Office of Lawyer Regulation v. Toran (In Re Toran) ( 2018 )

2018 WI 26SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP112-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against James Toran , Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
James Toran,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST TORAN
OPINION FILED: April 5, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 17, 2018
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there was a brief filed and
an oral argument by Michael L. Chernin and Law Office of Michael
L. Chernin, Milwaukee.
For the complainant-respondent, there was a brief filed and
oral argument by Gregg Herman on behalf of the Office of Lawyer
Regulation, Madison.
2018 WI 26NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP112-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against James Toran, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
APR 5, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
James Toran,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney James Toran appeals a report
filed by Referee John A. Fiorenza concluding that Attorney Toran
committed three counts of professional misconduct and
recommending that Attorney Toran should be ordered to pay
restitution and that his license to practice law in Wisconsin be
suspended for one year. Attorney Toran entered into a
stipulation whereby he admitted to the alleged misconduct and
No. 2016AP112-D
agrees to pay restitution. He argues that a lesser sanction is
warranted.
¶2 We adopt the referee's findings of fact, conclusions
of law, and recommendation regarding restitution, but we
conclude that a 60-day suspension of Attorney Toran's license to
practice law is a sufficient sanction for his misconduct. As is
our usual practice, we also agree that Attorney Toran should be
required to pay the full costs of this proceeding, which are
$2,188.05 as of February 6, 2018.
¶3 Attorney Toran was admitted to practice law in
Wisconsin in 1983. He practices criminal law in Milwaukee.
This is his fifth disciplinary proceeding.
¶4 In 1989, we suspended Attorney Toran's license for six
months because Attorney Toran arranged to receive cocaine as
payment of a portion of legal fees he charged to represent a
criminal client. In re Disciplinary Proceedings Against Toran,
151 Wis. 2d 194, 443 N.W.2d 927 (1989). He was charged and
convicted of possession of cocaine and received two years of
probation. Id.¶5 In 1991, Attorney Toran received a consensual public
reprimand for misconduct committed in two client matters.
Public Reprimand of James E. Toran, No. 1991-13 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
000288.html). In the first matter, a client retained Attorney
Toran to represent him on a speeding and drunk driving charge.
Attorney Toran failed to show up for a court hearing without
formal notice to the court and with only five minutes notice to
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No. 2016AP112-D
his client. The client promptly discharged him and, although
Attorney Toran agreed to return $350 of the $500 retainer to the
client, he failed to do so.
¶6 In the second matter, a woman retained Attorney Toran
following her arrest on a drunk driving charge. She had been
offered a plea deal but Attorney Toran told her that she had a
good case. She paid Attorney Toran a $500 retainer and, on
Attorney Toran's advice, drove 200 miles to take photographs of
the area where she had been driving to use as evidence at trial.
After several delays, Attorney Toran accepted a plea deal for
her without her consent. Believing she was going to trial, she
tried to contact Attorney Toran without success. She terminated
representation and, when she tried to discuss a refund, Attorney
Toran cancelled the meeting and subsequently failed to respond
to her telephone calls or to a certified letter. During the
investigation Attorney Toran agreed to refund her $500 retainer,
but failed to do so.
¶7 Attorney Toran received a consensual private reprimand
in 2007.
¶8 On November 3, 2012, Attorney Toran received another
consensual public reprimand based on misconduct in three client
matters. Public Reprimand of James E. Toran, No. 2012-15
(electronic copy available at https://compendium.wicourts.gov/
app/raw/002521.html). Attorney Toran failed to provide a client
with a written fee agreement, in violation of SCR 20:1.5(b)(1).
With respect to the second client, Attorney Toran again failed
to provide the client with a written fee agreement and, despite
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No. 2016AP112-D
repeated requests, also failed to provide the client with a copy
of discovery in the case, in violation of SCR 20:1.4(a)(4).
Attorney Toran also falsely told the Office of Lawyer
Regulation's (OLR) investigators that he had visited this client
in jail. In the third client matter, Attorney Toran failed to
respond to appellate counsel's requests for the client's file
and failed to promptly deliver the client's file to appellate
counsel, in violation of SCR 20:1.16(d).
¶9 This proceeding commenced on January 15, 2016, when
the OLR filed a complaint alleging that Attorney Toran had
committed misconduct in connection with his representation of
B.S. The OLR sought a 60-day suspension and $500 in
restitution. Attorney Toran filed an answer and a referee was
appointed.
¶10 At the beginning of the September 23, 2016 evidentiary
hearing, the lawyers informed the referee that Attorney Toran
had stipulated to the allegations in the complaint.
Accordingly, the only remaining issue was the appropriate
sanction.
¶11 The complaint alleged, and Attorney Toran stipulated,
that in November 2012 Attorney Toran was retained to represent
B.S. in a criminal matter. B.S.'s mother, D.S., paid Attorney
Toran $1,000 in advanced fees toward the representation. There
was no written fee agreement.
¶12 At some point, D.S. asked Attorney Toran to file a
petition for writ of certiorari on her son's behalf. Attorney
Toran explained to D.S. that he required payment of $1,000
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No. 2016AP112-D
before he would file the writ of certiorari. D.S. made some
additional payments totaling approximately $1,500. Of that
amount, $500 was paid in contemplation of Attorney Toran filing
the petition for writ of certiorari. However, the additional
$500 was not paid. So, Attorney Toran did not draft or file the
writ of certiorari.
¶13 However, upon termination of representation, Attorney
Toran never refunded D.S. the $500 paid toward the writ of
certiorari. Attorney Toran also failed to deposit any of these
funds into his trust account.
¶14 The complaint alleged that, by failing to enter into a
written fee agreement with regard to his representation of B.S.
when the total cost of the representation exceeded $1,000,
Attorney Toran violated SCR 20:1.5(b)(l)(Count One);1 by failing
to deposit into his trust account the advanced payment of fees
made by B.S.'s mother on his behalf, and absent any evidence
1
SCR 20:1.5(b)(1) provides:
The scope of the representation and the basis or
rate of the fee and expenses for which the client will
be responsible shall be communicated to the client in
writing, before or within a reasonable time after
commencing the representation, except when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
foreseeable that the total cost of representation to
the client, including attorney's fees, will be $1000
or less, the communication may be oral or in writing.
Any changes in the basis or rate of the fee or
expenses shall also be communicated in writing to the
client.
5
No. 2016AP112-D
that Attorney Toran complied with the alternative protection for
fees available under SCR 20:1.15(b)(4m), Attorney Toran violated
(former) SCR 20:1.15(b)(4) (Count Two);2 and by failing to refund
the $500 advanced payment of fees made in contemplation of
filing a writ of certiorari, when no such work was completed,
Attorney Toran violated SCR 20:1.16(d)(Count Three).3
¶15 At the time of the evidentiary hearing it was clear
that D.S. felt she was entitled to more than $500 in
2
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.
Former SCR 20:1.15(b)(4) provided:
Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
Attorney Toran does not argue that he complied with the advanced
fee alternative formerly available under SCR 20:1.15(4m).
3
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
6
No. 2016AP112-D
restitution. The parties agreed that D.S. should be permitted
to testify and she did so. Both lawyers made brief
presentations to the referee regarding sanctions. Attorney
Toran testified, saying, inter alia, that he thought he had
repaid D.S. but could not prove it.
¶16 The referee filed a brief report and recommendation on
January 30, 2017 accepting the parties' stipulation,
recommending the court order Attorney Toran to pay $500 in
restitution to D.S., and, in light of Attorney Toran's
disciplinary history, recommending a one-year license suspension
and costs.
¶17 Attorney Toran appeals. He asserts that a public
reprimand is sufficient. The parties filed briefs, and this
court conducted oral argument on January 17, 2018.
¶18 Neither party challenges the referee's findings of
fact or conclusions of law. We agree with the findings of fact
and conclusions of law and we adopt them. See In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747. The issue for this court is the
appropriate level of discipline for Attorney Toran's admitted
misconduct: failing to provide a fee agreement, failing to hold
advanced fees in trust, and failing to return advanced fees to
D.S. when it became clear that he would not be drafting a writ
of certiorari petition.
¶19 Attorney Toran maintains that a public reprimand is
sufficient. He seeks to provide some context for his errors.
He concedes, as he must, that this court adheres to the practice
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No. 2016AP112-D
of progressive discipline. See In re Disciplinary Proceedings
Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501;
In re Disciplinary Proceedings Against Lister, 2010 WI 108, 329
Wis. 2d 289, 787 N.W.2d 820. He suggests however that his early
discipline is so remote in time and preceded his recovery and
should not be held against him in this matter. He notes that
the "[r]eferee's recommendation is terse in word and analysis"
and argues that progressive discipline does not "in any manner
suggest the harsh sanction recommended." However, he cites no
legal authority in support of his request for another public
reprimand.
¶20 The OLR agrees that a one-year suspension is too harsh
but maintains that a suspension of some length is merited. It
reiterates its request for a 60-day suspension. The OLR
acknowledges that Attorney Toran was cooperative during the
investigation and prosecution of this matter. The OLR
acknowledges that, standing alone, in the absence of any prior
disciplinary history, the nature and severity of Attorney
Toran's misconduct in this matter might warrant a reprimand, and
perhaps if restitution had been timely made, even a private
reprimand.
¶21 However, restitution was not timely made and this is
Attorney Toran's fifth disciplinary proceeding. Even if we were
to discount Attorney Toran's early disciplinary history, the
facts giving rise to his 2012 public reprimand indicate this
misconduct was not an isolated or unique occurrence. As such,
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No. 2016AP112-D
progressive discipline tips the balance in favor of license
suspension. The question is how long?
¶22 We agree that a one-year suspension is too long.
Indeed, any license suspension of six months or more would
require Attorney Toran to formally petition for reinstatement
pursuant to SCR 22.28(3), thereby delaying reinstatement.
¶23 A 60-day license suspension is the shortest license
suspension we impose.4 While no two disciplinary cases present
precisely the same circumstances, a 60-day suspension appears
most consistent with our prior practice in similar cases. See
In re Disciplinary Proceedings Against Osicka, 2014 WI 33, 353
Wis. 2d 656, 847 N.W.2d 343 (imposing 60-day suspension for
violations of SCRs 20:1.15(b), 20:1.5(a), 20:1.16(d), and
22.03(2) and (6) on attorney with three prior public reprimands,
the most recent for similar misconduct); In re Disciplinary
Proceedings Against Harris, 2010 WI 9, 322 Wis. 2d 364, 778
N.W.2d 154 (imposing a 60-day suspension for violations of SCRs
20:1.3 and 20:1.4 on attorney with a prior private reprimand and
a prior public reprimand for similar misconduct). We thus
4
The court may order a shorter suspension when imposing
discipline reciprocal to that imposed on an attorney by another
jurisdiction. SCR 22.22. We did impose 30-day license
suspensions in two related disciplinary cases, In re
Disciplinary Proceedings Against Sommers, 2012 WI 33, 339
Wis. 2d 580, 811 N.W.2d 387 and In re Disciplinary Proceedings
Against Humphrey, 2012 WI 32, 339 Wis. 2d 531, 811 N.W.2d 363.
That outcome, imposed on lawyers with no prior discipline, was
explicitly characterized "an unusual case that calls for an
unusual result."
9
No. 2016AP112-D
conclude that a 60-day suspension of Attorney Toran's license to
practice law in Wisconsin is sufficient to impress upon him the
seriousness of his misconduct, to protect other clients, and to
deter other attorneys from engaging in similar misconduct.
¶24 We turn to the question of restitution. The parties
stipulated to $500 in restitution to D.S., and the referee
agreed.
¶25 At the evidentiary hearing, the client's mother
testified that she retained Attorney Toran in the fall of 2012
to represent her son in a criminal proceeding. She gave
Attorney Toran $1,000 in cash or a cashier's check at that time.
The testimony from the evidentiary hearing disclosed that she
sought Attorney Toran's assistance on a number of interrelated
matters regarding her son, including a revocation proceeding.
She testified that she later gave Attorney Toran another $500-
$700, then another $800 for a total of $2,500 on "the first
case." This testimony differed from the OLR's understanding, as
set forth in the complaint: that Attorney Toran had received a
total of $1,500. D.S. offered no receipts or other evidence of
having paid Attorney Toran more than $1,500. It was clear that
D.S. wanted Attorney Toran to file a writ of certiorari petition
on her son's behalf, but paid only $500 of the requisite $1,000
fee for that work. The referee considered the evidence and
recommended, consistent with the parties' stipulation, that we
direct Attorney Toran to pay $500 in restitution to D.S. We
accept that recommendation and we also agree that Attorney Toran
should pay the full costs of this proceeding.
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No. 2016AP112-D
¶26 IT IS ORDERED that the license of James Toran to
practice law in Wisconsin is suspended for a period of 60 days
effective May 17, 2018.
¶27 IT IS FURTHER ORDERED that James Toran shall pay $500
in restitution to D.S., the mother of his former client, B.S.
¶28 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶29 IT IS FURTHER ORDERED that James Toran comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶30 IT IS FURTHER ORDERED that within 60 days of the date
of this order, James Toran pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $2,188.05 as
of February 6, 2018. If the costs are not paid within the time
specified, and absent a showing to this court of his inability
to pay the costs within that time, the license of James Toran to
practice law in Wisconsin shall remain suspended until further
order of the court.
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No. 2016AP112-D
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