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ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. We review the report
and recommendation of Referee James W. Mohr,
Jr., concluding that Attorney Ryan P.
Thompson committed 16 counts of professional
misconduct and recommending the court
suspend his law license for 15 months, order
him to pay restitution to one client, A.K.,
and impose the costs of this proceeding on
him.
¶2 Upon careful review of this matter,
we uphold the referee's findings of fact and
conclusions of law and agree that a 15-month
suspension is an appropriate sanction for
Attorney Thompson's misconduct. We further
agree that Attorney Thompson should pay
restitution to A.K. in the amount of $1,000.
We also find it appropriate to impose the
full costs of this proceeding on Attorney
Thompson, which are $7,370.73 as of August
24, 2018.
¶3 Attorney Thompson was admitted to
practice law in Wisconsin in 2006. He has
not previously been professionally
disciplined but his law license was
suspended on May 6, 2016, for willful
failure to cooperate with an Office of
Lawyer Regulation (OLR) investigation into
the misconduct giving rise to this matter.
It remains suspended.
¶4 On December 20, 2017, the OLR filed
a disciplinary complaint alleging 16 counts
of misconduct. Attorney Thompson filed an
answer in which he admitted many of the
factual allegations. Referee Mohr conducted
a hearing on July 10, 2018. Attorney
Thompson appeared, but elected not to attend
the hearing. Before the hearing commenced,
however, Attorney Thompson and the OLR
advised the referee that they would
stipulate to the discipline recommended in
the OLR complaint, except for requested
restitution for C.W., which Attorney
Thompson had paid. The parties stipulated
that the restitution claim on behalf of A.K.
could abide by the proof in the record. The
parties additionally contemplated that
restitution could be made as a condition of
reinstatement. The OLR called two
witnesses. The parties waived the
opportunity for post-hearing briefing and
the referee issued his report on August 6,
2018.
¶5 No appeal has been filed so we
consider this matter under SCR 22.17(2).
The facts set forth in this decision are
based on the referee's factual findings
which have not been shown to be clearly
erroneous in any respect. The findings
derive, in turn, from the OLR's complaint,
Attorney Thompson's answer, the facts to
which the parties stipulated before the
evidentiary hearing, and evidence from the
hearing itself.
Matter of A.K. (Counts 1 & 2)
¶6 In 2014, A.K. retained Attorney
Thompson and paid him a $1,000 retainer.
Shortly thereafter, she elected not to
pursue her legal claim. Since January 2015,
A.K. has repeatedly asked Attorney Thompson
to refund the unearned portion of her
advanced fee. Attorney Thompson failed to
provide A.K. with an invoice, a written
notice of intent to remove her funds from
trust, an accounting, to return any unearned
portion of her advanced fees, or to provide
an explanation as to why he did not owe her
a refund.
¶7 In September 2015, A.K. filed a
grievance against Attorney Thompson with the
OLR. Attorney Thompson failed to respond
and, ultimately, on May 6, 2016, this court
issued an order suspending Attorney
Thompson's license to practice law due to
his willful failure to cooperate with the
OLR's investigation.
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¶8 The complaint alleged and the referee
concluded that, based on Attorney Thompson's
own admission, by failing to refund the
unearned portion of A.K.'s fees or, in the
alternative, to timely explain to A.K. why
she was not due a refund, Attorney Thompson
violated SCR 20:1.16(d) (Count 1).
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¶9 The complaint alleged and the
referee concluded that, by failing to file a
written response to OLR's November 17, 2015
letter, Attorney Thompson willfully violated
SCRs 22.03(2) and (6), enforced via SCR
20:8.4(h) (Count 2).
Matter of C.W. (Counts 3-8)
¶10 In November 2014, C.W. hired
Attorney Thompson to represent her in an
employment matter. She signed a legal
services agreement and paid Attorney
Thompson a $2,500 advance fee. Attorney
Thompson told C.W. he would file a claim
alleging a violation of the Wisconsin Family
Medical Leave Act (FMLA) and a disability
discrimination claim on her behalf.
¶11 On December 12, 2014, Attorney
Thompson duly filed C.W.'s state FMLA
complaint with the Wisconsin Department of
Workforce and Development. On February 18,
2015, the complaint was denied. Attorney
Thompson did not appeal and, in March 2015,
the case was closed.
¶12 After her state FMLA claim was
denied, Attorney Thompson told C.W. that he
would file a federal disability
discrimination and federal FMLA claim on her
behalf. He failed to file any other claims
on C.W.'s behalf within the statutory period
allowed to pursue those claims and he did
not inform C.W. he would not file any
additional claims on her behalf.
¶13 Subsequently, C.W. made numerous
telephone calls to Attorney Thompson and
sent him emails and text messages requesting
information regarding the status of her
case. Attorney Thompson failed to respond.
¶14 On May 6, 2016, this court suspended
Attorney Thompson's law license based on his
failure to cooperate with the A.K.
investigation. Attorney Thompson did not
advise C.W. of his suspension.
¶15 On July 22, 2016, C.W. terminated
Attorney Thompson's representation of her
and requested a copy of her file, an
accounting, and a refund of unearned fees.
Attorney Thompson failed to respond.
¶16 C.W. hired another attorney who
contacted Attorney Thompson on September 7,
2016, requesting a copy of C.W.'s file and a
refund of her advanced fee. Attorney
Thompson failed to respond. C.W. eventually
filed a grievance with the OLR. Attorney
Thompson failed to respond to the OLR
inquiries as well.
¶17 At some point thereafter, Attorney
Thompson apparently provided C.W. with a
refund. The parties agree that no
restitution is warranted in this matter.
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¶18 The complaint alleged and the record
supports the conclusion that, after dismissal
of C.W.'s Wisconsin FMLA claim, by failing to
file any other claims on C.W.'s behalf,
Attorney Thompson violated SCR 20:1.3 (Count
3).
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¶19 The complaint alleged and the referee
concluded that by failing to communicate with
C.W. about the status of her claims, and
failing to respond to C.W.'s reasonable
requests for information, Attorney Thompson
violated SCR 20:1.4(a)(3) and (4) (Count 4).
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¶20 The complaint alleged and the referee
concluded that by failing to provide C.W. with
a written accounting following her request for
one, Attorney Thompson violated former SCR
20:l.15(d)(2) and current SCR 20:l.15(e)(2)
(Count 5).
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¶21 The complaint alleged and the referee
concluded that by failing to refund the
unearned portion of C.W.'s fee or,
alternatively, to timely explain why she was
not due a refund; by failing to provide C.W.
or her counsel with the contents of her file;
and by failing to notify C.W. that he was
closing his private practice, Attorney
Thompson in each instance violated SCR
20:l.16(d) (Count 6).
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¶22 The complaint alleged and the referee
concluded that by failing to notify C.W. of
the May 6, 2016 suspension of his license to
practice law and that she should seek legal
advice from another attorney, Attorney
Thompson violated SCR 22.26(l)(a) and (b),
enforced via SCR 20:8.4(f) (Count 7).
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¶23 The complaint alleged and the
referee concluded that by failing to file a
written response to the OLR's November 23,
2016 letter, Attorney Thompson willfully
violated SCR 22.03(2) and (6), enforced via
SCR 20:8.4(h) (Count 8).
Matter of L.R. (Counts 9-11)
¶24 In June 2015 L.R. hired Attorney
Thompson to defend him in a civil matter.
L.R. signed a retainer agreement and paid
Attorney Thompson a $2,500 advance fee. On
May 6, 2016, this court suspended Attorney
Thompson's law license so Attorney Thompson
was unable to proceed with L.R.'s matter.
¶25 Between June 3, 2016 and October 31,
2016, L.R. spoke with and wrote Attorney
Thompson several times requesting an
accounting and refund of the unearned
portion of his $2,500 advance fee. Attorney
Thompson failed to provide L.R. with an
invoice, an accounting, or refund of any
unearned fees.
¶26 On November 15, 2016, L.R. filed a
grievance with the OLR seeking a refund of
at least $1,750. In an email dated December
14, 2016, Attorney Thompson acknowledged to
the OLR that he owed L.R. both an accounting
and a refund. In an email to L.R. dated
February 23, 2017, Attorney Thompson stated
he owed L.R. a refund of $1,000 but failed
to provide L.R. with an invoice or a refund.
¶27 On May 17, 2017, L.R. filed a
request for arbitration of his fee dispute
with the State Bar of Wisconsin. On July
21, 2017, pursuant to a mediation agreement,
L.R. received a $1,000 refund from Attorney
Thompson. Attorney Thompson never provided
L.R. with a written invoice, a billing
statement, or an accounting.
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¶28 The complaint alleged and the referee
concluded that, by failing to provide L.R.
with a written accounting upon his request,
Attorney Thompson violated former SCR
20:l.15(d)(2) and current SCR 20:l.15(e)(2)
(Count 9).
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¶29 The complaint alleged and the referee
concluded that, by failing, upon termination
of the representation, to properly refund the
unearned portion of L.R.'s fees or, in the
alternative, to timely explain why he was not
due a refund, Attorney Thompson violated SCR
20:l.16(d) (Count 10).
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¶30 The complaint alleged and the
referee concluded that, by willfully failing
to file a written response to the OLR's
December 23, 2016 letter, Attorney Thompson
violated SCR 22.03(2) and (6), enforced via
SCR 20:8.4(h) (Count 11).
Practicing after Suspension (Counts
12-16)
¶31 When Attorney Thompson was suspended
by this court on May 6, 2016, he was
employed as an in-house attorney for
Heartland Business Systems LLC (Heartland).
He continued to work for them after the
suspension, holding himself out - both to
Heartland and to others - as an attorney
licensed to practice law in Wisconsin.
¶32 Attorney Thompson later admitted to
the OLR that he had been practicing law
between May 2016 and at least November 2016
and retained the title of General Counsel.
Attorney Thompson made numerous
misrepresentations to the OLR when
discussing his suspension, including:
• That he told the President and Vice
President of Heartland's parent company that
his license had been suspended;
• That when he informed Heartland of
his suspension, they restricted his signing
authority and caused Heartland to begin
looking for another attorney;
• That the Vice President took over
the handling of all contract matters until
another attorney was hired;
• That the Vice President began to
supervise a legal assistant for all law-
related work;
• That Attorney Thompson did not
supervise the new attorney's legal
work;
• That after Attorney Thompson
informed Heartland of his suspension, he
stopped practicing law on behalf of
Heartland; and
• That Attorney Thompson changed his
title from General Counsel to Chief
Operating Officer, Compliance Leader and
Privacy Officer.
¶33 The referee found that, in fact,
Heartland had no knowledge of Attorney
Thompson's suspension until April 27, 2017
and during that time, he was still providing
what the company would consider legal
services and legal advice. The referee
further found that had Heartland known of
his May 2016 suspension, Attorney Thompson
would have been terminated.
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¶34 The complaint alleged and the referee
concluded that by practicing law in Wisconsin
at a time when his license to practice law was
suspended, Attorney Thompson violated SCRs
22.26(2) and 23.02(1), enforced via SCR
20:8.4(f) (Count 12).
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¶35 The complaint alleged and the referee
concluded that, by using the title General
Counsel and otherwise holding himself out as a
licensed attorney while employed in Wisconsin
at a time when his license to practice law in
Wisconsin was suspended, Attorney Thompson
violated SCR 23.02(3), enforced via SCR
20:8.4(f) (Count 13).
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¶36 The complaint alleged and the referee
concluded that, by engaging in a dishonest and
deceitful course of conduct related to the
status of his license to practice law and his
ability to act as legal counsel for Heartland,
which included material misrepresentations and
omissions in his interactions with Heartland,
Attorney Thompson violated SCR 20:8.4(c)
(Count 14).
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¶37 The complaint alleged and the referee
concluded that, by failing to file a written
response to the OLR's March 23, 2017 letter
until September 18, 2017, Attorney Thompson
willfully violated SCR 22.03(2) and (6),
enforced via SCR 20:8.4(h) (Count 15).
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¶38 Finally, the complaint alleged and the
referee concluded that, by making
misrepresentations to the OLR during the
course of its investigations, Attorney
Thompson violated SCR 22.03(6), enforced via
SCR 20:8.4(h) (Count 16).
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¶39 With respect to the appropriate
discipline, the parties stipulated before
the evidentiary hearing that a one-year
suspension of Attorney Thompson's license to
practice law was appropriate, together with
restitution to A.K. as a condition of any
future reinstatement.
¶40 The referee was troubled by Attorney
Thompson's misconduct, particularly his
blatant disregard of a supreme court order
and his misrepresentations to the OLR. In
reaching an independent recommendation
regarding discipline, the referee deemed
instructive In re Disciplinary Proceedings
Against Rostollan, 2018 WI 38, 381 Wis. 2d
5, 911 N.W.2d 112. Attorney Rostollan, who
had no prior disciplinary history, was
suspended for failure to cooperate in an OLR
investigation. He was then suspended for
two years for failing to properly document
advance fees; making misrepresentations to a
federal bankruptcy court; failure to hold
fees in trust; failure to cooperate with an
OLR investigation; failure to keep a client
properly informed; and practicing after
suspension. The referee acknowledged that
Attorney Rostollan's conduct was more
egregious than that of Attorney Thompson,
but noted, correctly, that many of the same
elements are present.
¶41 The referee was also informed by
In
re Disciplinary Proceedings Against
Ruppelt,
2017 WI 80, 377 Wis. 2d 441, 898 N.W.2d 473
where the attorney stipulated to 16 counts
of misconduct and a one-year suspension for
failure to hold client money in trust;
dishonest billing practices; dishonesty
toward the OLR in its investigation; failure
to properly communicate with a client; and
false statements to a tribunal. There, the
referee opted to recommend a 15-month
suspension, which this court imposed. The
referee observed that Attorney Thompson's
case also involved "troublesome conduct
toward at least three (3) clients" and
determined that here, a 15-month suspension
is needed.
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¶42 This court will adopt the referee's
findings of fact 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. The court
may impose whatever sanction it sees fit,
regardless of the referee's recommendation.
See In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d
45, 660 N.W.2d 686.
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¶43 We adopt the referee's findings of
fact and conclusions of law that Attorney
Thompson violated the supreme court rules as
set forth above. We further agree with the
referee that a 15-month suspension of
Attorney Thompson's license to practice law
in Wisconsin is a more appropriate level of
discipline than the 12-month suspension
proposed by the parties. We agree with the
referee that Attorney Thompson should be
required to pay restitution to A.K. We
impose this obligation on Attorney Thompson
now. It is not our practice to defer
imposition of a restitution award. Finally,
we deem it appropriate, as is our usual
custom, to impose the full costs of this
disciplinary proceeding on Attorney
Thompson.
¶44 IT IS ORDERED that the license of
Ryan P. Thompson to practice law in
Wisconsin is suspended for a period of 15
months, effective the date of this order.
¶45 IT IS FURTHER ORDERED that within 60
days of the date of this order, Ryan P.
Thompson shall pay restitution to A.K. in
the amount of $1,000.
¶46 IT IS FURTHER ORDERED that within 60
days of the date of this order Ryan P.
Thompson shall pay to the Office of Lawyer
Regulation the costs of this proceeding,
which are $7,370.73 as of August 24, 2018.
¶47 IT IS FURTHER ORDERED that
restitution shall be paid before the payment
of costs to the Office of Lawyer Regulation.
¶48 IT IS FURTHER ORDERED that, to the
extent that he has not already done so, Ryan
P. Thompson 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.
¶49 IT IS FURTHER ORDERED that the
temporary suspension of Ryan P. Thompson's
license to practice law in Wisconsin, which
was imposed on May 6, 2016, due to his
willful failure to cooperate with the Office
of Lawyer Regulation's investigation is
lifted.
¶50 IT IS FURTHER ORDERED that
compliance with all conditions of this order
is required for reinstatement. See SCR
22.28(3).
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