Office of Lawyer Regulation v. Richard W. Voss , 365 Wis. 2d 442 ( 2015 )

2015 WI 104
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2086-W
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Richard W. Voss,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST VOSS
OPINION FILED: December 8, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 104
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2086-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 8, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Richard W. Voss,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed by
Richard W. Voss and the Office of Lawyer Regulation (OLR),
pursuant to Supreme Court Rule (SCR) 22.12,1 which sets forth
1
SCR 22.12 (Stipulation) provides:
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may
consider the complaint and stipulation without the
appointment of a referee, in which case the supreme
(continued)
No. 2014AP2086-D
findings of fact and conclusions of law regarding Attorney
Voss's six counts of professional misconduct. Attorney Voss is
already under suspension pursuant to the 18-month suspension
ordered in In re Disciplinary Proceedings Against Voss,
2014 WI 75, 356 Wis. 2d 382, 850 N.W.2d 190, which runs until
February 22, 2016.
¶2 The parties' stipulation did not contain an agreement
regarding the appropriate level of discipline to be imposed.
court may approve the stipulation, reject the
stipulation, or direct the parties to consider
specific modifications to the stipulation.
(2) If the supreme court approves a stipulation,
it shall adopt the stipulated facts and conclusions of
law and impose the stipulated discipline.
(3) If the supreme court rejects a stipulation, a
referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(3m) If the supreme court directs the parties to
consider specific modifications to the stipulation,
the parties may, within 20 days of the date of the
order, file a revised stipulation, in which case the
supreme court may approve the revised stipulation,
adopt the stipulated facts and conclusions of law, and
impose the stipulated discipline. If the parties do
not file a revised stipulation within 20 days of the
date of the order, a referee shall be appointed and
the matter shall proceed as a complaint filed without
a stipulation.
(4) A stipulation rejected by the supreme court
has no evidentiary value and is without prejudice to
the respondent's defense of the proceeding or the
prosecution of the complaint.
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No. 2014AP2086-D
The parties agreed to brief the issue of sanctions before the
referee, James R. Erickson.
¶3 The referee accepted the stipulation and found, based
on the stipulation, that the stipulated facts supported a
conclusion of misconduct on all six counts. The referee
recommended that the court suspend Attorney Voss for a 60-day
period, consecutive to the 18-month suspension Attorney Voss is
currently serving. The referee also recommended that the court
assess the OLR's full costs against Attorney Voss, which total
$2,801.98 as of July 30, 2015.
¶4 Because no appeal has been filed from the referee's
report and recommendation, we review the matter pursuant to
SCR 22.17(2).2 We adopt the findings of fact and conclusions of
law to which the parties have stipulated and as adopted by the
referee. We agree that the seriousness of Attorney Voss's
misconduct warrants a 60-day suspension of his license to
practice law, consecutive to the 18-month suspension he is
currently serving, together with costs.
¶5 Attorney Voss was admitted to the practice of law in
Wisconsin in 1976.
2
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
3
No. 2014AP2086-D
¶6 Attorney Voss has been disciplined previously for
misconduct. In 2004, Attorney Voss was privately reprimanded
for failing to provide competent representation and failing to
keep a client reasonably informed. Private Reprimand
No. 2004-24.3 In 2006, Attorney Voss received a public reprimand
for various trust account violations. Public Reprimand of
Richard W. Voss, 2006-7. In 2014, Attorney Voss received an
18-month suspension for his conduct as the court-appointed
guardian of the person and estate of an individual suffering
from mental illness. This court determined that Attorney Voss
committed 11 counts of misconduct by, among other things,
converting at least $48,791.73 of his client's funds either for
his own use or to cover expenditures for other client matters,
committing various trust account violations, and making
misrepresentations to the circuit court regarding his client's
assets. Voss, 356 Wis. 2d 382.
¶7 This disciplinary matter involves six counts of
misconduct, four of which concern Attorney Voss's work in
bankruptcy matters, and two of which concern Attorney Voss's
trust account practices. We take the following facts from the
parties' stipulation.
3
The OLR's complaint and the parties' stipulation both cite
Private Reprimand No. 2004-25, but that matter involved criminal
conduct by a lawyer, which clearly does not fit the description
of Attorney Voss's misconduct. Private Reprimand No. 2004-24
involved violations of SCRs 20:1.1 and 20:1.4(a).
4
No. 2014AP2086-D
¶8 Attorney Voss was hired to file bankruptcies for his
clients, J.M. and L.R. In both cases, before doing any work,
Attorney Voss had the client pay approximately $500 in attorney
fees and approximately $300 in filing fees. Attorney Voss
placed these funds into his client trust account. It is
undisputed that while the funds remained in trust, they remained
an asset of the client.
¶9 Attorney Voss, or his staff under his direction, told
J.M. and L.R. that the firm would file a fee waiver application
with the appropriate United States Bankruptcy Court. Attorney
Voss's office would prepare the fee waiver application, along
with the bankruptcy petition. When drafting these documents,
Attorney Voss failed to disclose to the bankruptcy court that
the filing fee had already been paid by the client and that
Attorney Voss was holding the funds in trust.
¶10 Attorney Voss, or his staff under his direction, had
J.M. and L.R. sign the bankruptcy documents under penalty of
perjury. In signing the bankruptcy documents, J.M. and L.R.
verified that the documents were accurate, including a statement
that they could not afford to pay the filing fee, and including
an asset disclosure that did not disclose the filing fee
payments held in Attorney Voss's firm's trust account.
¶11 In the J.M. bankruptcy case, the bankruptcy court
denied the filing fee waiver application on September 25, 2013.
The court ordered that J.M. pay the filing fee in installments
beginning on October 25, 2013. Neither Attorney Voss nor his
staff contacted J.M. to let her know of the denial of her filing
5
No. 2014AP2086-D
fee waiver application. J.M. first learned that the bankruptcy
court had denied her waiver application and that her filing fee
remained unpaid at the meeting of creditors on October 17, 2013.
J.M. was upset upon learning this information because she had
paid the filing fee to Attorney Voss months earlier and had not
been told of the denial of her filing fee waiver application.
¶12 On October 25, 2013——the date the first installment of
J.M.'s filing fee was due——Attorney Voss's secretary paid the
filing fee in full. Before this date, Attorney Voss's secretary
had experienced difficulties determining from the bankruptcy
court's website how much was owed as a filing fee and how to pay
it. Because Attorney Voss's secretary did not inform him of her
difficulties in paying the filing fee, Attorney Voss was unaware
of the problems until he received a letter from the OLR about
the matter.
¶13 In the L.R. bankruptcy case, the bankruptcy court
approved L.R.'s filing fee waiver application. When Attorney
Voss received the notice of the approval, he refunded to L.R.
the filing fee which was held in trust.
¶14 Attorney Voss has submitted filing fee waiver
applications for bankruptcy clients other than J.M. and L.R.
after having collected filing fees from those other clients. In
all of those cases, the filing fee held in trust was not
disclosed as an asset of the debtor in the bankruptcy documents.
If the bankruptcy court waived the filing fee, Attorney Voss's
office returned the filing fee to the clients. If the
6
No. 2014AP2086-D
bankruptcy court did not waive the filing fees, Attorney Voss's
office paid the filing fee to the bankruptcy court.
¶15 The remaining conduct at issue concerns Attorney
Voss's continued inability or unwillingness to comply with the
trust account rules. Since at least 1986, Attorney Voss has
used a particular bank account at M&I Bank (n/k/a BMO Harris
Bank) as his client trust account. Attorney Voss has designated
this account as his client trust account. However, the account
is not an Interest on Lawyer Trust Accounts (IOLTA) account and
does not accrue interest to be paid to the Wisconsin Trust
Account Foundation, Inc.
¶16 Attorney Voss has long been on notice that he must
rectify his handling of trust account funds. In 2006, Attorney
Voss received a public reprimand for misconduct that, in part,
related to his failure to maintain accurate records of his trust
account activity and his failure to maintain an IOLTA trust
account. In 2012, the OLR filed a disciplinary complaint
seeking to discipline Attorney Voss for misconduct that included
his failure to maintain an IOLTA trust account; this complaint
culminated in the 18-month suspension which Attorney Voss is
currently serving. Attorney Voss continued, throughout these
prior matters, and throughout the OLR's investigation of the
present matter, to use the non-IOLTA account at M&I Bank (n/k/a
BMO Harris Bank) as his client trust account.
¶17 In late 2013, the OLR requested a copy of Attorney
Voss's trust account transaction register for the period of time
in which he was holding J.M.'s filing fee in trust. Attorney
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No. 2014AP2086-D
Voss provided to the OLR a list of deposits and a separate list
of disbursements, which did not separately or collectively meet
the requirements for compliant trust account documents.
¶18 On the basis of these facts, the parties stipulated,
and the referee concluded, that Attorney Voss committed the
following acts of misconduct:
 Count One: By filing or causing his staff to file
applications for filing fee waivers with the United
States Bankruptcy Courts on behalf of clients that
failed to disclose the amounts being held by Attorney
Voss on behalf of the clients for payment of their
filing fees, and thereby failing to comply with
applicable Federal Rules of Bankruptcy Procedure,
Attorney Voss violated SCR 20:3.4(c).4
 Count Two: By filing or causing his staff to file on
behalf of clients applications for filing fee waivers
with United States Bankruptcy Courts that failed to
disclose the funds being held in trust by Attorney
Voss on behalf of the clients for payment of their
filing fees, Attorney Voss violated SCR 20:8.4(c).5
4
SCR 20:3.4 (c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
5
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
8
No. 2014AP2086-D
 Count Three: By failing to adequately supervise his
staff so as to ensure that documents prepared and
filed by his staff on behalf of clients conformed in
all respects with applicable law and court rules and
were in all respects accurate, Attorney Voss violated
SCR 20:5.3(a) and (b).6
 Count Four: By failing to take reasonable steps to
ensure his staff timely informed him and/or clients of
case developments, including the payment status of
filing fees, Attorney Voss violated SCR 20:5.3(a) and
(b).
 Count Five: By (i) failing to maintain a pooled
interest bearing account; (ii) failing to participate
in the Interest on Trust Accounts Program; and (iii)
depositing client and third party funds that are
nominal in amount and/or intended to be held for a
6
SCR 20:5.3(a) and (b) provide that, with respect to a
nonlawyer employed or retained by or associated with a lawyer,
(a) a partner, and a lawyer who individually or
together with other lawyers possesses comparable
managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the
person's conduct is compatible with the professional
obligations of the lawyer;
(b) a lawyer having direct supervisory authority
over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with
the professional obligations of the lawyer[.]
9
No. 2014AP2086-D
short period of time in a non-interest-bearing
account, Attorney Voss violated SCR 13.047 and
SCR 20.15(c)(l).8
 Count Six: By failing to provide the OLR with a copy
of his trust account transaction register for the
period requested of him by the OLR, Attorney Voss
violated SCR 20:1.15(e)(7).9 In the alternative, by
failing to maintain a compliant transaction register
7
SCR 13.04 provides, as relevant here, that "an attorney
shall participate in the [Interest on Trust Accounts] program as
provided in SCR 20:1.15[.]"
8
SCR 20:1.15(c)(1) provides:
A lawyer or law firm who receives client or 3rd-
party funds that the lawyer or law firm determines to
be nominal in amount or that are expected to be held
for a short period of time such that the funds cannot
earn income for the benefit of the client or 3rd party
in excess of the costs to secure that income, shall
maintain a pooled interest-bearing or dividend-paying
draft trust account in an IOLTA participating
institution.
9
SCR 20:1.15(e)(7) provides:
All trust account records have public aspects
related to a lawyer's fitness to practice. Upon
request of the office of lawyer regulation, or upon
direction of the supreme court, the records shall be
submitted to the office of lawyer regulation for its
inspection, audit, use, and evidence under any
conditions to protect the privilege of clients that
the court may provide. The records, or an audit of the
records, shall be produced at any disciplinary
proceeding involving the lawyer, whenever material.
Failure to produce the records constitutes
unprofessional conduct and grounds for disciplinary
action.
10
No. 2014AP2086-D
for the period requested, Attorney Voss violated
SCR 20:1.15(f)(l)a.10
¶19 The parties briefed the issue of sanctions before the
referee. The OLR encouraged the referee to recommend a
six-month license suspension of Attorney Voss's Wisconsin law
license, to run consecutive to his present suspension. Attorney
Voss encouraged the referee to recommend a less-than-six-month
suspension, to run concurrent to his present suspension.
¶20 In his report, the referee recommended that the court
impose a 60-day license suspension, to run consecutive to
Attorney Voss's present suspension. The referee wrote that a
six-month period of suspension following Attorney Voss's
18-month suspension, as the OLR requested, was unnecessary to
10
SCR 20:1.15(f)(1)a. provides that complete records of a
trust account that is a draft account shall include a
transaction register. Specifically:
The transaction register shall contain a
chronological record of all account transactions, and
shall include all of the following:
1. the date, source, and amount of all deposits;
2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;
3. the date and amount of every other deposit or
deduction of whatever nature;
4. the identity of the client for whom funds were
deposited or disbursed; and
5. the balance in the account after each
transaction
11
No. 2014AP2086-D
meet the goals of Wisconsin's disciplinary system——especially
since, in the referee's view, Attorney Voss's misconduct has
"more to do with sloppy office supervision and inadequate staff
and self-training than it has to do with intentional
professional misconduct."
¶21 Because no appeal was filed from the referee's report
and recommendation, our review proceeds pursuant to
SCR 22.17(2). When reviewing a report and recommendation in an
attorney disciplinary proceeding, we affirm a referee's findings
of fact unless they are found to be clearly erroneous. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5,
305 Wis. 2d 71, 740 N.W.2d 125. We review the referee's
conclusions of law, however, on a de novo basis. Id. Finally,
we determine the appropriate level of discipline given the
particular facts of each case, independent of the referee's
recommendation but benefitting from it. In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,
660 N.W.2d 686.
¶22 We adopt the findings of fact and conclusions of law
to which the parties have stipulated and as adopted by the
referee. We agree with the referee that the stipulated facts
demonstrate that Attorney Voss committed each of the six counts
of misconduct alleged in the OLR's complaint.
¶23 We further agree with the referee that Attorney Voss's
misconduct warrants a 60-day suspension of his Wisconsin law
license. In imposing a 60-day suspension in lieu of a lengthier
suspension, we note particularly the referee's determination
12
No. 2014AP2086-D
that Attorney Voss's mistakes were more a result of slipshod
practices, as Attorney Voss claimed, than flagrant misconduct,
as the OLR claimed——a determination from which the OLR has not
appealed. Even given that the events in this case were merely
the result of sloppy lawyering, however, we have no difficulty
justifying a 60-day suspension. See, e.g., In re Disciplinary
Proceedings Against McKloskey, 2009 WI 65, 318 Wis. 2d 602,
768 N.W.2d 10 (60-day suspension for sloppy and careless trust
account procedures and failure to keep a client informed).
¶24 We further agree with the referee that the 60-day
suspension should run consecutive to Attorney Voss's present
18-month suspension. We were concerned enough with Attorney
Voss's practice habits to impose a lengthy 18-month suspension.
Were we aware of the facts presented here, which further call
into question Attorney Voss's trust accounting practices and
forthrightness with courts and clients, we are confident we
would have imposed an even longer suspension. A consecutively
imposed suspension is therefore in order. See In re
Disciplinary Proceedings Against Woodard, 190 Wis. 2d 487, 488,
526 N.W.2d 510 (1995).
¶25 We note that Attorney Voss has filed no objection to
the costs requested by the OLR, which total $2,801.98 as of
July 30, 2015. We therefore impose them.
¶26 Finally, we note that the OLR did not seek restitution
in this case. None is ordered.
¶27 IT IS ORDERED that the license of Richard W. Voss to
practice law in Wisconsin is suspended for a period of 60 days,
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No. 2014AP2086-D
to run consecutive to the discipline imposed in In re
Disciplinary Proceedings Against Voss, 2014 WI 75,
356 Wis. 2d 382, 850 N.W.2d 190.
¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Richard W. Voss shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶29 IT IS FURTHER ORDERED that compliance with all
conditions of this decision is required for reinstatement. See
SCR 22.28(2).
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No. 2014AP2086-D
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