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Attorney disciplinary proceeding.
Attorney’s license suspended.
¶1 PER CURIAM. We review the
recommendation of the referee that the
license of Robert T. Malloy to practice law
in Wisconsin be suspended for one year as
discipline for professional misconduct. That
misconduct consisted of his mishandling of
client funds and commingling his own funds
with them, failure to keep required trust
account records, failure to respond to
requests from clients for information
concerning their matters, repeated failure
to file or pursue legal matters for which he
was retained, failure to refund unearned
retainers promptly, and repeated failure to
cooperate with the Board of Attorneys
Professional Responsibility (Board) in its
investigation of client grievances.
¶2 We determine that the license
suspension recommended by the referee is
appropriate discipline to impose for
Attorney Malloy’s professional misconduct
established in this proceeding.
Notwithstanding having been disciplined on a
prior occasion for similar misconduct,
Attorney Malloy has continued to ignore his
professional responsibilities in
representing clients and commingle his own
personal and law office funds with funds
belonging to his clients. In addition to the
license suspension, we require that, upon
reinstatement, Attorney Malloy submit to
regular audits of his client trust account
to ensure that he treats client funds
appropriately.
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¶3 Attorney Malloy was admitted to
practice law in Wisconsin in 1992 and
practices in Milwaukee. In July, 1994, he
consented to a public reprimand from the
Board as discipline for failing to appear at
municipal court trials on behalf of three
clients, failing to appear at a hearing on
the court’s order to show cause why he
should not be held in contempt for his
failure to appear at one of those trials,
failing to maintain complete and accurate
trust account records of client funds coming
into his employer’s possession, commingling
his personal and business funds with client
funds in his trust account, and continuing
to practice law while administratively
suspended for nonpayment of State Bar dues.
The referee in this proceeding, Attorney
Joan Kessler, made findings of fact to which
Attorney Malloy stipulated concerning his
conduct in the following matters.
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¶4 When notified that a check drawn on
his trust account to pay a client’s
bankruptcy filing fee had been dishonored,
the Board asked Attorney Malloy to provide
information and records concerning his trust
account. The Board then learned that the
only record Attorney Malloy kept of his
trust account transactions was a check
register and a computer-generated document
that disclosed many discrepancies with bank
records of the trust account’s activity.
Further, Attorney Malloy was using his
client trust account to deposit funds he
identified as fees to which he was entitled
and used funds in that account to pay filing
fees and costs of clients who had no funds
on deposit in it. He also used for personal
purposes the cash clients had given him to
pay fees and costs, subsequently paying
those fees and costs out of the funds in his
trust account that represented his fees in
other cases. Thus, Attorney Malloy failed to
maintain complete and accurate trust account
records, in violation of SCR 20:1.15(e), and
failed to hold client funds in trust
separate from his own funds, in violation of
SCR 20:1.15(a).
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¶5 In another matter, after a client’s
divorce was granted in August, 1995,
Attorney Malloy did not file the final
divorce papers and obtain her former
husband’s signature on a quitclaim deed
until February of the following year. He did
not tell the client he had filed those
papers, and when he did not respond to her
numerous requests that he amend the findings
to include her change of name, the client
retained other counsel to do so. Attorney
Malloy did not respond to letters from the
Board concerning that client’s grievance and
did not produce his client’s file as the
Board requested, in violation of SCR
22.07(2) and (3) and 21.03(4). His failure
to keep the client reasonably informed of
the status of her matter and promptly comply
with reasonable requests for information
concerning it violated SCR 20:1.4(a).
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¶6 In the summer of 1994, the Board sent
Attorney Malloy information concerning
grievances it had received from three other
clients, but he did not respond to numerous
letters from the Board requesting information
about them. He also failed to attend a
confidential investigation meeting conducted
by Board staff. This conduct constituted a
failure to cooperate with the Board during the
course of its investigation, in violation of
SCR 21.03(4) and 22.07(3).
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¶7 In July, 1995, Attorney Malloy was
retained to file a bankruptcy on behalf of a
client, for which he was paid $410. After
numerous calls to him concerning the matter
were not returned, the client retained other
counsel to pursue it. That attorney made
several calls and wrote Attorney Malloy
attempting to ascertain the status of the
bankruptcy and obtain the client’s file, but
Attorney Malloy did not respond. After the
client filed a grievance with the Board in
April, 1996, Attorney Malloy returned the
client’s retainer, but he did not respond to
four letters of inquiry from the Board
requesting information concerning the
grievance or produce the client’s file.
Attorney Malloy’s conduct in this matter
violated SCR 20:1.4(a) and 22.07(2) and
21.03(4).
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¶8 In January, 1996, Attorney Malloy
was retained to represent a woman in a
modification of a divorce judgment to gain
custody of her child, for which he was given
a $200 retainer. He failed to appear at a
meeting to discuss the matter with the
client and never contacted the client again,
despite her repeated attempts to reach him.
He did not respond to numerous letters from
the client requesting information on the
status of the matter or to her many
telephone calls and did not return her
papers or refund her retainer, as she had
requested. Attorney Malloy also failed to
respond to letters from the Board concerning
that client’s grievance or produce the
client’s file as the Board requested.
Attorney Malloy failed to act with
reasonable diligence and promptness in
representing this client, in violation of
SCR 20:1.3, failed to keep the client
informed of the status of her matter and
promptly comply with reasonable requests for
information concerning it, in violation of
SCR 20:1.4(a), failed to return the client’s
property and unearned fee upon termination
of representation, in violation of SCR
20:1.16(d), and failed to cooperate in the
Board’s investigation, in violation of SCR
22.07(2) and (3) and 21.03(4).
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¶9 Attorney Malloy was retained in
August of 1995 to represent a client in a
bankruptcy, for which he received an advance
fee of $210. After obtaining financial
information and bills from the client, he
never contacted her again, failing to
respond to at least weekly telephone calls
from her for a period of six months. He also
did not refund the client’s retainer. He
thus failed to act with reasonable diligence
and promptness in pursuing the client’s
legal matter, in violation of SCR 20:1.3,
failed to respond to her reasonable requests
for information, in violation of SCR
20:1.4(a), violated SCR 20:1.16(d) by
failing to return her retainer, and failed
to provide a written response to the
client’s grievance and produce the client’s
file at the Board’s request during its
investigation, in violation of SCR 22.07(2)
and (3) and 21.03(4).
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¶10 Finally, Attorney Malloy was
retained in July of 1993 to represent a
client on an employment discrimination
claim. After negotiations with the employer
proved unsuccessful, Attorney Malloy failed
to file the claim with the appropriate state
agency by the statutory deadline. He then
drafted a complaint and attempted to file it
in federal court, but his check in payment
of the filing fee that was drawn on his
trust account was returned for insufficient
funds. His second attempt to pay the filing
fee resulted in a second check drawn on that
account being dishonored, following which
the court dismissed the complaint. Attorney
Malloy did not inform his client of either
the filing or of the dismissal of the
complaint. His failure to act with
reasonable diligence and promptness in
representing this client violated SCR
20:1.3, and his failure to keep the client
reasonably informed of the status of the
matter violated SCR 20:1.4(a).
¶11 In recommending a one-year license
suspension as discipline for that
misconduct, the referee emphasized that
Attorney Malloy’s mishandling of client
funds in his trust account was not intended
for his own personal gain. The referee also
noted that the misconduct established in
this proceeding was substantially similar to
the conduct for which he was publicly
reprimanded in 1994 and that the reprimand
obviously was insufficient to impress upon
Attorney Malloy the necessity of maintaining
adequate records of trust account
transactions and properly handling client
funds coming into his possession.
¶12 In addition to the license
suspension, the referee recommended that, as
a condition of reinstatement of his license,
Attorney Malloy be required to demonstrate
affirmatively that he has corrected the
problems that led to his professional
misconduct. In that regard, the referee had
noted that Attorney Malloy practices law
with no support services other than an
answering service and relies almost
exclusively on oral communications with
clients. The referee also asserted that he
lacks an understanding of the purposes for
detailed trust account records and the
segregation of his own funds from those of
his clients. The referee considered it
significant that Attorney Malloy had not
instituted any reforms in his practice while
this disciplinary proceeding was pending.
¶13 We adopt the referee’s findings of
fact and conclusions of law and determine
that the recommended one-year license
suspension is appropriate discipline to
impose for Attorney Malloy’s professional
misconduct. In addition, as a condition of
reinstatement of his license following the
period of suspension, Attorney Malloy shall
establish to the satisfaction of the Board
and the court that his practice of law will
be conducted in such a way as to keep him in
regular contact with his clients and ensure
that he make scheduled court appearances and
otherwise meet his obligations to clients
and maintain the required recordkeeping in
respect to his client trust account. In the
latter regard, we also impose upon Attorney
Malloy as a condition of his continued
practice for two years following
reinstatement regular audits of his trust
account under supervision of the Board to
ensure that his recordkeeping and handling
of client funds is being carried out
appropriately.
¶14 IT IS ORDERED that the license of
Robert T. Malloy to practice law in
Wisconsin is suspended for a period of one
year, commencing June 10, 1997.
¶15 IT IS FURTHER ORDERED that, upon
reinstatement of his license to practice law
and for a period of two years thereafter,
Robert T. Malloy shall submit to an audit of
his client trust account, at his own cost,
at least quarterly, as required by the Board
of Attorneys Professional Responsibility.
¶16 IT IS FURTHER ORDERED that within 60
days of the date of this order Robert T.
Malloy pay to the Board of Attorneys
Professional Responsibility the costs of
this proceeding, provided that 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 Robert T. Malloy to practice
law in Wisconsin shall remain suspended
until further order of the court.
¶17 IT IS FURTHER ORDERED that Robert T.
Malloy comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been suspended.
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