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ATTORNEY disciplinary proceeding.
Attorney
publicly reprimanded.
¶1 PER CURIAM. We review a
stipulation pursuant to Supreme Court Rule
(SCR) 22.12 between the Office of Lawyer
Regulation (OLR) and Attorney Holly Lynn
Fulkerson. The stipulation provides that
Attorney Fulkerson committed six counts of
professional misconduct arising out of the
representation of a single client and
jointly requests that the court publicly
reprimand Attorney Fulkerson for her
professional misconduct.
¶2 After carefully reviewing the
matter, we accept the stipulation and impose
the requested public reprimand. We do not
require Attorney Fulkerson to pay any
restitution, as none was requested by the
OLR. Although there was a prior submission
of a proposed consensual public reprimand to
a referee, this disciplinary proceeding has
been resolved by a stipulation under SCR
22.12 without the appointment of a referee.
Thus, we do not impose any costs on Attorney
Fulkerson.
¶3 Attorney Fulkerson was admitted to
the practice of law in this state in June
2001. According to the information provided
to the State Bar, Attorney Fulkerson has
most recently engaged in the private
practice of law in Blue Mounds, Wisconsin.
¶4 Attorney Fulkerson has been the
subject of professional discipline on one
prior occasion. In 2015 she consented to
the imposition of a private reprimand for
failing to act with reasonable diligence,
failing to protect a client's interests,
failing to keep a client reasonably
informed, making a frivolous discovery
request or failing to make reasonably
diligent efforts to comply with a discovery
request, and knowingly disobeying an
obligation under the rules of a tribunal.
Private Reprimand No. 2015-28 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/
002845.html).
¶5 This matter was initially submitted
to a referee as a proposed consensual public
reprimand under SCR 22.09. At that time the
OLR was alleging seven counts of
professional misconduct, which Attorney
Fulkerson conceded. After reviewing the
submission, the referee declined to approve
the consensual reprimand. He pointed to the
presence of seven counts of misconduct and
the existence of the previous private
reprimand. He stated that he was
particularly concerned with the fact that
Attorney Fulkerson had agreed to represent
the clients even though she did not have
prior experience handling medical
malpractice matters and that she appeared
not to have adequately sought guidance from
other experienced attorneys or educated
herself.
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¶6 Following the refusal of the
consensual reprimand, Attorney Fulkerson
sent a lengthy letter to the OLR providing
additional, highly personal mitigating
information. In its memorandum in support
of the current SCR 22.12 stipulation, the
OLR asserts that Attorney Fulkerson has been
"forthright and cooperative" throughout the
OLR's investigation and that her letter did
not attempt to avoid responsibility for or
minimize her conduct. To the contrary, the
OLR states that her letter demonstrated that
she had understood her misconduct and was
making changes in her life that will result
in her being a better, more diligent lawyer.
The OLR then submitted the matter to the
Preliminary Review Committee, which found
cause to proceed on six of the seven
original counts. The OLR then reconsidered
the sanction question, but ultimately
determined that, especially in light of the
mitigating information provided by Attorney
Fulkerson and the totality of the
information in the OLR's file, a public
reprimand was still the most appropriate
level of discipline to seek. The OLR then
concluded that rather than submit a second
consensual reprimand to a referee under SCR
22.09, it would pursue a SCR 22.12
stipulation with Attorney Fulkerson that
would be submitted to this court for a
decision.
¶7 In the resulting stipulation,
Attorney Fulkerson represents that she
understands the misconduct allegations
against her and her right to contest them,
that she admits them, and that she agrees
with the OLR's recommended level of
discipline. Attorney Fulkerson further
states that she understands her right to
consult with another attorney regarding
these matters, that she understands the
ramifications of the stipulated level of
discipline, and that she is entering into
the stipulation knowingly and voluntarily.
The stipulation also states that it was not
the product of plea-bargaining.
¶8 The counts of misconduct to which
Attorney Fulkerson is stipulating arise from
her representation of La.G. and Li.G.
(collectively, "the G.s"). Li.G's illness
and subsequent complications had caused her
to spend nearly a year in various hospitals
and nursing care facilities. The G.s'
health insurance carrier had also denied
coverage for approximately $27,000 in
Li.G.'s medical expenses on the ground that
certain services had been medically
unnecessary. The G.s retained Attorney
Fulkerson to pursue coverage for the unpaid
medical expenses and to address a potential
malpractice claim against certain health-
care providers.
¶9 Attorney Fulkerson initially sent a
letter to the health insurance carrier
appealing the denial of coverage for the
certain medical expenses. The insurer
denied the appeal.
¶10 The G.s and Attorney Fulkerson then
discussed proceeding with a lawsuit.
Attorney Fulkerson agreed to represent the
G.s on a contingent fee basis, but she
failed to draft a written fee agreement
memorializing that fee arrangement.
¶11 In November 2012 the G.s gave a
check in the amount of $270 to Attorney
Fulkerson to cover the filing fee for the
anticipated civil action. Attorney
Fulkerson (or someone on her behalf)
negotiated that check on December 6, 2012,
depositing the funds into Attorney
Fulkerson's personal account. Attorney
Fulkerson has acknowledged to the OLR that
the funds should have been held in trust.
¶12 At the time she began her
representation of the G.s, Attorney
Fulkerson had no experience litigating
medical malpractice cases. Early in the
representation Attorney Fulkerson informed
the G.s of her lack of experience in such
cases, but told them that she believed that
she was familiar with the standards of care
required in medical facilities, as she had
worked in the health-care field for 15
years. Prior to initiating the civil
action, which contained medical malpractice
claims, Attorney Fulkerson did not seek
guidance concerning the specifics of
litigating medical malpractice claims.
During the course of the representation,
Attorney Fulkerson did consult with several
attorneys about general information
concerning litigation procedures and
tactics.
¶13 Attorney Fulkerson prepared a draft
complaint, which she sent to the G.s for
their review in October 2013. The G.s
reviewed the complaint and returned it to
Attorney Fulkerson within a month.
¶14 On June 2, 2014, Attorney Fulkerson
filed a civil action in the Dane County
circuit court on Li.G.'s behalf against the
health insurer and a number of health-care
providers. Pursuant to Wis. Stat. §
655.445(1), because the complaint alleged
claims for bodily injury resulting from the
provision of professional services or the
failure to provide professional services by
health-care providers, Attorney Fulkerson
should have filed a request for mediation
with the director of state courts, but she
failed to do so. It should also be noted
that under Wis. Stat. § 655.445(3), where
mediation must be requested, no discovery
requests may be propounded and no scheduling
or pretrial court conferences may occur
until after the mediation period has
expired.
¶15 In July 2014 Attorney Fulkerson sent
a letter to the circuit court advising that
she would be out of town from August 10 to
October 1, 2014, and asking the court to
hold any conference after that date.
Attorney Fulkerson did acknowledge that she
could be available by telephone if the court
wished to meet with the parties before that
time. Attorney Fulkerson did not send a
copy of the letter to her clients or
otherwise relay this information to them.
¶16 In August 2014 Attorney Fulkerson
sustained an injury, making her unable to
work full-time until February 2015.
¶17 The circuit court did conduct a
scheduling conference on September 24, 2014.
Attorney Fulkerson appeared by telephone.
During the conference opposing counsel again
reminded her of the need to file a request
for mediation.
¶18 Attorney Fulkerson ultimately did
file the mediation request, and a mediation
session was scheduled for February 10, 2015.
Attorney Fulkerson, however, was not
adequately prepared for the mediation, which
prevented the parties and the mediator from
having a meaningful exchange and resulted in
the mediation being terminated.
Consequently, no written report was
prepared.
¶19 In mid-February 2015 Attorney
Fulkerson accepted employment with a large
health insurance company. She began that
position during the first week of March
2015. Attorney Fulkerson, however, did not
inform the G.s of her new position and her
inability to continue to represent them
until May 7, 2015, approximately two months
later. After having been informed of the
situation, the G.s chose to have Attorney
Fulkerson seek a dismissal of the pending
complaint without prejudice. Attorney
Fulkerson filed a motion to withdraw as
counsel. During a subsequent telephone
scheduling conference, Attorney Fulkerson
moved to dismiss the complaint without
prejudice, which the circuit court granted.
¶20 Attorney Fulkerson told the G.s that
she would provide them with the names of
other attorneys they could contact about
taking over the representation. Attorney
Fulkerson, however, failed to ever provide
any such names, despite an email message
from the G.s asking for that information.
¶21 The G.s did eventually meet with
three other attorneys, but all three
declined to accept the representation. One
of those attorneys informed the G.s that
they had until September 13, 2015, to re-
file a complaint before the expiration of
the statute of limitations. Attorney
Fulkerson had failed to advise the G.s of
this deadline. The G.s never re-filed
Li.G.'s complaint, and any claims she might
have had became time-barred.
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¶22 On the basis of these stipulated
facts, Attorney Fulkerson has admitted the
following six counts of professional
misconduct. First, by agreeing to represent
the G.s on a contingent fee basis but
failing to enter into a written fee
agreement signed by the clients, Attorney
Fulkerson violated SCR 20:1.5(c). Second,
Attorney Fulkerson violated former SCR
20:1.15(b)(4) when she deposited the $270
check from the G.s into her personal account
rather than into a client trust account.
Third, by failing to acquire the legal
knowledge needed to represent Li.G. in a
medical malpractice action, including
knowledge regarding the requirement of
mediation in medical malpractice cases,
Attorney Fulkerson violated SCR 20:1.1.
Fourth, Attorney Fulkerson failed to pursue
Li.G.'s claims with reasonable diligence, in
violation of SCR 20:1.3. Fifth, Attorney
Fulkerson's failure to inform the G.s that
if the initial lawsuit on Li.G.'s behalf was
dismissed without prejudice, they would have
until September 13, 2015 to re-file the
action constituted a violation of SCR
20:1.4(b). Finally, Attorney Fulkerson
violated SCR 20:1.16(d) in multiple ways,
including by failing to inform the G.s in a
timely manner that she needed to withdraw
from representing them due to her new
employment; by failing to withdraw from the
representation until two months after she
had begun her new position; by failing to
provide the names of possible successor
counsel, as she had promised; and by failing
to inform the G.'s of the date by which they
would need to re-file the lawsuit to avoid
the claims becoming time-barred.
¶23 Attorney Fulkerson agrees with the
OLR's position that the appropriate level of
discipline for the misconduct described
above would be a public reprimand. In its
memorandum in support of the stipulation,
the OLR compares and contrasts a number of
disciplinary matters with similar types of
misconduct that resulted in public
reprimands or 60-day suspensions. Compare
Public Reprimand of Colleen J. Locke, No.
2013-3 (electronic copy available at
https://compendium.wicourts.gov/app/
raw/002551.html), Public Reprimand of Sarah
Clemment, No. 2011-6 (electronic copy
available at
https://compendium.wicourts.gov/
app/raw/002365.html), and Public Reprimand
of Daniel F. Snyder, No. 2016-5 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/0028
64.html) with In re Disciplinary
Proceedings
Against Moldenhauer, 2016 WI 43, 369 Wis.
2d
1, 879 N.W.2d 605 (imposing 60-day
suspension), and In re Disciplinary
Proceedings Against Boyle, 2015 WI 110,
365
Wis. 2d 649, 872 N.W.2d 637 (imposing 60-day
suspension).
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¶24 In the end we agree with the OLR
that a public reprimand is the appropriate
level of discipline in this case. Attorney
Fulkerson has been admitted to the practice
of law in this state for approximately 17
years and has previously received only a
private reprimand. While her misconduct
here was serious, it did not involve
intentional misconduct or dishonesty. It
was limited to a single client
representation, where Attorney Fulkerson
unfortunately agreed to handle a matter in
an area of the law where she lacked
experience and competence. We also note the
mitigating factors referenced by the OLR.
¶25 We believe that Attorney Fulkerson's
misconduct is similar in nature and severity
to the misconduct committed by Attorney
Locke. Public Reprimand of Colleen J.
Locke, No. 2013-3. Attorney Locke had
received one prior public reprimand, while
Attorney Fulkerson has a previous private
reprimand. Like Attorney Fulkerson,
Attorney Locke agreed to represent a client
in an area of the law in which she had
little experience (a bankruptcy proceeding).
She repeatedly failed to file correct forms
and schedules in the bankruptcy proceeding,
which caused delays, a motion to dismiss
from the bankruptcy trustee, and her
termination from the representation.
Attorney Locke admitted that she had
violated SCRs 20:1.1 (lack of competence),
20:1.3 (lack of diligence), and 20:1.5(b)
and (c) (failure to enter into written fee
agreement and failure to properly explain
basis and rate of the fee). In addition,
unlike Attorney Fulkerson, in a separate
matter Attorney Locke also admitted that she
had violated SCR 20:8.4(c) by falsely
testifying under oath that she had
represented herself in a prior divorce
proceeding. While Attorney Fulkerson has
admitted to a couple more counts of
misconduct than did Attorney Locke, the
primary thrust of both matters is that the
lawyers demonstrated a lack of competence
and a lack of diligence, as well as failed
to enter into proper written fee agreements.
Given Attorney Locke's additional false
testimony under oath, we cannot say that
Attorney Fulkerson deserves a more severe
level of discipline.
¶26 In its memorandum, the OLR states
that it is not seeking restitution. It
notes that the only money Attorney Fulkerson
received from the G.s was the $270. While
Attorney Fulkerson failed to maintain that
amount in trust, she did ultimately use it
to pay filing fees on behalf of the G.s.
Thus, there are no funds belonging to the
G.s that Attorney Fulkerson has wrongfully
retained.
¶27 After carefully reviewing this
matter, we accept the stipulation and impose
the requested public reprimand. For the
reasons given by the OLR, we do not impose
any restitution obligation on Attorney
Fulkerson. Finally, although a referee did
review and refuse a prior proposed
consensual reprimand, this disciplinary
proceeding has been resolved at its outset
through a stipulation without the need for
the appointment of a referee or the
incurring of legal fees by the OLR.
Accordingly, we do not impose costs on
Attorney Fulkerson.
¶28 IT IS ORDERED that Holly Lynn
Fulkerson is publicly reprimanded for her
professional misconduct.
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