Office of Lawyer Regulation v. Andrew J. Bryant ( 2014 )

2014 WI 43
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP484-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Andrew J. Bryant, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Andrew J. Bryant,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BRYANT
OPINION FILED: June 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ROGGENSACK, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 43
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP484-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Andrew J. Bryant, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUN 24, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Andrew J. Bryant,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of the referee, Attorney Lisa C. Goldman, which was based in
part upon the stipulation of the Office of Lawyer Regulation
(OLR) and Attorney Andrew J. Bryant. As jointly requested by
the parties, the referee recommends that Attorney Bryant's
license be suspended for a period of four months. The referee,
however, adds to the parties' stipulation and recommends that
the court impose a number of conditions upon Attorney Bryant's
No. 2012AP484-D
reinstatement to the practice of law and upon his practice of
law following his reinstatement.
¶2 After thoroughly reviewing the parties' stipulation,
the referee's recommendation, and the record in this matter, we
conclude that the stipulated facts demonstrate that Attorney
Bryant committed all of the 15 counts of misconduct alleged in
the OLR's complaint. We determine that the requested level of
discipline, a four-month suspension, is an appropriate level of
discipline to impose for Attorney Bryant's professional
misconduct. While we agree with the referee that Attorney
Bryant should be required to pay restitution to two former
clients, we do not follow the referee's recommendation regarding
the imposition of a monitoring program. We impose other
conditions on Attorney Bryant's reinstatement that we believe
will adequately ensure Attorney Bryant's ability to practice law
and conform his conduct to the Rules of Professional Conduct for
Attorneys.
Attorney Bryant's Practice and Disciplinary History
¶3 According to the referee's report, Attorney Bryant was
admitted to the practice of law in Wisconsin in 1992. He most
recently practiced as a solo attorney in Verona.
¶4 Attorney Bryant has received professional discipline
on one prior occasion. In January 2012 Attorney Bryant received
a consensual private reprimand arising out of his representation
of a client in a post-divorce proceeding regarding the
modification of child support. Private Reprimand, No. 2012-01.
His misconduct in that matter included a lack of competence, a
2
No. 2012AP484-D
lack of diligence, a failure to consult with his client
regarding the means by which the objectives of the
representation were to be pursued, and a failure to keep his
client adequately informed.
¶5 In addition, although it does not qualify as the
imposition of professional discipline, it should be noted that
in 2012 this court issued two separate orders temporarily
suspending Attorney Bryant's license due to his willful failure
to cooperate with OLR grievance investigations. Both of those
temporary suspensions have remained in effect up to the date of
this opinion.
Allegations of the Complaint
¶6 The OLR's complaint in this matter alleged 15 separate
counts of misconduct arising out of three client representations
and the practice of law during a period of suspension.
¶7 The first count of the OLR's complaint alleged that
Attorney Bryant had failed to pay his bar dues and supreme court
assessments and to provide a signed trust account certification,
all of which were due on July 1, 2010. In September 2010 the
State Bar of Wisconsin sent Attorney Bryant a letter advising
him that if he did not pay his bar dues and assessments and
provide his trust account certification by 5:00 p.m. on
November 1, 2010, his license to practice law in this state
would be automatically suspended. Attorney Bryant failed to
comply with his obligations, and his law license was suspended
on November 1, 2010. On November 4, 2010, Attorney Bryant
appeared at circuit court proceedings on behalf of clients in
3
No. 2012AP484-D
two separate actions—one in Dane County circuit court and one in
Columbia County circuit court. In addition, in the Columbia
County case Attorney Bryant also filed a motion and affidavit on
behalf of his clients. Attorney Bryant's law license was
subsequently reinstated on November 9, 2010. The complaint
alleged that Attorney Bryant's practice of law while his license
was administratively suspended constituted a violation of
4
No. 2012AP484-D
SCRs 10.03(6),1 20:1.15(i)(4),2 and 22.26(2),3 which are enforced
via SCR 20:8.4(f).4
¶8 Counts two through six of the complaint related to
Attorney Bryant's representation of V.F. and J.R., who were
husband and wife. In September 2009 the couple retained
1
SCR 10.03(6) states: Penalty for nonpayment of dues.
If the annual dues or assessments of any member remain
unpaid 120 days after the payment is due, the
membership of the member may be suspended in the
manner provided in the bylaws; and no person whose
membership is so suspended for nonpayment of dues or
assessments may practice law during the period of the
suspension.
2
SCR 20:1.15(i)(4) states: Suspension for non-compliance.
The failure of a state bar member to file the
certificate is grounds for automatic suspension of the
member's membership in the state bar in the same
manner provided in SCR 10.03(6) for nonpayment of
dues. The filing of a false certificate is
unprofessional conduct and is grounds for disciplinary
action.
3
SCR 22.26(2) provides as follows:
An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity
customarily done by law students, law clerks, or other
paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.
4
SCR 20:8.4(f) states it is professional misconduct for a
lawyer to "violate a statute, supreme court rule, supreme court
order or supreme court decision regulating the conduct of
lawyers; . . . ."
5
No. 2012AP484-D
Attorney Bryant for the purpose of filing a joint petition for
divorce. Attorney Bryant did not obtain a written conflict
waiver for the representation of both individuals. He told V.F.
that the entire representation could be completed for $1,500 so
V.F. gave Attorney Bryant a check for that amount. Attorney
Bryant deposited the funds into his business account but did not
follow any of the requirements for the advanced fee alternative
procedure in SCR 20:1.15(b)(4m). Although Attorney Bryant
expected that the cost of the representation would exceed
$1,000, he did not prepare a written fee agreement.
¶9 Shortly after his initial meeting with V.F. and J.R.,
Attorney Bryant prepared a joint petition for divorce, obtained
the signatures of both spouses, and filed the petition in the
Dane County circuit court. In November 2009 Attorney Bryant
spoke with V.F. about the need to obtain an expedited divorce
hearing due to the deteriorating mental competence of J.R.
Attorney Bryant promised to prepare and submit a proposed
Marital Settlement Agreement (MSA) to V.F. for his review. In
January 2010 Attorney Bryant met with both V.F. and J.R. to
review their financial disclosure statements and to discuss the
proposed MSA. In April 2010 Attorney Bryant received an
executed signature page for the MSA from V.F. He did not
receive a signature page from J.R.
¶10 In May 2010 the circuit court issued a notice stating
that due to inactivity in the matter, it would place the divorce
action on the June 25, 2010 docket for possible dismissal.
Neither Attorney Bryant nor either of the parties appeared
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No. 2012AP484-D
before the circuit court on June 25, 2010, causing the court to
dismiss the action. The court issued a written order of
dismissal in early July 2010.
¶11 Attorney Bryant did not notify his clients of the
dismissal. Indeed, V.F. and J.R. did not receive any
correspondence from Attorney Bryant from September 2009 through
September 2010. Around that time V.F. learned from his daughter
that the divorce action had been dismissed. On several
occasions he asked Attorney Bryant to re-file the divorce
petition, but Attorney Bryant did not do so. In December 2010
V.F.'s daughter sent multiple e-mails to Attorney Bryant again
asking him to re-file the divorce petition and to seek an
expedited hearing. Finally, on December 16, 2010, Attorney
Bryant re-filed the divorce petition, although he did not ask
for an expedited hearing.
¶12 On February 1, 2011, V.F. terminated Attorney Bryant's
representation and retained Attorney Anthony Menting to proceed
with the divorce action. On that same date Attorney Menting
sent a draft stipulation and order for substitution of counsel
to Attorney Bryant and also requested that Attorney Bryant
provide a complete copy of his file on the matter. Attorney
Bryant did not provide the file or otherwise respond to the
letter. Attorney Menting sent another letter to Attorney Bryant
regarding these matters in mid-February. On March 16, 2011,
Attorney Bryant forwarded the file to Attorney Menting.
¶13 On March 29, 2011, Attorney Bryant sent an invoice to
V.F. The invoice sought $800 for Attorney Bryant's fees and
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No. 2012AP484-D
$369 for disbursed costs. Attorney Bryant offered to return the
remainder of the $1,500 advanced fee ($331) to V.F. On June 24,
2011, Attorney Bryant sent a check to V.F. in the amount of $331
pursuant to his offer. V.F. rejected the check.
¶14 The complaint alleged that Attorney Bryant had
committed five ethical violations in connection with his
representation of V.F. and J.R. By representing two individuals
in a joint divorce petition without obtaining a written waiver
of the conflict, Attorney Bryant violated SCR 20:1.7(a)5 (Count
Two). By failing to utilize a written fee agreement when he had
agreed to represent V.F. and J.R. for a fee of $1,500, Attorney
Bryant violated SCR 20:1.5(b)(2)6 (Count Three). By accepting
the $1,500 advanced fee and failing to deposit the advanced fee
into his trust account in the absence of any intent to utilize
5
SCR 20:1.7(a) states:
Except as provided in par. (b), a lawyer shall
not represent a client if the representation involves
a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's responsibilities to
another client, a former client or a third person or
by a personal interest of the lawyer.
6
SCR 20:1.5(b)(2) states that "[i]f the total cost of
representation to the client, including attorney's fees, is more
than $1000, the purpose and effect of any retainer or advance
fee that is paid to the lawyer shall be communicated in
writing."
8
No. 2012AP484-D
the alternative advanced fee procedure, Attorney Bryant violated
SCR 20:1.15(b)(4)7 (Count Four). The complaint further alleged
that Attorney Bryant had demonstrated a lack of reasonable
diligence, in violation of SCR 20:1.3,8 by failing to advance the
interests of his clients for more than a year after the clients
informed him of their need to expedite the matter due to J.R.'s
failing health (Count Five). Finally, Attorney Bryant's failure
to provide the clients' file to successor counsel in a timely
manner, despite requests to do so, constituted a violation of
SCR 20:1.16(d)9 (Count Six).
¶15 Counts seven through twelve of the complaint related
to Attorney Bryant's representation of client M.C. Attorney
7
SCR 20:1.15(b)(4) states: Unearned fees and cost
advances.
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.
8
SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
9
SCR 20:1.16(d) states as follows:
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.
9
No. 2012AP484-D
Bryant was retained by M.C. as successor counsel in a personal
injury lawsuit that M.C. had filed arising out of injuries he
had suffered in a motor vehicle collision. Attorney Bryant
first appeared on M.C.'s behalf at a scheduling conference held
on January 6, 2010. The resulting scheduling order required
M.C. to provide the defendants with a preliminary list of lay
and expert witnesses and a written summary report by February 5,
2010. The order contained the following statement in bold
capital letters: "FAILURE TO ABIDE BY THIS ORDER MAY RESULT IN
SANCTIONS." Attorney Bryant did not provide either the
preliminary witness list or the summary report as mandated by
the scheduling order, nor did he request an extension to do so.
¶16 Due to Attorney Bryant's noncompliance, the circuit
court held a second scheduling conference on May 14, 2010. At
that time, three months after the initial deadline, Attorney
Bryant filed M.C.'s list of expected lay and expert witnesses.
Attorney Bryant named all of M.C.'s treating physicians and a
vocational expert. At the second scheduling conference, the
circuit court required M.C. to provide all expert witness
reports by July 16, 2010. The resulting scheduling order
contained the same warning about possible sanctions for
noncompliance as had been in the first scheduling order.
Despite the warning, Attorney Bryant failed to provide the
expert witness reports by the scheduled date and did not seek an
extension of the deadline.
¶17 Attorney Bryant's noncompliance caused the defendants
to file a motion for sanctions. Attorney Bryant did not file a
10
No. 2012AP484-D
written response to the motion. After holding a hearing on the
motion on August 26, 2010, the court decided not to impose
sanctions at that time. It issued a third scheduling order,
which extended the deadline for submitting expert witness
reports until October 8, 2010. This order again contained the
warning about the possibility of sanctions in the event of
noncompliance. It also specifically provided that if the expert
witness reports were not submitted by the new deadline, M.C.
would be barred from introducing the experts' testimony at
trial. Attorney Bryant again failed either to comply with the
new scheduling order or to seek a further extension of time.
¶18 The defendants renewed their motion for sanctions,
seeking an order prohibiting M.C. from introducing any expert
testimony. Attorney Bryant did not file a written response to
the motion or advise M.C. that the motion had been filed. On
October 25, 2010, the court entered an order in which it
required M.C. within 10 days to pay to the defendants' counsel
the $1,087.50 in attorney fees that had been incurred in
connection with the August 26, 2010 hearing on the defendants'
original motion to compel. Attorney Bryant did not pay the
sanction himself or notify M.C. that he had been ordered to pay
the defendants' attorney fees.
¶19 In November 2010 the defendants filed a motion to
dismiss due to M.C.'s failure to prosecute and the noncompliance
with the various court orders. Attorney Bryant again did not
file a response or notify M.C. that such a motion had been
filed. Finding that the plaintiff's failure to comply with its
11
No. 2012AP484-D
orders had been egregious, the circuit court granted the motion
to dismiss. It issued a formal order of dismissal with
prejudice on January 6, 2011. Attorney Bryant did not inform
M.C. that his complaint had been dismissed and could not be re-
filed.
¶20 On February 28, 2011, M.C. met with Attorney Bryant to
discuss his case. At that time Attorney Bryant admitted that he
had acted improperly, that M.C.'s case had been dismissed with
prejudice, and that M.C. would not be able to obtain any
recovery for his injuries.
¶21 According to Attorney Bryant's file, during the nearly
one-year period in which he had represented M.C., he had not
served any discovery requests on any of the defendants, had not
interviewed any of M.C.'s treating physicians, and had not
obtained any expert reports (even provisional ones) from the
physicians or from a vocational expert. He did not prepare or
file any written responses to the sanction motions. There also
is no evidence that Attorney Bryant sent any written or
electronic correspondence to M.C. regarding the case or the
various sanction motions filed by the defendants.
¶22 The complaint alleged six counts of misconduct related
to Attorney Bryant's representation of M.C. Count Seven of the
complaint alleged that Attorney Bryant had violated SCR 20:1.110
10
SCR 20:1.1 states, "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
12
No. 2012AP484-D
by failing to provide the requisite skill, thoroughness, and
preparation reasonably necessary for the representation. The
complaint also alleged that Attorney Bryant had failed to act
with reasonable diligence, in violation of SCR 20:1.3 (Count
Eight), and had failed to make reasonable efforts to expedite
M.C.'s litigation, in violation of SCR 20:3.211 (Count Nine). In
addition, by failing to advise M.C. about his failures to comply
with the various scheduling orders, about the two sanction
motions, and ultimately about the dismissal of his complaint,
Attorney Bryant failed to keep his client reasonably informed
about the status of the representation, in violation of SCR
20:1.4(a)(3)12 (Count Ten). Those same failures of communication
also formed the basis for Count Eleven of the complaint, which
alleged a violation of SCR 20:1.4(b)13 for failing to explain
matters sufficiently to allow M.C. to make informed decisions
regarding the representation. Count Twelve of the complaint
alleged that Attorney Bryant had knowingly disobeyed the circuit
11
SCR 20:3.2 states, "A lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of
the client."
12
SCR 20:1.4(a)(3) states that a lawyer shall "keep the
client reasonably informed about the status of the
matter; . . . ."
13
SCR 20:1.4(b) states, "A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
13
No. 2012AP484-D
court's various scheduling and sanction orders, leading to the
dismissal of M.C.'s complaint, in violation of SCR 20:3.4(c).14
¶23 The last set of counts in the complaint related to
Attorney Bryant's representation of C.H., a respondent in a
divorce action. Attorney Bryant apparently entered an
appearance in the divorce action after it had been pending for a
substantial amount of time. On September 5, 2007, approximately
six months after he entered his appearance on C.H.'s behalf,
opposing counsel sent proposed findings of fact, conclusions of
law, and a judgment of divorce (the judgment) to Attorney Bryant
for his review pursuant to a directive from the court. On
October 24, 2007, opposing counsel sent a letter to the circuit
court stating that Attorney Bryant had not responded to the
proposed judgment. On October 30, 2007, opposing counsel filed
a motion for contempt, which was noticed for hearing on
November 28, 2007. On that same date the court signed the
proposed judgment without receiving any comments on the document
from Attorney Bryant. One provision of the judgment was that
D.H., C.H.'s spouse, was to receive ownership of some individual
retirement accounts (IRAs) and an annuity that were titled in
C.H.'s name and were being administered by Northwestern Mutual
Life Insurance Company (NML).
14
SCR 20:3.4(c) states 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; . . . ."
14
No. 2012AP484-D
¶24 On November 28, 2007, Attorney Bryant filed a notice
of appeal from the judgment of divorce signed by the circuit
court. On that same date, the circuit court conducted a hearing
on D.H.'s motion for contempt. The court found C.H. in contempt
and ordered her to prepare a Qualified Domestic Relations Order
(QDRO) that would transfer specified assets to D.H.
¶25 Attorney Bryant subsequently contacted Jewel Goodwin
at NML regarding the transfer of the specified assets to D.H.
Goodwin informed Attorney Bryant that NML required a copy of the
court's judgment before it would transfer the assets. On
December 28, 2007, Attorney Bryant sent NML a copy of the notice
of appeal he had filed rather than a copy of the judgment. His
communication informed NML that C.H. had "appealed the entire
decision." On the basis of this representation and document,
NML did not transfer the assets to D.H.
¶26 When D.H.'s counsel had not received a draft QDRO by
January 10, 2008, he requested a status conference with the
circuit court. The court subsequently issued an order directing
Attorney Bryant to draft the QDRO consistent with the court's
judgment. On February 18, 2008, D.H.'s counsel sent a letter to
Attorney Bryant inquiring about the status of the QDRO. On
April 1, 2008, D.H.'s counsel sent a letter to the circuit court
complaining that he had still not received a completed QDRO from
Attorney Bryant. In late May 2008, the court ordered Attorney
Bryant to pay $500 to opposing counsel for his fees connected
with the delay in the preparation of the QDRO. The court also
ordered Attorney Bryant to turn over all materials relating to
15
No. 2012AP484-D
the QDRO to a neutral attorney selected by the court, who would
prepare the QDRO. The court further ordered that the neutral
attorney's fees would be paid by Attorney Bryant and his client.
¶27 In October 2009 the court of appeals affirmed the
circuit court's judgment of divorce. Shortly thereafter, D.H.
sent a copy of the court of appeals' decision to Goodwin at NML,
who forwarded the information to Connie Piskula, who handled IRA
matters. Although the circuit court's judgment had now been
affirmed on appeal, on October 29, 2009, Attorney Bryant sent a
facsimile transmission to Piskula, which stated that "the status
of the case is pending, issues remain unresolved and no
distributions or changes to accounts or policies should be made
at this time." On November 3, 2009, Attorney Bryant telephoned
Piskula and told her to wait on the transfer of the assets to
D.H. because Attorney Bryant had filed a motion for rehearing.
This was a false statement because he had not filed any such
motion.
¶28 On November 17, 2009, Piskula sent a facsimile
transmission to Attorney Bryant, which recited the statements he
had made during the telephone call on November 3, 2009, and
asked for a copy of the motion for rehearing. The communication
further advised Attorney Bryant that if Piskula did not receive
a copy of the motion by November 20, 2009, she would lift all
transfer restrictions on C.H.'s accounts. Attorney Bryant did
not respond. Consequently, NML transferred ownership of the
IRAs and the annuity to D.H. on December 1, 2009, more than two
years after the entry of the divorce judgment.
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No. 2012AP484-D
¶29 In a hearing held shortly after the transfer of the
accounts to D.H., the circuit court described Attorney Bryant's
statements in the matter as "misleading," "not truthful" and
"undertaken for the purpose of delay."
¶30 The complaint alleged three counts arising out of
Attorney Bryant's representation of C.H. and his interactions
with NML. By taking steps to delay the transfer of ownership of
the IRA and annuity accounts, when Attorney Bryant knew that
such actions would serve merely to harass or injure D.H.,
Attorney Bryant violated SCR 20:3.1(a)(3)15 (Count Thirteen).
Further, Attorney Bryant's false statements to NML in which he
had misrepresented the status of the appeal and had claimed that
a motion for rehearing had been filed constituted violations of
SCR 20:4.1(a)(1)16 (Count Fourteen). Finally, the complaint
alleged that those same misrepresentations had also constituted
violations of SCR 20:8.4(c)17 (Count Fifteen).
Procedural History before the Referee
15
SCR 20:3.1(a)(3) states that in representing a client, a
lawyer shall not "file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another."
16
SCR 20:4.1(a)(1) states that in the course of
representing a client a lawyer shall not knowingly "make a false
statement of a material fact or law to a 3rd person; . . . ."
17
SCR 20:8.4(c) states that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . ."
17
No. 2012AP484-D
¶31 Attorney Bryant did not file an answer to the
complaint. After the referee was appointed, Attorney Bryant
reached a stipulation with the OLR. The stipulation was not set
forth in a written document signed by the parties. Rather, at a
May 17, 2012 hearing the parties orally put the stipulation on
the record through the OLR's examination of Attorney Bryant.
Through his answers to the OLR's questions, Attorney Bryant
stipulated that the factual allegations in the complaint were
accurate and that he had committed all of the 15 counts of
misconduct alleged in the complaint. With respect to the
requested sanction, Attorney Bryant acknowledged that the OLR
was seeking a four-month suspension of his license to practice
law in Wisconsin, and he agreed to jointly request that level of
discipline. Attorney Bryant also stipulated that he owed
restitution in the amount of $1,500 to his former client V.F.
¶32 During the examination, the OLR's counsel obtained
statements from Attorney Bryant that he understood the
allegations of the complaint, that he was not being coerced into
entering into the stipulation, that no one had promised him
anything to enter into the stipulation, that he understood that
he had a right to consult with and be represented by counsel,
that he was waiving his right to counsel, and that he was
entering the stipulation freely and voluntarily.
¶33 Following the examination conducted by counsel for the
OLR, the referee also asked a series of questions of Attorney
Bryant. One of the questions the referee asked was whether
there was anything Attorney Bryant wished the referee to know
18
No. 2012AP484-D
before she prepared her report. Attorney Bryant spoke in
response about having a sense of remorse and about accepting
responsibility for his misconduct. During this part of the
hearing, Attorney Bryant also agreed to repay the entire $1,500
advanced fee to V.F. and J.R. He did not mention any specific
factors that had caused him to engage in the misconduct.
¶34 Over the next several months following this hearing,
the referee asked the parties to provide information regarding
Attorney Bryant's employment history so she could consider that
in the context of preparing her report and sanction
recommendation. She was interested in particular whether there
was a reason why Attorney Bryant's conduct had changed after
having practiced approximately 13 years without any misconduct.
The referee specifically asked whether Attorney Bryant had
experienced any mental health or substance abuse problems.
¶35 Attorney Bryant did not respond to the referee's
repeated requests for information. The OLR on multiple
occasions advised the referee that it was unaware of any issues
related to mental health or substance abuse and that there was
no evidence regarding those matters in the record of the
proceeding. It stated that its file in the matter did not
"indicate the need to explore such issues."
¶36 On September 13, 2012, the OLR's counsel sent a letter
to the referee, stating that an OLR investigator had received a
letter indicating that Attorney Bryant was receiving treatment
for mental health issues. It again asserted that it had not
19
No. 2012AP484-D
possessed any information regarding this issue prior to this
letter.
¶37 On September 18, 2012, the referee filed her report
and recommendation. Based on Attorney Bryant's stipulation, the
referee found that the allegations of the complaint had been
admitted and that Attorney Bryant had violated each of the rules
as alleged in the 15 counts of the complaint.
¶38 Turning to the issue of the appropriate level of
discipline, the referee agreed with the parties that a four-
month suspension of Attorney Bryant's license to practice law in
this state would be proper. She added a recommendation that as
a condition of reinstatement Attorney Bryant should be ordered
"to contact WisLAP18 and agree to all evaluations WisLAP demands
at Mr. Bryant's expense, to sign a monitoring contract with
WisLAP if so recommended by WisLAP, to execute any documents and
releases necessary to allow WisLAP to monitor Mr. Bryant's
treatment, to follow all recommendations of WisLAP, pay all fees
associated with a contract with WisLAP, and successfully
complete his WisLAP contract . . . ." In light of Attorney
Bryant's agreement at the May 17, 2012 hearing, the referee
further recommended that Attorney Bryant should be ordered to
pay $1,500 in restitution to V.F. and J.R.19 Finally, the
18
WisLAP refers to the Wisconsin Lawyers Assistance
Program, which is a member service of the State Bar of
Wisconsin.
19
The OLR's statement on restitution concurs with this
recommendation for restitution.
20
No. 2012AP484-D
referee recommended that Attorney Bryant be required to pay the
full costs of this proceeding.20
¶39 In the discussion section of her report, the referee
commented that Attorney Bryant had been "very remorseful" for
his actions and had "exhibited genuine concern for his conduct."
The referee also raised the issue of mental health or substance
abuse problems. She acknowledged that there was no evidence in
the record regarding such issues. Moreover, the referee stated
that at the May 17, 2012 hearing Attorney Bryant had appeared
coherent, had acknowledged the nature of his behavior, and had
accepted responsibility for his misdeeds. The referee explained
that she had sought the information regarding Attorney Bryant's
employment history in order to demonstrate in her report that
his misconduct at issue in this proceeding had been a "blip on
an otherwise healthy career." The referee continued that
Attorney Bryant's ongoing failure over several months to respond
to any of her requests for the employment information had
bewildered her and had led her to believe that whatever problems
had precipitated the misconduct had not been resolved. Thus,
she had gone beyond the parties' stipulation to include the
recommendation for monitoring by WisLAP.
Post-report Proceedings in this Court
20
The OLR subsequently filed a statement of costs
indicating that the costs of the proceeding until that time had
been $2,343.82. The referee then filed a supplemental report
again recommending that Attorney Bryant be required to pay the
full costs of the proceeding.
21
No. 2012AP484-D
¶40 Within a week after the referee filed her report in
this matter, the OLR received a letter from one of Attorney
Bryant's health care providers. The provider stated that he was
writing at the request of and with the permission of Attorney
Bryant. The letter described health issues which were then
affecting Attorney Bryant and which had led to symptoms that
included problems with memory, concentration, and the ability to
make decisions. The letter further stated that due to those
health issues, Attorney Bryant was unable at that time to
respond to complaints that had been filed with the OLR. It
requested that the OLR temporarily suspend all administrative
proceedings involving Attorney Bryant.
¶41 Although the referee had expressed concern about the
reasons for Attorney Bryant's misconduct and whether any
underlying problems had been resolved, there is no indication
that the OLR provided a copy of the letter to the referee in
this matter. The OLR also did not file a copy of the letter in
this proceeding. It did file a copy of the letter in a
miscellaneous court file in which the OLR was seeking a
temporary suspension due to Attorney Bryant's failure to
cooperate with other grievance investigations.
¶42 As a result of the contents of this letter, this court
subsequently issued an order on May 24, 2013, requiring
responses from both Attorney Bryant and the OLR. The court's
order asked the parties to provide an update on the status of
Attorney Bryant's health, to discuss whether he was currently
able to participate in disciplinary investigations and
22
No. 2012AP484-D
proceedings, whether his health problems had any impact on his
ability to make a knowing and voluntary decision to enter into
the stipulation in this case, and whether he had a basis or a
desire to assert in this case that the sanction for any
misconduct found in this case should be mitigated because of
health problems during the time of the misconduct.
¶43 Attorney Bryant's substantive response to the court's
order stated that his health had improved over the preceding
several months and that he was now able to participate in all
disciplinary investigations and proceedings. The response
further stated that while his health problems had affected the
energy and commitment with which he had dealt with the
proceedings before the referee, his decision to enter into the
stipulation and waive certain rights had been made knowingly,
intelligently and voluntarily. Finally, the response asserted
that while his health problems had been a contributing factor in
his failures to perform diligently and competently in the cases
at issue in this proceeding, he did not wish to argue in this
proceeding that his misconduct had been caused by his health
problems. He stated that he continued to stand by the
stipulated request for a four-month suspension of his license to
practice law in Wisconsin.
Discussion and Decision
¶44 When we review a referee's report and recommendation
in an attorney disciplinary proceeding, we affirm a referee's
findings of fact unless they are found to be clearly erroneous,
but we review the referee's conclusions of law on a de novo
23
No. 2012AP484-D
basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI
126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the
appropriate level of discipline given the particular facts of
each case, independent of the referee's recommendation, but
benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶45 In light of Attorney Bryant's stipulation, we accept
the referee's findings of fact based on the OLR's complaint. We
further agree with the referee that those findings support the
legal conclusion that Attorney Bryant committed the ethical
violations alleged in each of the 15 counts of the OLR's
complaint.
¶46 Turning to the issue of sanction, we determine that a
four-month suspension is an appropriate level of discipline to
impose in light of the facts of this case. Given the presence
of prior discipline, the number of counts of misconduct, the
number of clients impacted by the misconduct, and the
seriousness of the misconduct, a suspension is clearly required.
Recognizing that each case is unique in its facts, a four-month
suspension here is supported by the cases cited by the OLR in
its sanction memorandum to the referee. See In re Disciplinary
Proceedings Against Hammis, 2011 WI 3, 331 Wis. 2d 19, 793
N.W.2d 884; In re Disciplinary Proceedings Against Goldstein,
2004 WI 87, 273 Wis. 2d 517, 681 N.W.2d 891.
¶47 We also agree with the referee that Attorney Bryant
should be ordered to pay restitution to V.F. and J.R. in the
24
No. 2012AP484-D
amount of $1,500. Attorney Bryant has explicitly agreed that
restitution in this amount is "due and owing."
¶48 We differ from the referee, however, with respect to
her recommendation regarding the imposition of conditions on
Attorney Bryant's reinstatement. We share the referee's concern
that something appears to have changed in Attorney Bryant's
practice of law that led him into running afoul of the Rules of
Professional Conduct after years of properly practicing law. We
were particularly concerned by the letter submitted by Attorney
Bryant's health care provider which stated that in 2012 Attorney
Bryant was incapable of participating in disciplinary
proceedings or even responding to OLR's investigatory requests.
Attorney Bryant through his counsel, however, has stated that
his health has improved. The OLR, which has been continuing to
deal with Attorney Bryant in another pending proceeding, has not
advised this court that his health problems are still rendering
him unable to make reasoned decisions or otherwise act with the
judgment required of an attorney. Moreover, we note that
Attorney Bryant has sought treatment for the problems that have
afflicted him.
¶49 For all of these reasons, we do not think it necessary
to require Attorney Bryant to submit to an extended monitoring
program administered by WisLAP. In order to ensure that
Attorney Bryant's health will be in a sufficient condition to
allow him to resume the practice of law, however, we conclude
that the reinstatement of his license to practice law in this
state following his four-month suspension should be conditioned
25
No. 2012AP484-D
upon him obtaining a satisfactory mental health evaluation and
providing that evaluation to the OLR. In order to be
satisfactory, the evaluator must render an opinion, to a
reasonable degree of professional certainty, that Attorney
Bryant is presently capable of discharging the duties of a
person licensed to practice law in this state. We further
conclude that as an additional condition of reinstatement,
Attorney Bryant must execute medical releases that authorize the
OLR for a period of three years to review his medical and mental
health records and to speak with his medical or mental health
care providers. Once Attorney Bryant has complied with these
conditions and the other conditions that are always required for
reinstatement after a disciplinary suspension of less than six
months, his license to practice law in this state can be
reinstated.
¶50 Finally, we turn to the issue of the costs of this
proceeding. Attorney Bryant has not objected to the statement
of costs submitted by the OLR. Because there are no factors
present in this case that would lead us to deviate from our
general policy of imposing all costs on an attorney who has been
found to have committed professional misconduct, we require
Attorney Bryant to pay the full costs of this proceeding.
¶51 IT IS ORDERED that the license of Andrew J. Bryant to
practice law in Wisconsin is suspended for a period of four
months, effective the date of this order.
¶52 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin,
26
No. 2012AP484-D
Andrew J. Bryant shall take the following actions: (1) obtain a
satisfactory mental health evaluation, at his own expense, in
which the evaluator states, to a reasonable degree of
professional certainty, that Andrew J. Bryant is presently
capable of discharging the duties of a person licensed to
practice law in this state; (2) provide a copy of that
evaluation to the Office of Lawyer Regulation; and (3) execute
medical record releases that authorize the Office of Lawyer
Regulation for a period of three years to review his medical and
mental health records and to speak with medical or mental health
care providers.
¶53 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Andrew J. Bryant shall pay restitution in the
amount of $1,500 to V.F. and J.R.
¶54 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Andrew J. Bryant shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶55 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶56 IT IS FURTHER ORDERED that Andrew J. Bryant shall
continue compliance with the provisions of SCR 22.26 concerning
the duties of a person whose license to practice law in
Wisconsin has been suspended.
¶57 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
27
No. 2012AP484-D
28
No. 2012AP484-D.pdr
¶58 PATIENCE DRAKE ROGGENSACK, J. (concurring). While I
concur in the court's decision, I write separately because
I would not require as a condition of reinstatement that
Attorney Bryant execute medical releases that authorize the OLR
for a period of three years to review his medical, including
mental health, records or to speak with his medical or mental
health care providers.
1
No. 2012AP484-D.pdr
1