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ATTORNEY disciplinary proceeding.
Attorney publicly reprimanded.
¶1 PER CURIAM. We review Referee Kim
M. Peterson's recommendation that the court
declare Attorney Diann P. Burton in default
and publicly reprimand her for professional
misconduct in connection with her practice
of law while her law license was suspended,
and her improper use of a firm name for her
solo practice. The referee also recommended
that Attorney Burton pay the full costs of
this proceeding, which total $533 as of
January 15, 2019.
¶2 Because no appeal has been filed, we
review the referee's report pursuant to
Supreme Court Rule (SCR) 22.17(2). After
conducting our independent review of the
matter, we agree with the referee that,
based on Attorney Burton's failure to answer
the complaint filed by the Office of Lawyer
Regulation (OLR), the OLR is entitled to a
default judgment. We also agree with the
referee that Attorney Burton's professional
misconduct warrants a public reprimand.
Finally, we agree with the referee that
Attorney Burton should be ordered to pay the
full costs of the proceeding.
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¶3 Attorney Burton was admitted to
practice law in Wisconsin in 1997. Her law
license is currently subject to
administrative and temporary suspensions.
On October 31, 2016, Attorney Burton's law
license was administratively suspended due
to her failure to pay mandatory bar dues and
her failure to file a trust account
certification. On May 22, 2018, her law
license was administratively suspended due
to her failure to comply with continuing
legal education requirements. On July 10,
2018, her law license was temporarily
suspended due to her failure to cooperate in
an OLR investigation unrelated to the
misconduct at issue in this case.
¶4 On July 26, 2018, the OLR filed the
current complaint against Attorney Burton.
The complaint alleges four counts of
professional wrongdoing. The following
facts are taken from the OLR's complaint.
¶5 In August 2014, M.B. and Y.B. hired
Attorney Burton to file a petition for a
Chapter 7 bankruptcy and paid her a $1,000
flat fee for her representation. Attorney
Burton continued to provide legal advice to
M.B. and Y.B. after her law license was
administratively suspended in October 2016,
though she never filed a bankruptcy petition
on their behalf.
¶6 In addition, at the time of her
administrative license suspension in October
2016, Attorney Burton had at least eight
open bankruptcy cases pending in the United
States Bankruptcy Court for the Eastern
District of Wisconsin. Attorney Burton did
not notify her clients or the bankruptcy
court of the suspension of her license and
continued as counsel of record in the
pending cases while her license was
suspended. Legal work that Burton performed
while her law license was suspended
included:
• filing a Chapter 7 bankruptcy
petition in February 2017 on behalf of a
client, and representing that client through
the bankruptcy discharge granted in May of
2017;
• filing amended Chapter 13
plans;
• filing responses to and stipulations
resolving trustees' motions to dismiss;
and
• filing a petition for voluntary
amortization of debts in February 2017 on
behalf of another client in a Wisconsin
circuit court.
¶7 Finally, while operating as a solo
practitioner, Attorney Burton used a law
firm name and letterhead that listed several
partners, one of whom had a suspended law
license.
¶8 The OLR's complaint alleged the
following four counts of misconduct arising
out of the matters described above:
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• By practicing law while her license
was suspended, Attorney Burton violated SCR
10.03(6) and SCR 22.26(2), enforceable via SCR
20:8.4(f) (Count 1).
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• By failing to provide proper written
notice of the suspension of her law license to
clients and to courts before which she had
pending matters, Attorney Burton violated SCR
22.26(l), enforceable via SCR 20:8.4(f) (Count
2).
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• By using a law firm name that listed
several partners despite operating as a solo
practitioner, Attorney Burton violated SCR
20:7.5(d) (Count 3).
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• By using the name of a suspended
attorney in her firm name and letterhead,
Attorney Burton violated SCR 22.27(l),
enforceable via SCR 20:8.4(f) (Count
4).
¶9 According to the OLR's motion for
default, to which Attorney Burton did not
respond, the OLR made multiple attempts to
serve Attorney Burton with the complaint and
an order to answer. Specifically, in August
and September 2018, a process server
retained by the OLR tried to personally
serve Attorney Burton with the complaint and
order to answer at the home address that
Attorney Burton had provided to the OLR
during its investigation, as well as her
office address on file with the State Bar.
These attempts were unsuccessful. In
October 2018, the OLR mailed the complaint
and order to answer to Attorney Burton's
home address and her office address on file
with the State Bar, via certified mail.
See SCR 22.13(1).
¶10 Attorney Burton failed to file an
answer. In November 2018, the OLR filed a
default motion.
¶11 In her ensuing report, the referee
recommended that the court find Attorney
Burton in default. The referee accepted the
allegations of the complaint as the findings
of fact in the case and concluded that those
facts established that Attorney Burton had
committed professional misconduct as set
forth in the four counts of the complaint.
As requested by the OLR, the referee
recommended that Attorney Burton be publicly
reprimanded for her misconduct and that she
be ordered to pay the costs of the
proceeding.
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¶12 Because Attorney Burton has not
filed an appeal, this matter is submitted to
the court for its review pursuant to SCR
22.17(2). We review a referee's findings of
fact subject to the clearly erroneous
standard. See In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We
review the referee's conclusions of law de
novo. Id. We determine the appropriate
level of discipline independent 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.
¶13 We agree with the referee that
Attorney Burton should be declared in
default. Attorney Burton was given the
opportunity to file an answer and present a
defense to the OLR's complaint. She failed
to do so, and thus may appropriately be
declared in default. We also accept the
referee's findings of fact based on the
allegations of the complaint, and agree with
the referee that those findings support a
determination of misconduct on the four
counts alleged in the OLR's complaint.
¶14 We also agree with the referee that
a public reprimand is an appropriate
sanction for Attorney Burton's misconduct.
Although no two disciplinary proceedings are
identical, a public reprimand is generally
consistent with our precedent. See In
re
Disciplinary Proceedings Against
Willihnganz, 2017 WI 4, 373 Wis. 2d 44,
889
N.W.2d 637 (publicly reprimanding a
respondent-lawyer with a disciplinary
history for, among other things, practicing
law after his law license was
administratively suspended); see also
In re
Disciplinary Proceedings Against Weigel,
2012 WI 71, 342 Wis. 2d 129, 817 N.W.2d 835
(publicly reprimanding the respondent-lawyer
for, among other things, continuing to use
another attorney's name in a firm name after
that attorney's employment at the firm had
ended). We also believe that a public
reprimand will be sufficient to deter
Attorney Burton and other attorneys from
similar misconduct.
¶15 As to the issue of costs, it is our
general practice to impose full costs on
attorneys who are found to have committed
misconduct. See SCR 22.24(1m). There
is no
reason to depart from that practice here.
We therefore impose full costs.
¶16 Finally, we note that no restitution
was sought and none is ordered in this
proceeding.
¶17 IT IS ORDERED that Diann P. Burton
is publicly reprimanded for her professional
misconduct.
¶18 IT IS FURTHER ORDERED that within 60
days of the date of this order, Diann P.
Burton shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶19 IT IS FURTHER ORDERED that the
director of the Office of Lawyer Regulation
shall advise the court if there has not been
full compliance with all conditions of this
decision.
¶20 IT IS FURTHER ORDERED that the
license of Diann P. Burton to practice law
in Wisconsin shall remain temporarily
suspended pursuant to this court's July 10,
2018 order.
¶21 IT IS FURTHER ORDERED that the
administrative suspension of Diann P.
Burton's license to practice law in
Wisconsin, due to her failure to pay
mandatory bar dues, failure to file a trust
account certification, 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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