continuing legal education
requirements, will remain in effect until
each reason for the administrative
suspension has been rectified, pursuant to
SCR 22.28(1).
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¶21 ANN WALSH BRADLEY, J.
(concurring). I agree with the court's
mandate but I write separately to state my
disagreement with the court's statement in
¶14 of the opinion which states, "We agree
that identical discipline is not an option
in this case so a different sanction must be
imposed." The United States Patent and
Trademark Office (USPTO) excluded Attorney
Carl J. Schwedler from practice. The Office
of Lawyer Regulation (OLR) has advised this
court that "exclusion from practice" before
the USPTO effectively means disbarment for
five years. Majority op., fn 1.
¶22 We could indeed impose identical
discipline. We could revoke Attorney
Schwedler's license to practice law in
Wisconsin under SCR 21.16(1m)(a). See In
re Disciplinary Proceedings Against Peiss,
2017 WI 49, ¶24, _Wis. 2d _, _ N.W.2d
_, (Abrahamson, J. concurring, stating
that "disbarment in Illinois appears to be
identical to license revocation in
Wisconsin.") Rather, in this case we
exercise our discretion and opt to impose a
lesser sanction in the form of a six-month
suspension of Attorney Schwedler's law
license. For the reasons set forth, I write
separately.
¶23 I am authorized to state that
Justice SHIRLEY S. ABRAHAMSON joins this
concurrence.
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