Office of Lawyer Regulation v. Thomas W. Batterman , 2023 WI 13 ( 2023 )

2023 WI 13SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP1213-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Thomas W. Batterman, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Thomas W. Batterman,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BATTERMAN
OPINION FILED: February 24, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam. ZIEGLER, C.J., filed a concurring opinion in which
REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
2023 WI 13NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP1213-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against
Thomas W. Batterman, Attorney at Law:
FILED
Office of Lawyer Regulation,
FEB 24, 2023
Complainant,
Sheila T. Reiff
v. Clerk of Supreme Court
Thomas W. Batterman,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney Thomas W. Batterman has filed a
petition for the consensual revocation of his license to
practice law in Wisconsin pursuant to Supreme Court Rule (SCR)
22.19.1 In his petition, Attorney Batterman states that he
1 SCR 22.19 provides:
No. 2022AP1213-D
cannot successfully defend against the allegations of misconduct
in connection with a grievance investigated by the Office of
Lawyer Regulation (OLR).
¶2 Attorney Batterman was admitted to practice law in
Wisconsin in 1982. His license is currently active and in good
standing. He has not practiced law since 1985, does not
(1) An attorney who is subject of an investigation for
possible misconduct or the respondent in a proceeding may
file with the supreme court a petition for the revocation
by consent [of] his or her license to practice law.
(2) The petition shall state that the petitioner
cannot successfully defend against the allegations of
misconduct.
(3) If a complaint has not been filed, the petition
shall be filed in the supreme court and shall include the
director’s summary of the misconduct allegations being
investigated. Within 20 days after the date of filing of
the petition, the director shall file in the supreme court
a recommendation on the petition. Upon a showing of good
cause, the supreme court may extend the time for filing a
recommendation.
(4) If a complaint has been filed, the petition shall
be filed in the supreme court and served on the director
and on the referee to whom the proceeding has been
assigned. Within 20 days after the filing of the petition,
the director shall file in the supreme court a response in
support of or in opposition to the petition and serve a
copy on the referee. Upon a showing of good cause, the
supreme court may extend the time for filing a response.
The referee shall file a report and recommendation on the
petition in the supreme court within 30 days after receipt
of the director's response.
(5) The supreme court shall grant the petition and
revoke the petitioner's license to practice law or deny the
petition and remand the matter to the director or to the
referee for further proceedings.
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No. 2022AP1213-D
maintain a law office and has no clients, and has no intention
to practice law in the future. He has no previous disciplinary
history.
¶3 On July 19, 2022, OLR filed a complaint against
Attorney Batterman alleging four counts of misconduct. The
first two counts of misconduct arose out of Attorney Batterman’s
representation of J.G.
¶4 Attorney Batterman is the founder, registered agent,
and principal of Financial Fiduciaries and the president and
majority shareholder of WTC, Inc. (WTC), the sole member of
Financial Fiduciaries. In April 1988, J.G. established and
funded a revocable living trust which provided that if J.G.’s
wife should predecease him, the assets remaining in the trust,
together with any assets received into the trust, shall be
distributed to the following charities: 25% to the Diocese of
the Catholic Church for Superior, Wisconsin, for educational
purposes; 25% to Bruce High School, Bruce, Wisconsin, to fund
scholarships for students pursuing a college education; 25% to
the Alzheimer’s Association for research; and 25% to the
American Cancer Society for research.
¶5 In March 2011, J.G. amended the trust to provide that
the bequest to the American Cancer Society be paid through local
fundraising events such as Relay for Life in a manner and for
such purposes as the organization saw fit. The amendment also
changed the successor trustee from Vigil Asset Management Group,
Inc. to Vigil Trust and Financial Advocacy of Wausau, Wisconsin,
or its successors (Vigil).
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No. 2022AP1213-D
¶6 WTC was the entity that provided investment management
services to Vigil’s trust clients. Vigil was a registered
tradename for Investors Independent Trust Company (IITC).
Attorney Batterman did not have an ownership interest in IITC
and was neither an employee nor an officer of IITC.
¶7 A trust services agreement between WTC and IITC
permitted employees of WTC and Financial Fiduciaries to assist
IITC with ministerial duties in the administration of trusts in
which Vigil is to be named trustee.
¶8 J.G. died on December 27, 2014. At that time, the
trust was required to distribute 25% of the trust assets to each
of the four beneficiaries. Vigil was the trustee.
¶9 In February of 2015, Attorney Batterman discussed the
administration of the trust with his then-fiancé, D.R., who was
the senior manager for the Relay for Life division of the
American Cancer Society. Attorney Batterman and D.R. discussed
an incremental distribution to the American Cancer Society over
a period of up to ten years and discussed splitting the gift
between the Eagle River and Wausau Relay for Life.
¶10 The unambiguous language of the trust stated that 25%
of trust assets shall be distributed to the American Cancer
Society. There was no provision in the trust which provided for
incremental distribution. In a May 20, 2015 email to the
American Cancer Society, Attorney Batterman offered only
incremental distribution of trust assets. Attorney Batterman
told the American Cancer Society that Vigil was his company,
although he had no ownership interest in it. In a June 15, 2015
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No. 2022AP1213-D
letter to the American Cancer Society, Attorney Batterman said
the trust was discretionary, when he knew it was an irrevocable
trust. In the letter, Attorney Batterman said that the donor
wished to remain anonymous, which was also not true.
¶11 The trust provided that after J.G.’s death, 25% of
trust proceeds be distributed to Bruce High School. Instead,
Vigil hired a law firm to create the J.G. Scholarship Trust.
Attorney Batterman was the primary contact person with the law
firm. The scholarship trust was created without notice to Bruce
High School. The scholarship trust named Vigil as the trustee,
and Attorney Batterman was named trust protector. As trust
protector, Batterman should have informed Bruce High School of
its status as beneficiary to the trust. In a July 9, 2015 email
to the high school, Attorney Batterman failed to inform the high
school that the trust was required to distribute 25% of the
trust assets to the school. Attorney Batterman also failed to
inform the school that Vigil was the trustee and Attorney
Batterman was the trust protector.
¶12 In late June or early July of 2015, the Alzheimer’s
Association Major Gifts Division made contact with Attorney
Batterman because the Alzheimer’s Association had received
information of its status as a beneficiary of a trust for which
Vigil was the trustee. Attorney Batterman sent an email to the
Alzheimer’s Association Trust and Estate Specialist on July 6,
2015 saying he was “just going to begin the process of trying to
get in touch with the local Alzheimer’s office.” Prior to that
date, neither Vigil nor Attorney Batterman had notified the
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No. 2022AP1213-D
Alzheimer’s Association of its status as a beneficiary, as was
the trustee’s duty. In the same email, Attorney Batterman
identified the trust as revocable when he knew that the trust
was irrevocable. Attorney Batterman knew the trust required
distribution of 25% of the trust assets to each of the four
named fiduciaries.
¶13 In July 2015, over six months after J.G.’s death,
Attorney Batterman first notified the Superior, Wisconsin
Diocese of the Catholic Church of its status as a beneficiary
under the trust.
¶14 In September and October of 2015, the American Cancer
Society, the School District of Bruce, the Superior, Wisconsin
Diocese of the Catholic Church, and the Alzheimer’s Association
all filed petitions for the removal of the trustee in the matter
of the J.G. Revocable Trust filed in Marathon County Circuit
Court. In its petition, the American Cancer Society alleged
that Attorney Batterman concocted a plan to distribute funds
over a ten year period, rather than make an outright gift to the
American Cancer Society as required by the trust instrument.
Through this plan Attorney Batterman would reap the benefit of
long-term trustee and investment fees paid from the trust, while
his fiancé, an American Cancer Society employee responsible for
implementing the local Relay for Life events, would benefit from
enhanced opportunities for salary increases through the trust’s
stepped-up annual gifting.
¶15 Bruce High School alleged that Attorney Batterman
failed to notify the school it was entitled to a one-time
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No. 2022AP1213-D
distribution of its 25% share, and instead Vigil created a
scholarship trust. Bruce High School also alleged that Attorney
Batterman failed to notify the school that Vigil was the trustee
and Attorney Batterman was the trust protector.
¶16 Attorney Batterman filed a responsive affidavit
addressing the four petitions requesting removal of the trustee.
On October 23, 2015, the circuit court granted the petitioners’
requests for removal of the trustee and appointed Attorney
Terrance Byrn as the new successor trustee.
¶17 On March 1, 2017, Attorney Batterman was deposed in
the trust matter. In his sworn deposition testimony, he
acknowledged that J.G. never indicated he wanted his gifts to be
anonymous. Attorney Batterman also admitted that while he
stated to the American Cancer Society that the trust was a
discretionary trust, Vigil in fact had no discretion over the
trust.
¶18 A court trial was conducted in the trust case on April
27 and May 23, 2017. On September 18, 2017, the circuit court
determined:
Vigil owes each beneficiary a duty to inform and
report. Breach of this duty constitutes a breach of
trust. From the testimony, the Court cannot help but
find Mr. Batterman, slash, Vigil failed to provide the
necessary information to several of the beneficiaries
regarding the gift in a timely manner and upon request
in which many ways has resulted in this extensive and
arguably unnecessary litigation...
This Court finds that the manner in which Vigil failed
to give the appropriate notice to the American Cancer
Association and the manner in which the gift was set
up for distribution not authorized within the trust
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No. 2022AP1213-D
document, often providing incomplete information and
by setting up unilaterally disposition - - or
distribution plans which arguably favor Vigil’s
constant breach of loyalty and duty to inform and
report.
¶19 Following the circuit court’s decision, significant
litigation ensued regarding payment of attorney’s fees. In a
March 19, 2018 oral ruling, the circuit court ordered that
Attorney Batterman and Vigil shall be jointly and severally
liable for attorney’s fees. Attorney Batterman and Midwest
Trust Company, the successor in interest to IITC, filed a notice
of appeal. In January 2019, the appeal was voluntarily
dismissed.
¶20 The OLR’s complaint alleged the following counts of
misconduct with respect to Attorney Batterman’s handling of the
J.G. Trust:
Count 1: By engaging in conduct that amounted to a
breach of trust in In the Matter of the [J.G.]
Revocable Trust, Attorney Batterman violated SCR
20:8.4 (c). 2
Count 2: By misrepresenting to ACS that the trust
donor wished to remain anonymous and that the funds
came from a discretionary trust, Attorney Batterman
violated SCR 20:8.4 (c).
¶21 The OLR’s complaint also alleged that the American
Cancer Society filed a complaint with the Securities Exchange
Commission (SEC) against Financial Fiduciaries and Attorney
Batterman. The SEC investigated the complaint. In a March 5,
2 SCR 20:8.4 (c) provides: “It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
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No. 2022AP1213-D
2018 order, the SEC found that Attorney Batterman caused
Financial Fiduciaries’ violations of various sections of the
Advisers Act, which prohibits an investment advisor from
engaging in a transaction, practice, or course of business which
operates as a fraud or deceit upon a client or a prospective
client and requires an advisor to take enumerated steps to
safeguard client assets over which it has custody. In addition,
the SEC found that Attorney Batterman willfully made untrue
statements of material fact in a registration application or
report filed with the Commission or willfully omitted to state
material facts. The SEC ordered Financial Fiduciaries to pay a
civil money penalty in the amount of $40,000, and it ordered
Attorney Batterman to pay a civil money penalty in the amount of
$20,000.
¶22 The OLR’s complaint alleged the following count of
misconduct with respect to the SEC proceeding:
Count 3: By causing Financial Fiduciaries’ violations
of Sections 206(2), 206(4) and 207 of the Advisors Act
in In the Matter of Financial Fiduciaries, LLC and
Thomas Batterman, SEC Administrative Proceeding File
No. 3-18385, Attorney Batterman violated SCR 20:8.4
(c).
¶23 Finally, the OLR’s complaint alleged that on April 10,
2018, Attorney Batterman was pulled over while operating his
vehicle at 46 miles per hour in a 35 mile per hour zone. During
the traffic stop, the officer detected a strong odor of
intoxicants coming from Attorney Batterman, as well as glassy
eyes and slurred speech. The officer detected some impairment
in field sobriety tests and requested Attorney Batterman to
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No. 2022AP1213-D
submit to a preliminary breath test, which Attorney Batterman
declined. Based on the field sobriety tests, Attorney Batterman
was placed under arrest for Operating While Intoxicated, 2nd
offense. Attorney Batterman subsequently submitted to a blood
draw showing a blood alcohol content of .124, in excess of the
legal limit in Wisconsin.
¶24 On October 19, 2021, a jury found Attorney Batterman
guilty of Operating with a Prohibited Alcohol Concentration, 2nd
offense. He was sentenced to 15 days confinement in the
Marathon County jail, 13 months driver’s license revocation and,
12 months ignition interlock. Attorney Batterman appealed, and
his sentence has been stayed pending appeal.
¶25 The OLR’s complaint alleged the following count of
misconduct with respect to the OWI conviction:
Count 4: By engaging in conduct leading to a criminal
Conviction of Operating with a PAC 2nd offense in
State of Wisconsin v. Thomas Batterman, Marathon
County Case No. 2018CM752, Attorney Batterman violated
SCR 20:8.4 (b). 3
¶26 Attorney Batterman filed his petition for revocation
by consent on December 8, 2022. The petition alleges that
Attorney Batterman cannot successfully defend himself against
the professional misconduct alleged in the complaint. The
petition states Attorney Batterman has been represented by
counsel in the matter and is freely, voluntarily, and knowingly
SCR 20:8.4 (b) provides: “It is professional misconduct
3
for a lawyer to commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer in
other respects.”
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No. 2022AP1213-D
filing his petition for revocation by consent. Attorney
Batterman further states that by filing the petition he
understands he is giving up his right to further contest each
misconduct allegation in the complaint.
¶27 The OLR filed a memorandum recommending that Attorney
Batterman’s petition for revocation by consent be granted and
that his Wisconsin law license be revoked.
¶28 Having reviewed Attorney Batterman’s petition for
consensual revocation and OLR’s recommendation on the petition,
we grant Attorney Batterman’s petition for the revocation of his
license to practice law in Wisconsin. In the trust proceeding,
Attorney Batterman engaged in conduct involving dishonesty,
fraud, deceit or misrepresentation. The SEC found that he
engaged in conduct which operated as a fraud or deceit upon a
client.
¶29 The seriousness of Attorney Batterman’s misconduct
demonstrates that it is appropriate to revoke his law license in
order to protect the public, the courts, and the legal system
from repetition of his misconduct; to impress upon him the
seriousness of his misconduct; and to deter other attorneys from
engaging in similar misconduct. This court has previously
revoked attorneys’ licenses when they face multiple counts of
misconduct, including misconduct consisting of dishonesty,
fraud, deceit or misrepresentation. See, e.g., In re
Disciplinary Proceedings against Vaitys, 2019 WI 85, 388 Wis. 2d
259, 932 N.W. 2d 400.
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No. 2022AP1213-D
¶30 Since this matter was resolved without the need to
appoint a referee, we assess no costs against Attorney
Batterman.
¶31 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶32 IT IS FURTHER ORDERED that the license of Thomas W.
Batterman to practice law in Wisconsin is revoked, effective the
date of this order.
¶33 IT IS FURTHER ORDERED that Thomas W. Batterman shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
revoked.
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No. 2022AP1213-D.akz
¶34 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). I
concur in the court's order revoking Attorney Batterman’s
license to practice law in Wisconsin. I write separately to
point out that in Wisconsin the "revocation" of an attorney's
law license is not truly revocation because the attorney may
petition for reinstatement after a period of five years. See
SCR 22.29(2). I believe that when it comes to lawyer
discipline, courts should say what they mean and mean what they
say. We should not be creating false perceptions to both the
public and to the lawyer seeking to practice law again. See In
re Disciplinary Proceedings Against Moodie, 2020 WI 39, 391
Wis. 2d 196, 942 N.W.2d 302 (Ziegler, J., dissenting). And, as
I stated in my dissent to this court's order denying Rule
Petition 19-10, In the Matter of Amending Supreme Court Rules
Pertaining to Permanent Revocation of a License to Practice Law
in Attorney Disciplinary Proceedings, I believe there may be
rare and unusual cases that would warrant the permanent
revocation of an attorney's license to practice law. See S. Ct.
Order 19-10 (issued Dec. 18, 2019) (Ziegler, J., dissenting).
¶35 I am authorized to state that Justices REBECCA GRASSL
BRADLEY, BRIAN HAGEDORN, and JILL J. KAROFSKY join this
concurrence.
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No. 2022AP1213-D.akz
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