Office of Lawyer Regulation v. Robert J. Baratki , 378 Wis. 2d 1 ( 2017 )

2017 WI 89SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1877-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Robert J. Baratki, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Robert J. Baratki,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BARATKI
OPINION FILED: October 3, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 89NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1877-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Robert J. Baratki, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, OCT 3, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Robert J. Baratki,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee James J. Winiarski's
recommendation that the court declare Attorney Robert J. Baratki
in default and suspend his Wisconsin law license for a period of
60 days for his misconduct in two client matters, his appearance
in numerous client matters while his license to practice law was
suspended, and his non-cooperation with the Office of Lawyer
Regulation's (OLR) investigation into his conduct. The referee
also recommended that Attorney Baratki be required to make
restitution to a former client in the amount of $487.50, and to
No. 2016AP1877-D
pay the full costs of this proceeding, which total $1,428.93 as
of June 13, 2017.
¶2 Because no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Baratki's failure to
answer the complaint filed by the OLR, the OLR is entitled to a
default judgment. However, we disagree with the referee that
Attorney Baratki's professional misconduct warrants only a 60-
day suspension. We conclude, instead, that a six-month
suspension is warranted. We agree with the referee that
Attorney Baratki should be ordered to pay the full costs of the
proceeding, as well $487.50 in restitution.
¶3 Attorney Baratki was admitted to practice law in
Wisconsin in 1990. He has twice been privately reprimanded. In
2006, he was privately reprimanded for engaging in a consensual
sexual relationship with his client when he did not have such a
relationship with the client prior to the establishment of their
attorney-client relationship, in violation of former
SCR 20:1.8(k)(2). See Private Reprimand No. 2006-20 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/001926.html). In 2014,
he was privately reprimanded for: (1) transmitting a letter to
opposing counsel at a time his license was suspended for
noncompliance with mandatory continuing legal education (CLE)
requirements, in violation of SCR 20:8.4(f); and (2) acting on
behalf of clients, including appearances in court, during a
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No. 2016AP1877-D
period when his license was suspended for noncompliance with CLE
requirements, in violation of SCR 31.10(1), enforced via SCR
20:8.4(f). See Private Reprimand No. 2014-4 (electronic copy
available at
https://compendium.wicourts.gov/app/raw/002644.html).
¶4 Attorney Baratki's law license is currently subject to
administrative and temporary suspensions. It is
administratively suspended for failure to comply with mandatory
CLE reporting requirements. It is temporarily suspended due to
his willful failure to cooperate with OLR investigations into
his conduct. See Office of Lawyer Regulation v. Baratki,
2016XX1482-D and 2016XX1830-D, unpublished orders (S. Ct.
December 14, 2016 and February 13, 2017, respectively).
¶5 On September 28, 2016, the OLR filed the current
complaint against Attorney Baratki. The complaint alleges nine
counts of professional wrongdoing, divided into three categories
of misconduct. The following facts are taken from the OLR's
complaint.
Client K.D. (Counts 1-4)
¶6 In February 2014, K.D. retained Attorney Baratki to
represent her in a divorce proceeding.
¶7 Beginning in April 2014, Attorney Baratki began
sending flirtatious, and sometimes sexual, text messages to K.D.
In April 2014, Attorney Baratki sent K.D. a text message that
read, "I forgot to tell you yesterday your top was really
pretty," and, "You[] are so bad." When K.D. responded, "I think
it is your imagination," Attorney Baratki replied, "Nope, it was
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No. 2016AP1877-D
you and your abs." In May 2014, Attorney Baratki texted K.D. to
suggest that she "could stop over for a 10 or 15 minute pawing
before [K.D.'s daughter] stops over." Attorney Baratki later
texted such appeals as, "Are you ignoring me?" and, "You don't
love me anymore." Attorney Baratki also bragged to K.D. about
how many women he had been with, suggested that she should
"date," and forecasted her sexual predilections. In one of his
meetings with K.D., Attorney Baratki lifted her shirt and kissed
her abdominal area.
¶8 In December 2014, K.D. retained new counsel and
Attorney Baratki's flirtatious communications ended.
¶9 In July 2015, the OLR sent Attorney Baratki notice of
a formal investigation asking him to respond to a grievance
filed by K.D. The OLR requested copies of all of his
communications with K.D., as well as a complete copy of his
file. Although Attorney Baratki provided a response to the
OLR's investigative request, he did not provide the OLR with
copies of his communications with K.D., or a complete copy of
his file. After another written request from the OLR for a copy
of these documents, Attorney Baratki provided what he claimed
was a copy of all text messages pertaining to K.D.'s grievance.
This claim was not true; Attorney Baratki omitted several text
exchanges. When the OLR wrote to Attorney Baratki requesting
copies of the omitted text messages, he failed to respond. When
the OLR wrote to Attorney Baratki requesting a response to
K.D.'s allegation that he had lifted her shirt and kissed her
abdominal area, he failed to respond.
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¶10 Based on the course of conduct described above, the
OLR alleged in its complaint that Attorney Baratki represented
K.D. despite a significant risk that his representation would be
materially limited by his personal interest, in violation of
SCR 20:1.7(a)(2)1 (Count 1); engaged in harassment on the basis
of sex, in violation of SCR 20:8.4(i)2 (Count 2); violated that
portion of the attorney's oath which requires abstention from
all offensive personality, in violation of SCR 20:8.4(g)3 and
SCR 40.154 (Count 3); and failed to timely provide relevant
information during the course of the OLR's investigation, in
violation of SCR 22.03(2) and SCR 22.03(6),5 enforced through SCR
20:8.4(h)6 (Count 4).
1
SCR 20:1.7(a)(2) provides:
(a) 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:
(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.
2
SCR 20:8.4(i) provides: "It is professional misconduct
for a lawyer to harass a person on the basis of sex, . . .."
3
SCR 20:8.4(g) provides: "It is professional misconduct
for a lawyer to violate the attorney's oath."
4
SCR 40.15, the attorney's oath, provides in part: "I will
abstain from all offensive personality . . .."
5
SCR 22.03(2) and (6) provides:
(continued)
5
No. 2016AP1877-D
Client T.T. (Counts 5-6)
¶11 In June 2013, T.T. retained Attorney Baratki to
represent her in a divorce proceeding. Attorney Baratki failed
to appear at a March 17, 2015 scheduling conference. On March
31, 2015, Attorney Baratki informed the circuit court that he no
longer represented T.T. Attorney Baratki did not file a notice
of withdrawal, did not request permission from the court to
withdraw, and did not give T.T. reasonable notice or the
opportunity to obtain substitute counsel. Following his
(2) Upon commencing an investigation, the
director shall notify the respondent of the matter
being investigated unless in the opinion of the
director the investigation of the matter requires
otherwise. The respondent shall fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct within 20 days after being served
by ordinary mail request for a written response. The
director may allow additional time to respond.
Following receipt of the response, the director may
conduct further investigation and may compel the
respondent to answer questions, furnish documents, and
present any information deemed relevant to the
investigation.
(6) In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
6
SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(6), or
SCR 22.04(1)."
6
No. 2016AP1877-D
withdrawal, Attorney Baratki did not provide T.T. with an
accounting of his time or the services provided.
¶12 After T.T. filed a grievance with the OLR, Attorney
Baratki provided the OLR with an accounting showing a balance
due to T.T. in the amount of $487.50, which remains unpaid.
¶13 Based on the course of conduct described above, the
OLR alleged in its complaint that Attorney Baratki failed to act
with reasonable diligence and promptness in representing T.T.,
in violation of SCR 20:1.37 (Count 5); and failed to take proper
steps upon termination of the representation to protect T.T.'s
interests, in violation of SCR 20:1.16(d)8 (Count 6).
Practicing While Suspended (Counts 7-9)
¶14 On September 30, 2015, the State Bar of Wisconsin sent
Attorney Baratki a certified letter advising him that if he
failed to pay his fiscal 2016 State Bar dues, as well as sign a
trust account certification, by 5:00 p.m. on October 31, 2015,
he would be suspended from the practice of law. Attorney
Baratki personally signed the receipt for the certified letter.
Attorney Baratki failed to pay his bar dues or sign the trust
account certification by the October 31, 2015 deadline.
7
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
8
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
. . . refunding any advance payment of fee or expense that has
not been earned or incurred."
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No. 2016AP1877-D
¶15 On November 2, 2015, Attorney Baratki sent the State
Bar a check for the dues owed, as well as for a late fee and a
reinstatement fee. The State Bar received the check on November
5, 2015. However, Attorney Baratki failed to submit a signed
trust account certification to the State Bar.
¶16 On November 6, 2015, the State Bar advised Attorney
Baratki that his law license had been suspended, effective
October 31, 2015, for "failure to pay State Bar dues and Supreme
Court Board assessments as well as failure to comply with trust
account certification requirements."
¶17 Over the next several weeks, while his license to
practice law was suspended, Attorney Baratki either appeared in
court or filed documents in 15 case matters. Attorney Baratki
also met with a number of his clients while his law license was
suspended.
¶18 After receiving a letter from the State Bar on
November 23, 2015, regarding his suspension, Attorney Baratki
contacted the State Bar and was told that he had failed to
submit a signed trust account certification. Attorney Baratki
faxed a signed certification to the State Bar, and the State Bar
reinstated his license on November 24, 2015.
¶19 On December 3, 2015, the OLR sent a notice of
investigation to Attorney Baratki, requesting a response.
Attorney Baratki failed to respond.
¶20 Attorney Baratki later telephoned the OLR to request a
response extension through February 12, 2016. He failed to
respond by that deadline.
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No. 2016AP1877-D
¶21 Attorney Baratki eventually submitted a response to
the OLR on March 31, 2016, after this court issued an order to
show cause why his license should not be suspended due to his
failure to cooperate with the OLR's investigation.
¶22 Based on the course of conduct described above, the
OLR alleged in its complaint that Attorney Baratki failed to
comply with the trust account certification requirement, in
violation of former SCR 20:1.15(i)(l)9 (Count 7); engaged in the
practice of law while his law license was suspended, in
violation of SCR 22.26(2),10 enforceable via SCR 20:8.4(f)11
9
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(i)(1) provided:
A member of the state bar of Wisconsin shall file
with the state bar of Wisconsin annually, with payment
of the member's state bar dues or upon any other date
approved by the supreme court, a certificate stating
whether the member is engaged in the practice of law.
If the member is practicing law, the member shall
state the account number of any trust account, and the
name of each financial institution in which the member
maintains the trust account . . ..
10
SCR 22.26(2) provides:
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
(continued)
9
No. 2016AP1877-D
(Count 8); and failed to timely provide information during the
course of the OLR's investigation, in violation of SCR 22.03(2),
enforceable via SCR 20:8.4(h) (Count 9).
Default Proceedings
¶23 According to the OLR's motion for default, to which
Attorney Baratki did not respond, the OLR made multiple attempts
to serve Attorney Baratki with the complaint and an order to
answer. On three occasions in November 2016, a process server
retained by the OLR attempted, unsuccessfully, to personally
serve Attorney Baratki with the complaint and order to answer at
his address on file with the State Bar. In December 2016, the
OLR mailed the complaint and order to answer to Attorney
Baratki's address on file with the State Bar, via certified
mail.
¶24 Attorney Baratki failed to file an answer. In January
2017, the OLR filed a default motion.
¶25 According to the referee's report, after the OLR filed
the default motion, the OLR's counsel was contacted by a lawyer
who stated that Attorney Baratki might retain him in this
matter. This possibility did not come to pass, however, and
Attorney Baratki remained unrepresented.
commercial employer itself not engaged in the practice
of law.
11
SCR 20:8.4(f) provides: "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."
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No. 2016AP1877-D
¶26 The referee noticed and held a hearing on the OLR's
default motion. Attorney Baratki failed to appear for the
hearing.
¶27 The referee issued an order recommending that this
court grant the OLR's default motion. Noting that Attorney
Baratki had contacted a lawyer about the possibility (never
realized) of representing him in this case, the referee found
that Attorney Baratki was aware of the OLR's complaint and had
chosen not to answer it.
¶28 The referee subsequently filed a report finding the
facts as alleged in the OLR's complaint and concluding that
Attorney Baratki had committed each of the nine alleged counts
of misconduct. Based on the conclusions of misconduct, the
referee recommended that Attorney Baratki's law license be
suspended for 60 days. The referee also recommended that
Attorney Baratki be ordered to pay the full costs of this
matter, as well as restitution to T.T. in the amount of $487.50.
¶29 Attorney Baratki did not appeal from the referee's
report and recommendation. Thus, we proceed with our review of
the matter pursuant to SCR 22.17(2). We review a referee's
findings of fact subject to the clearly erroneous standard. See
In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the appropriate
level of discipline independent of the referee's recommendation.
See In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
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No. 2016AP1877-D
¶30 We agree with the referee that Attorney Baratki should
be declared in default. Although the OLR made reasonably
diligent attempts to serve him, and although Attorney Baratki
had sufficient notice of this matter to contact a lawyer about
the possibility (never realized) of representing him, Attorney
Baratki failed to appear or present a defense. Accordingly, we
deem it appropriate to declare him in default. We also accept
the referee's findings of fact based on the allegations of the
complaint, and agree with the referee that those findings
support a determination of misconduct on the nine counts alleged
in the OLR's complaint.
¶31 However, we disagree with the referee's recommendation
that this court impose a 60-day license suspension. This
recommended sanction is too light.
¶32 Attorney Baratki's first category of misconduct——his
inappropriate statements to and behavior toward K.D.——by itself
justifies a suspension longer than 60 days. In In re
Disciplinary Proceedings Against Kratz, 2014 WI 31, 353
Wis. 2d 696, 851 N.W.2d 219, we suspended a prosecutor, with no
previous disciplinary history, for four months for sending
unsolicited, sexually suggestive text messages to a domestic
abuse crime victim, as well as for making sexually suggestive
statements to two social workers before or during court
proceedings. To be sure, Kratz does not exactly match the facts
of this case——the respondent lawyer's conduct in Kratz was in
some ways less severe, and in some ways more severe, than
Attorney Baratki's conduct. There were no allegations in Kratz
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No. 2016AP1877-D
that the respondent lawyer engaged in improper physical contact;
Attorney Baratki undisputedly did so, lifting K.D.'s shirt and
kissing her abdominal area during a meeting. The respondent
lawyer in Kratz made inappropriate statements to multiple women;
Attorney Baratki affronted one woman. Kratz involved a lawyer's
attempts to become sexually involved with an especially
vulnerable person——a domestic abuse crime victim whose abuser he
was prosecuting; this case involves Attorney Baratki's attempts
to become sexually involved with a client. These differences
notwithstanding, Kratz strongly suggests that Attorney Baratki's
efforts to leverage his position of trust for personal
gratification deserves more than the 60-day minimum12 suspension.
See Kratz, 353 Wis. 2d 696, ¶47 (imposing four-month suspension
for the respondent lawyer's "crass placement of his personal
interests above those of his client"); see also In re
Disciplinary Proceedings Against Gibson, 124 Wis. 2d 466, 475,
369 N.W.2d 695 (1985)(imposing a ninety-day suspension on an
attorney who made unsolicited sexual advances to a client;
noting that such actions constitute "egregious conduct" that
"perverts the very essence of the lawyer-client relationship").
¶33 There are additional matters to consider in this case.
To Attorney Baratki's first category of misconduct we add his
violation of professional rules governing an attorney's
12
See In re Disciplinary Proceedings Against Grady, 188
Wis. 2d 98, 108-09, 523 N.W.2d 564 (1994) (explaining that
generally the minimum length of a license suspension is 60
days).
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No. 2016AP1877-D
withdrawal from representation, his appearance in numerous
client matters while his law license was suspended, and his non-
cooperation with the OLR's investigation into his conduct. We
also consider his previous disciplinary matters, in which he
failed to set appropriate boundaries with a client (as he did
here) and practiced law during a license suspension (as he also
did here). See Private Reprimand 2006-20, (electronic copy
available at
https://compendium.wicourts.gov/app/raw/001926.html); Private
Reprimand 2014-4, (electronic copy available at
https://compendium.wicourts.gov/app/raw/002644.html). We agree
with the referee's observation that Attorney Baratki "apparently
did not learn from either of his prior private reprimands."
¶34 Taken together, Attorney Baratki's serious and
troublingly familiar misconduct renders a 60-day suspension an
insufficient response. He abused his position of trust as a
lawyer (again), practiced law during a suspension (again),
violated the duties attendant to withdrawing from representation
of a client, and disregarded his obligation to cooperate with
the OLR. Given his course of conduct, we deem it imperative
that, to resume the practice of law in Wisconsin, Attorney
Baratki show this court that he has taken steps to avoid similar
misdeeds in the future. We therefore impose a six-month
suspension of Attorney Baratki's Wisconsin law license. See
SCR 22.28(3). We note, too, that this particular length of
suspension is consistent with our disciplinary precedent. See,
e.g., In re Disciplinary Proceedings Against Ridgeway, 158
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No. 2016AP1877-D
Wis. 2d 452, 462 N.W.2d 671 (1990) (assistant state public
defender suspended for six months for having sexual contact with
his client and providing her with beer in violation of her
probation terms).
¶35 We turn next to the issue of costs. Our general
practice is to impose full costs on attorneys who are found to
have committed misconduct. See SCR 22.24(1m). There is no
reason to depart from that practice here. We therefore impose
full costs.
¶36 Finally, we turn to the issue of restitution. We
agree with the referee that Attorney Baratki should be ordered
to pay restitution to T.T. in the amount of $487.50.
¶37 IT IS ORDERED that the license of Robert J. Baratki to
practice law in Wisconsin is suspended for a period of six
months, effective November 14, 2017.
¶38 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Robert J. Baratki shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$1,428.93.
¶39 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Robert J. Baratki shall make restitution in the
amount of $487.50 to T.T.
¶40 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
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No. 2016AP1877-D
¶41 IT IS FURTHER ORDERED that Robert J. Baratki shall
comply with the provisions of SCR 22.26 concerning the duties of
an attorney whose license to practice law has been suspended.
¶42 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.29(4)(c).13
13
In addition to obtaining reinstatement from the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Baratki will be required
to demonstrate that the grounds for any existing administrative
and temporary suspensions have been resolved. See ¶4, supra.
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No. 2016AP1877-D
1