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ATTORNEY disciplinary proceeding.
Attorney publicly reprimanded.
¶1 PER CURIAM. We review the report
of Referee John Nicholas Schweitzer
recommending that Attorney Sarah Clemment be
declared in default, concluding that
Attorney Clemment engaged in professional
misconduct, and recommending that she be
publicly reprimanded. Attorney Clemment
failed to present a defense despite being
given the opportunity to do so, and she did
not oppose the Office of Lawyer Regulation's
(OLR) motion for default. Accordingly, we
declare her to be in default. We also
conclude that a public reprimand is an
appropriate sanction for her misconduct. We
further agree with the referee that Attorney
Clemment should be required to make
restitution in the amount of $5,000, and the
full costs of the proceeding, which are
$802.19 as of April 12, 2018, should be
assessed against her.
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¶2 Attorney Clemment was admitted to
practice law in Wisconsin in 2000 and
practices in Madison. In 2011 she received
a consensual public reprimand for failing to
provide competent representation to a
client, failing to act with reasonable
diligence and promptness in representing a
client, failing to keep the client
reasonably informed about the status of the
matter, and engaging in conduct involving
dishonesty, fraud, deceit or
misrepresentation. Public Reprimand of
Sarah Clemment, No. 2011-6 (electronic copy
available at
https://compendium.wicourts.gov/app/raw/0023
65.html).
¶3 On October 3, 2017, the OLR filed a
complaint against Attorney Clemment alleging
six counts of misconduct arising out of her
representation of D.H. In November 2015,
D.H. had been charged with first-degree
murder in Dane County. In January of 2016,
D.H. hired Attorney Clemment to represent
him. Attorney Clemment had never handled a
homicide case and had never tried a case to
a jury. D.H.'s sister, B.H., paid Attorney
Clemment $5,000 to represent D.H. Attorney
Clemment deposited the $5,000 into her
business account and prepared a written flat
fee agreement outlining the scope of the
representation.
¶4 The circuit court held a preliminary
hearing on January 28, 2016, found probable
cause, and bound D.H. over for trial. There
was DNA and GPS evidence implicating D.H.
¶5 Prior to arraignment, Attorney
Clemment visited D.H. four times while he
was incarcerated at the Dane County jail.
D.H. was arraigned on March 8, 2016.
Attorney Clemment moved for a speedy trial
even though discovery was ongoing. Attorney
Clemment subsequently filed requests for
discovery, a motion to sequester the jury,
and a number of motions in limine seeking to
exclude certain evidence, including evidence
of prior convictions, DNA evidence, and GPS
evidence.
¶6 The circuit court held a hearing on
Attorney Clemment's motions on May 3, 2016.
Attorney Clemment failed to submit any case
law or evidence to support her motion to
sequester the jury and for that reason the
circuit court denied the motion. Attorney
Clemment withdrew her motion in limine to
exclude evidence of prior convictions after
an exchange with the circuit court showed
she had misunderstood the appropriate legal
standard for the motion.
¶7 As to the speedy trial motion, the
circuit court noted that Attorney Clemment
had not hired an investigator, had not
retained any DNA, GPS, or pathology experts,
had not filed a witness list that identified
any witnesses other than those identified by
the state, and had not received additional
discovery forthcoming from the state. In
addition, D.H. was then serving time for
other crimes and thus would not be
prejudiced by having a speedy trial request
denied. The circuit court continued D.H.'s
case and strongly urged Attorney Clemment to
associate more experienced trial counsel to
assist her in the case.
¶8 By this point, Attorney Clemment had
visited D.H. four more times, including two
visits to the Dodge County Correctional
Institution in Waupun. In September of
2016, D.H. was transferred to the Green Bay
Correctional Institution. After April 5,
2016, Attorney Clemment made no additional
personal visits to D.H. but rather
communicated with him by telephone and
letter. Attorney Clemment never associated
any experienced counsel on the case.
¶9 On August 29, 2016, the circuit
court held a hearing on Attorney Clemment's
motion to suppress DNA evidence. The motion
alleged that a search warrant to obtain
D.H.'s DNA was not signed by a judge and was
thus invalid. Testimony and evidence
introduced during the hearing showed that a
judge had signed the search warrant and it
was legally valid. Moreover, even if D.H.'s
motion had been granted, the state would
have simply gotten another search warrant to
obtain the DNA samples, which would defeat
the purpose of the motion. Accordingly, the
circuit court denied the motion.
¶10 During the August 29, 2016 motion
hearing, the circuit court noted that
Attorney Clemment had not filed a witness
list but had simply reserved the right to
call witnesses identified by the state. The
circuit court reminded Attorney Clemment
that she had no right to call the state's
witnesses without specifically referencing
each witness on her own list. The circuit
court scheduled a hearing on the pending
state's motions, and it admonished both
parties to be prepared to talk about the
evidentiary issues. At that time Attorney
Clemment had not filed any non-evidentiary
motions.
¶11 Another motion hearing took place on
September 28, 2016, less than two weeks
before the scheduled trial date. At this
hearing the state noted that Attorney
Clemment had not reviewed any of the
physical evidence in the case despite
numerous offers by the state to schedule a
review of the evidence. Attorney Clemment
said she had been ill.
¶12 During the September 28, 2016
hearing, the circuit court considered the
state's motion in limine regarding a variety
of standard pre-trial evidentiary issues,
such as exclusion of witnesses, exclusion of
evidence not shown, character evidence,
other acts evidence, impeachment by prior
conviction, and alibi evidence. Attorney
Clemment raised no objection to any of the
state's individual requests.
¶13 At one point, after Attorney
Clemment did not object to the exclusion of
"golden rule" comments, the circuit court
asked her if she knew what the "golden rule"
was. Attorney Clemment did not know. The
circuit court asked Attorney Clemment if she
knew what exclusion of witnesses meant, and
she could not adequately answer the question
correctly. Attorney Clemment was also
unable to answer questions from the circuit
court about what "impeachment by prior
conviction" meant, and she was unable to
recite the specific statutory procedures for
addressing when a witness could be impeached
based on a prior conviction.
¶14 The circuit court asked Attorney
Clemment why she did not object to the
exclusion of alibi evidence when it appeared
that she had planned to introduce evidence
at trial showing that D.H. was not at the
scene of the crime. Attorney Clemment could
not adequately answer the circuit court's
questions about the meaning of "effect of
arrest and conviction" or "known or unknown
third party acts evidence." Attorney
Clemment was also unable to explain the
difference between testimonial and non-
testimonial evidence in the context of the
confrontation clause or recall the key
United States Supreme Court case discussing
these issues.
¶15 At this point the circuit court
determined that Attorney Clemment was not
competent to represent D.H., that she had
not acted diligently in representing him,
that she had not communicated appropriately
with him, and that overall she was not
providing effective legal representation to
her client. The circuit court noted that
Attorney Clemment had not provided all of
the police reports to D.H., she had not
reviewed all of the physical evidence in the
case, she had not hired an investigator to
interview any witnesses, she had not hired
any experts, and she had not received all of
the discovery in the case. The circuit
court said, "I find you grossly incompetent
and I am removing you from this case."
¶16 Following her removal from the case,
D.H.'s sister contacted Attorney Clemment
and requested a full refund of the $5,000
fee so she could hire a new attorney for her
brother. Attorney Clemment agreed to provide
a full refund but said due to economic
hardship she was unable to repay the money
immediately.
¶17 Attorney Clemment did not provide
D.H. post-termination notices as required by
supreme court rules, nor did she refund the
$5,000 fee or make arrangements to do so.
¶18 The OLR's complaint alleged the
following counts of misconduct:
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COUNT ONE
By failing to provide competent
representation to D.H., and, in addition, by
failing to associate more experienced counsel
on the case, Attorney Clemment violated SCR
20:1.1.
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COUNT TWO
By failing to consult sufficiently with
D.H.
concerning the means by which the objectives
of the representation were to be pursued,
Attorney Clemment violated SCR 20:1.2(a) and
SCR 20:1.4(a)(2).
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COUNT THREE
By failing to act diligently on D.H.'s
behalf,
Attorney Clemment violated SCR 20:1.3.
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COUNT FOUR
By failing to withdraw from the
representation
when continued representation of D.H. would
result in a violation of the Rules of
Professional Conduct, Attorney Clemment
violated SCR 20:1.16(a)(1).
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COUNT FIVE
By failing to provide to D.H. post-
termination
notices and an agreed upon refund following
termination of the representation, Attorney
Clemment violated SCR 20:1.5(g)(2).
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COUNT SIX
After agreeing to a full refund, by
failing to
refund the full $5,000 in advanced fees
received from B.H. following the termination
of her representation, Attorney Clemment
violated SCR 20:1.16(d).
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¶19 Attorney Clemment did not file an
answer to the OLR's complaint. The referee
was appointed on January 24, 2018. At a
continued scheduling conference held on
March 9, 2018, the OLR made an oral motion
for default. Attorney Clemment did not
oppose the motion, and the referee granted
it and recommended that Attorney Clemment be
declared in default.
¶20 The referee issued his report and
recommendation on March 23, 2018. The
referee found that the OLR had met its
burden of proof with respect to all of the
counts of misconduct alleged in the OLR's
complaint. The referee concluded that a
public reprimand, which was the level of
discipline sought by the OLR, was an
appropriate sanction for Attorney Clemment's
misconduct.
¶21 The referee said that the purpose of
professional discipline in Wisconsin, as
stated in the preamble to SCR 21, is to
protect the public from misconduct by
persons practicing law in Wisconsin. The
referee noted that in In re Disciplinary
Proceedings Against Kelsay, 155 Wis. 2d
480,
481, 455 N.W.2d 871 (1990), this court said
that the purposes of professional discipline
are: (1) to protect the public from further
misconduct by the offending attorney; (2) to
deter other attorneys from engaging in
similar misconduct; and (3) to foster the
attorney's rehabilitation. The referee also
noted that Attorney Clemment has already
been the subject of one public reprimand.
The referee said while the previous public
reprimand makes a second public reprimand
"somewhat lenient," the referee expressed
hope that Attorney Clemment will learn from
this proceeding and be more committed in the
future to her obligations, both to the Rules
of Professional Conduct and to her clients.
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¶22 The OLR requested that Attorney
Clemment be ordered to pay restitution to
B.H. in the amount of $5,000. The referee
noted that Attorney Clemment did spend some
time on D.H.'s case and she might have been
able to justify retaining part of those
funds if her agreement had been on an hourly
basis. The referee noted, however, that
B.H. paid Attorney Clemment $5,000 as a flat
fee, and the definition of a flat fee states
that it may not be billed against an hourly
rate. For that reason, the referee deemed
it appropriate, given that Attorney Clemment
did not complete the service contracted for,
that she be required to return the entire
amount to B.H. Finally, the referee
recommended that Attorney Clemment be
assessed the full costs of this disciplinary
proceeding.
¶23 Attorney Clemment has not filed an
appeal from the referee's report. Although
Attorney Clemment was given an opportunity
to file an answer and present a defense to
the OLR's complaint, she failed to do so.
Accordingly, we declare her to be in
default.
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¶24 A referee's findings of fact are
affirmed unless they are clearly erroneous.
Conclusions of law are reviewed de novo.
See
In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747. This court may impose
whatever sanction it sees fit, regardless of
the referee's recommendation. See In
re
Disciplinary Proceedings Against Widule,
2003 WI 43, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶25 There is no showing that any of the
referee's findings of fact are clearly
erroneous. Accordingly, we adopt them. We
also agree with the referee's conclusions of
law that Attorney Clemment violated the
supreme court rules set forth above.
¶26 With respect to the appropriate
level of discipline, upon careful review of
this matter, we agree with the referee's
recommendation that Attorney Clemment be
publicly reprimanded. As the referee noted,
generally, discipline is progressive in
nature. See, e.g., In re Disciplinary
Proceedings Against Nussberger, 2006 WI
111,
296 Wis. 2d 47, 719 N.W.2d 501. For that
reason we share the referee's concern as to
whether a second public reprimand is
sufficient discipline for Attorney
Clemment's most recent transgressions,
particularly since both cases involved
failing to provide competent representation.
However, at times this court has imposed a
public reprimand despite prior reprimands.
See, e.g., In re Disciplinary
Proceedings
Against Dade, 2017 WI 51, 375 Wis. 2d 140,
895 N.W.2d 37. We note that Attorney
Clemment's first consensual reprimand was
imposed seven years ago, and she has no
other disciplinary history. On balance, we
conclude that a second public reprimand is
an appropriate sanction.
¶27 We also agree with the referee that
Attorney Clemment should be required to make
restitution to B.H. in the amount of $5,000
and that she should be assessed the full
costs of this proceeding.
¶28 IT IS ORDERED that Sarah Clemment is
publicly reprimanded.
¶29 IT IS FURTHER ORDERED that within 60
days of the date of this order Sarah
Clemment shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $802.19.
¶30 IT IS FURTHER ORDERED that within 60
days of the date of this order Sarah
Clemment shall pay restitution to B.H. in
the amount of $5,000.
¶31 IT IS FURTHER ORDERED that the
restitution specified above is to be
completed prior to paying costs to the
Office of Lawyer Regulation.
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