Office of Lawyer Regulation v. Joan M. Boyd , 345 Wis. 2d 636 ( 2013 )

2013 WI 20SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1977-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Joan M. Boyd, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Joan M. Boyd,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BOYD
OPINION FILED: February 21, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 20NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1977-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Joan M. Boyd, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
FEB. 21, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Joan M. Boyd,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney Joan M. Boyd has filed a
petition for the consensual revocation of her license to
practice law in Wisconsin pursuant to SCR 22.19.1 Attorney
1
SCR 22.19 provides as follows:
(1) An attorney who is the subject of an
investigation for possible misconduct or the
respondent in a proceeding may file with the supreme
No. 2012AP1977-D
Boyd's petition states that she cannot successfully defend
against 28 counts of professional misconduct in eight grievance
investigations for which the Preliminary Review Committee (PRC)
of the Office of Lawyer Regulation (OLR) has found cause to
proceed, as well as multiple additional allegations of
misconduct in connection with seven more grievances that have
court a petition for the revocation by consent or 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.
2
No. 2012AP1977-D
not yet been fully investigated by the OLR or brought to the PRC
for its consideration.
¶2 Attorney Boyd was admitted to the practice of law in
Wisconsin in May 1989. She previously practiced in Shawano and
currently resides in Gillett.
¶3 Attorney Boyd has a lengthy disciplinary history, and
her license to practice law in this state is currently
suspended. Her prior disciplinary matters can be summarized as
follows:
• In 2000 Attorney Boyd received a consensual
public reprimand for forging her clients'
endorsements on the back of a check that was
issued by a bankruptcy trustee to the clients and
for arranging for the check to be deposited into
her checking account. She also misrepresented to
the bankruptcy trustee's staff that the clients
had endorsed the back of the check. Public
Reprimand of Joan M. Boyd, No. 2000-04.
• In 2006 this court publicly reprimanded Attorney
Boyd for failing to deposit a fee into her client
trust account, commingling personal and client
funds in her trust account, failing to provide
the legal skill or preparation reasonably
necessary to handle a federal civil rights claim,
and charging a client an unreasonable fee. In re
Disciplinary Proceedings Against Boyd, 2006 WI
28, 289 Wis. 2d 351, 711 N.W.2d 268.
• In 2008 this court suspended Attorney Boyd's
license for five months for five counts of
professional misconduct in three client matters.
In each representation, she failed to provide
competent representation. She also failed to act
with reasonable diligence and made a
misrepresentation to one of the clients. In re
Disciplinary Proceedings Against Boyd, 2008 WI
103, 314 Wis. 2d 14, 752 N.W.2d 882.
3
No. 2012AP1977-D
• In June 2009 this court suspended Attorney Boyd's
license for six months for 13 counts of
misconduct arising out of five client matters.
Her misconduct included, inter alia, failing to
provide competent representation, failing to
terminate her representation and protect her
client's interests, failing to keep her clients
reasonably informed about the status of their
matters, failing to return unearned fees, failing
to deposit a check into her client trust account,
and failing to cooperate with an OLR
investigation. In re Disciplinary Proceedings
Against Boyd, 2009 WI 59, 318 Wis. 2d 281, 767
N.W.2d 226.
• In May 2010 this court suspended Attorney Boyd's
license for an additional 12 months, to run
consecutive to her prior suspensions. The court
found that she had committed 11 counts of
professional misconduct arising out of four
client matters. The findings of misconduct
included, inter alia, failure to act with
competence, failure to act with diligence,
failure to keep her clients reasonably informed,
and charging an unreasonable fee. In re
Disciplinary Proceedings Against Boyd, 2010 WI
41, 324 Wis. 2d 688, 782 N.W.2d 718.
¶4 Attached to Attorney Boyd's petition for revocation is
a completed but unfiled disciplinary complaint and a summary of
the misconduct allegations in the seven other matters that have
not yet been fully investigated.
¶5 It is not necessary to describe the particular factual
allegations of each representation. Generally speaking, most
representations involved Attorney Boyd being retained either to
pursue postconviction relief in a criminal case or to pursue
debtor relief in a bankruptcy action. Attorney Boyd's
misconduct arose out of her actions as an attorney in those
representations.
4
No. 2012AP1977-D
¶6 Some summary information regarding the allegations in
the unfiled OLR complaint will provide a sufficient description
of the nature and scope of her professional misconduct. Three
counts in that complaint allege a failure to provide competent
representation, in violation of SCR 20:1.1.2 Four counts involve
a failure to communicate adequately with the client or to keep
the client informed of the status of the matter, in violation of
SCR 20:1.4(a) and/or (b).3 In five of the eight representations
2
SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."
3
SCRs 20:1.4(a) and (b) state: Communication.
(a) A lawyer shall:
(1) Promptly inform the client of any decision
or circumstance with respect to which the client's
informed consent, as defined in SCR 20:1.0(f), is
required by these rules;
(2) reasonably consult with the client about the
means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about
the status of the matter;
(4) promptly comply with reasonable requests by
the client for information; and
(5) consult with the client about any relevant
limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the
extent reasonably necessary to permit the client to
make informed decisions regarding the representation.
5
No. 2012AP1977-D
addressed in the unfiled complaint, the OLR alleges that
Attorney Boyd charged an unreasonable or excessive fee, in
violation of SCR 20:1.5(a).4 The unfiled complaint also contains
five counts alleging that Attorney Boyd failed to refund advance
fees that she had not earned by her work on behalf of the client
in violation of SCR 20:1.16(d).5
4
SCR 20:1.5(a) provides as follows:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results
obtained;
(5) the time limitations imposed by the client
or by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
5
SCR 20:1.16(d) states:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
6
No. 2012AP1977-D
¶7 In a number of the representations described in the
unfiled complaint, Attorney Boyd had affiliated herself with an
entity by the name of the National Legal Professional
Association6 (NLPA). Either the NLPA initially was retained by
the client and then convinced the client to hire Attorney Boyd
as local counsel, or Attorney Boyd was retained by the client
and convinced the client to retain the NLPA to do research and
prepare documents. According to the unfiled complaint, the NLPA
is an organization located in Cincinnati, Ohio, that is operated
by a permanently disbarred Ohio attorney, Hugh Wesley Robinson.
Despite Mr. Robinson's disbarred status, the NLPA apparently
promotes itself as providing legal consulting and research
assistance to lawyers throughout the United States. In several
of the matters described in the complaint, the OLR alleges that
the NLPA prepared postconviction motions or appellate documents
and then Attorney Boyd filed them under her signature. The
complaint alleges that at least some of these filings were
generic (i.e., not tailored to the particular case) and that
they were denied by the particular courts as being legally
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
6
According to the firm's web site, the correct firm name is
National Legal Professional Associates.
7
No. 2012AP1977-D
insufficient. Because neither the NLPA nor Mr. Robinson are
licensed to practice law in Wisconsin, the unfiled complaint
contains six separate counts alleging that Attorney Boyd
assisted Mr. Robinson and the NLPA to engage in the unauthorized
practice of law in this state. SCR 20:5.5(b)7 and SCRs 20:8.4(a)
and (b).8
¶8 In addition to the misconduct allegations in the OLR's
unfiled complaint, for which the PRC has found cause to proceed,
the OLR's summary of pending investigations briefly describes
seven more representations in which the OLR is investigating
additional alleged violations of the Rules of Professional
Conduct for Attorneys. Those summaries describe allegations of
professional misconduct that are similar to the allegations of
misconduct described in the unfiled complaint, including failure
7
SCR 20:5.5(b) states:
A lawyer who is not admitted to practice in this
jurisdiction shall not:
(1) except as authorized by this rule or other
law, establish an office or maintain a systematic and
continuous presence in this jurisdiction for the
practice of law; or
(2) hold out to the public or otherwise represent
that the lawyer is admitted to the practice of law in
this jurisdiction.
8
SCRs 20:8.4(a) and (b) state it is professional misconduct
for a lawyer to "(a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another"; and "(b) commit a
criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other
respects . . . ."
8
No. 2012AP1977-D
to provide competent representation, failure to communicate with
clients, charging an excessive and unreasonable fee, and failing
to refund unearned fees.
¶9 Attorney Boyd's petition for consensual revocation
states that she cannot successfully defend herself against the
allegations of professional misconduct set forth in both the
OLR's unfiled complaint and its summary of the matters still in
the investigative process. Her petition asserts that she is
seeking consensual revocation freely, voluntarily, and
knowingly. Attorney Boyd states that she understands she is
giving up her right to contest the OLR's allegations and to have
a public hearing at which she could present evidence in her
defense. She further acknowledges that she has been given the
opportunity to consult with counsel and that she has declined to
do so.
¶10 The OLR's unfiled complaint also contains a
restitution request. It states that the Wisconsin Lawyers' Fund
for Client Protection (the Fund) has paid $16,299 to four of
Attorney Boyd's former clients (W.Z., W.N., J.M., and A.L.), and
it requests that Attorney Boyd be ordered to pay restitution to
the Fund in that amount. It also requests that Attorney Boyd be
ordered to pay restitution in the amount of $7,500 to former
client E.P. Attorney Boyd's petition states that she agrees
that she should be ordered to pay these restitution amounts.
¶11 Having reviewed Attorney Boyd's petition, the OLR's
unfiled complaint, the OLR's summary of the matters still being
investigated or placed on hold, and the OLR's report and
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No. 2012AP1977-D
recommendation in support of the petition, we conclude that the
petition for consensual revocation should be granted. It is
clear from the descriptions of the various representations that
Attorney Boyd has engaged in a pattern of serious professional
misconduct that has harmed her clients and that she is currently
unwilling or unable to conform her conduct to the standards that
are required to practice law in this state.
¶12 In light of the OLR's report and Attorney Boyd's
agreement, we further determine that Attorney Boyd should be
required to pay $23,799 in restitution to the Fund and to former
client E.P.
¶13 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶14 IT IS FURTHER ORDERED that the license of Joan M. Boyd
to practice law in Wisconsin is revoked, effective the date of
this order.
¶15 IT IS FURTHER ORDERED that within 60 days of the date
of this order Joan M. Boyd shall pay restitution in the amount
of $16,299 to the Wisconsin Lawyers' Fund for Client Protection
($5,000 for former client W.Z.; $2,299 for former client W.N.;
$8,100 for former client J.M.; and $900 for former client A.L.)
and in the amount of $7,500 to former client E.P.
¶16 IT IS FURTHER ORDERED that, to the extent she has not
already done so, Joan M. Boyd 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.
10