¶25 Attorney Constant filed an answer and affirmative defenses on May 26, 2017. The referee was appointed on June 5, 2017. During the course of the proceeding, the OLR voluntarily dismissed Count Nine of its complaint. An evidentiary hearing was held on November 5, 2018. The witnesses at the hearing were Attorney Constant, M.B., M.B.'s boyfriend, and an OLR investigator.

¶26 The referee issued his report and recommendation on February 19, 2019. The referee found that the OLR had proved by clear, satisfactory, and convincing evidence that Attorney Constant committed the remaining eight counts of misconduct alleged in the OLR's complaint. Although the OLR had sought a two-year suspension of Attorney Constant's Wisconsin law license, the referee concluded that a five-month suspension was an appropriate sanction for Attorney Constant's misconduct.

¶27 The referee said that the misconduct at issue here is serious. He noted the violations of trust account rules were multiple and occurred over a number of years. The referee pointed out that Attorney Constant's area of practice was in the field of personal injury law, and he said Attorney Constant's failure to provide written notices to M.B. regarding the receipt of settlement funds and then not providing an accurate settlement statement at the conclusion of the case were major violations of the duties owed to his client.

¶28 The referee also said Attorney Constant's practice of electronic transfers and multiple cash withdrawals that were not allocated to a specific client appear to be part of an effort to convert funds from the client and to conceal Attorney Constant's wrongdoing by intentionally violating supreme court rules. The referee said the deposit of Attorney Constant's own funds into his trust account to avoid an overdraft grossly represented a knowing and intentional rule violation. Further, the referee said Attorney Constant took no action to reconcile the differences between his trust account bank records and his own business records. The referee noted that in M.B.'s case, these failures occurred repeatedly over more than two years. The referee said Attorney Constant's actions and non-actions were consistent with not caring about the problems in his trust account or not wanting to take actions to correct those problems.

¶29 The referee went on to say Attorney Constant has avoided responsibility for his actions throughout the OLR's investigation. The referee said Attorney Constant consistently blamed others without any corroboration. Attorney Constant blamed the Quicken software program he used; he blamed unnamed employees at U.S. Bank who he claimed gave him incorrect instructions on how to operate his trust account; he claimed his own trust account and business bank records should not have been admitted into evidence; and he excused his misconduct by noting that neither M.B. nor the lienholders in her case suffered any loss. The referee said this type of rationalization indicated a lack of insight into the misconduct and showed that Attorney Constant had no remorse for his improper actions. The referee said it was critically important that the seriousness of his wrongdoing be impressed upon Attorney Constant.

¶30 The referee also found a number of mitigating factors. The referee noted that Attorney Constant has practiced law in Wisconsin for over 50 years and has not previously been the subject of any disciplinary action. The referee also said that Attorney Constant has brought credit to the legal profession by his many positive community involvements in the city and county of Kenosha. In addition, for over ten years Attorney Constant provided pro bono legal services through Legal Action of Wisconsin. In the 1980s Attorney Constant was a charter member of Kenoshans Against Sexual Assault, and he also served on the Board of Directors for the Salvation Army for many years.

¶31 The referee said Attorney Constant brought forward a basketball analogy of "no harm/no foul" to support his position that M.B. and all of the lienholders in her case did ultimately receive all of the money that was due them. The referee said this attitude was consistent with Attorney Constant's assertion that he did nothing that constituted a violation of supreme court rules.

¶32 The referee ultimately concluded that a five-month suspension of Attorney Constant's Wisconsin law license was an appropriate sanction for his misconduct. In support of his recommendation, the referee cited In re Disciplinary Proceedings Against McClure, 2015 WI 25, 361 Wis. 2d 339, 860 N.W.2d 474. Attorney McClure stipulated to 11 counts of misconduct involving trust account violations, and various other counts of misconduct. The referee in that case found Attorney McClure to be generally remorseful. Attorney McClure fully cooperated with the OLR, and the OLR did not dispute the fact that Attorney McClure was faced with a multitude of personal problems during the time period at issue.

¶33 In addition to a five-month suspension, the referee in the instant case also recommends that Attorney Constant should be ordered to attend and successfully complete 12 hours of continuing legal education (CLE) courses approved in advance by the OLR; at least six hours of which should be in OLR approved courses relating to proper trust account management. Further, the referee recommends that if Attorney Constant desires to resume the practice of law, he should have his trust account monitored by the OLR for at least two years. The referee also recommends that Attorney Constant be ordered to pay the full costs of the proceeding.

¶34 In his appeal, Attorney Constant argues that the OLR mistakenly allowed his U.S. Bank records into evidence at the evidentiary hearing because the certification by a U.S. Bank officer was supported by an insufficient affidavit. He also asserts that the bank records received into evidence were insufficient to meet the OLR's burden of proof. Finally, he asserts that a five-month suspension of his license to practice law is excessive. He argues that a public reprimand, or at most, a 60- day suspension, would be an appropriate sanction.

¶35 Attorney Constant maintains that he returned M.B.'s entire file to her, whereas M.B. and her boyfriend both testified that she did not receive her complete file. The referee found the testimony of M.B. and her boyfriend to be more credible than Attorney Constant's testimony on this issue. Attorney Constant argued that his testimony should have been believed. He says the record contained a statement that M.B. had a criminal record, and he argues the referee should have made a specific finding of fact on that point.

¶36 As to the appropriate sanction, Attorney Constant agrees that the referee engaged in a detailed thoughtful analysis of the mitigating factors; however, he says even a five-month suspension is too much and a public reprimand or a sixty-day suspension is adequate.

¶37 The OLR responds to Attorney Constant's appeal by arguing that the referee correctly admitted the certified U.S. Bank records into evidence. The OLR notes Wisconsin allows self-authenticating documents to be admitted into evidence based on circumstances, and pursuant to Wis. Stat. § 909.02(12)(a), "extrinsic evidence of authenticity as a condition precedent to admissibility is not required" for certified domestic records of regularly conducted activity. The referee notes that at the evidentiary hearing, the U.S. Bank certified records were accompanied by an affidavit that included the following language:

¶38 The OLR says Wis. Stat. § 909.02(12) does not require the person certifying the record to state the source of their knowledge. The OLR says the U.S. Bank certification met the statutory requirements, and the referee properly admitted the bank documents into the record.

¶39 The OLR says this court should affirm the referee's finding that Attorney Constant did not give M.B. her entire client file. The OLR notes when testimony is conflicting, the referee is the ultimate arbiter of witness credibility. See In re Disciplinary Proceedings Against Pump, 120 Wis. 2d 422, 426-27, 355 N.W.2d 248 (1984).

¶40 In its cross-appeal, the OLR argues that a five-month suspension is inadequate due to the nature and severity of Attorney Constant's misconduct. The OLR advocates for a suspension of a least one year.

¶42 A referee's findings of fact are affirmed unless 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.

¶43 From our review of the record, we find there has been no showing that any of the referee's findings of fact are clearly erroneous. Accordingly, we adopt them. We further agree with the referee's conclusions of law that Attorney Constant violated the supreme court rules set forth above. We specifically find that Attorney Constant's challenge to the admissibility of his U.S. Bank records is meritless, and we find no basis to disturb the referee's credibility finding with respect to whether Attorney Constant returned M.B.'s entire client file.

¶45 Although no two disciplinary proceedings are identical, we agree with the referee that this case is somewhat similar to McClure. However, whereas Attorney McClure fully cooperated with the OLR and entered into a stipulation whereby he admitted virtually all of the facts alleged in the complaint, Attorney Constant provided the OLR with incomplete and inconsistent trust account and client records, and he represented that he had not made cash withdrawals from his trust account when in fact he had done so. In addition, unlike Attorney McClure, who the referee found to be genuinely remorseful and was dealing with a variety of personal problems during the time the misconduct occurred, Attorney Constant has consistently maintained that he did nothing wrong. Imposing a six-month suspension, which will require Attorney Constant to petition for reinstatement, will provide assurance that he can be safely recommended to the profession, the courts, and the public as a person who is fit and capable to practice law in this state.

¶46 We also agree with the referee that in the event Attorney Constant's license is reinstated, he should be required to successfully complete 12 hours of CLE courses approved in advance by the OLR, at least six of which should relate to properly managing a trust account and he should have his trust account monitored by the OLR for at least two years. As is our usual custom, we find it appropriate to assess the full costs of this proceeding against Attorney Constant. Since the OLR states that Attorney Constant made full restitution to M.B., we do not impose a restitution award.

¶47 IT IS ORDERED that the license of Terry L. Constant to practice law in Wisconsin is suspended for a period of six months, effective March 10, 2020.

¶48 IT IS FURTHER ORDERED that, as a condition of the reinstatement of his license to practice law in Wisconsin, Terry L. Constant shall be required to successfully complete 12 hours of continuing legal education courses approved in advance by the Office of Lawyer Regulation, at least six of which hours shall be in courses relating to properly managing a trust account.

¶49 IT IS FURTHER ORDERED that, as a condition of the reinstatement of his license to practice law in Wisconsin, Terry L. Constant shall have his trust account monitored by the Office of Lawyer Regulation for a period of two years.

¶50 IT IS FURTHER ORDERED that Terry L. Constant 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.

¶51 IT IS FURTHER ORDERED that within 60 days of the date of this order, Terry L. Constant shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $13,409.63 as of December 10, 2019.