Office of Lawyer Regulation v. Suzanne M. Smith ( 2013 )

2013 WI 98
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2946-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Suzanne M. Smith, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Suzanne M. Smith,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST SMITH
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there was a brief by Suzanne
M. Smith, Burlington.
For the Office of Lawyer Regulation, there was a brief by
Julie M. Spoke.
2013 WI 98
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2946-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Suzanne M. Smith, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
DEC 12, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Suzanne M. Smith,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Suzanne M. Smith appeals the
report of Hannah C. Dugan, referee, recommending discipline of a
six-month license suspension, the imposition of costs, and
restitution to the State Public Defender's Office (SPD) in the
amount of $112. The referee found that Attorney Smith committed
20 of the 22 charged counts of misconduct. Nine of these counts
were the subject of a stipulation entered into by the parties
No. 2011AP2946-D
and accepted by the referee shortly before the disciplinary
hearing in this matter.
¶2 We adopt both the stipulated and the non-stipulated
findings of fact and conclusions of law set forth in the
referee's report. We conclude that the referee's reasoning with
respect to discipline and restitution is persuasive.
Accordingly, this court concludes that a six-month suspension of
Attorney Smith's license to practice law in Wisconsin is an
appropriate sanction for her violations. We further agree with
the referee that Attorney Smith shall bear the costs of this
disciplinary proceeding, which are $13,959.26 as of July 9,
2013, and shall reimburse the State Public Defender's Office in
the amount of $112.
¶3 Attorney Smith was licensed to practice law in
Wisconsin in 1995 and practices in Burlington. In 2009 Attorney
Smith was publicly reprimanded for misconduct in three separate
matters. The misconduct generally consisted of failing to act
with reasonable diligence and promptness in representing a
client, failing to communicate appropriately with a client,
failing to abide by a client's decisions concerning the
objectives of representation, and failing to provide competent
representation. Public Reprimand of Suzanne M. Smith, No.
2009-17.
¶4 On December 22, 2011, the OLR filed a complaint
against Attorney Smith. The complaint, as later amended in May
2012, consisted of some 182 separately numbered paragraphs
describing 22 counts of misconduct in connection with Attorney
2
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Smith's work on four matters. The complaint sought a six-month
suspension of Attorney Smith's law license, as well as $112 in
restitution to the SPD.
¶5 Attorney Smith filed answers to the complaint and the
amended complaint in which she denied committing misconduct and
requested the dismissal of the disciplinary action.
¶6 Shortly before the scheduled hearing, Attorney Smith
entered into a partial stipulation in which she pled no contest
to nine of the 22 charged counts of misconduct. The referee
accepted the stipulation.
¶7 Following a two-day disciplinary hearing, the referee
determined that the OLR had proven misconduct in 11 of the
remaining 13 non-stipulated counts. The OLR does not appeal the
dismissal of the two counts on which the referee found no
misconduct; thus, these counts are not discussed herein.
¶8 The referee's report spans 45 single-spaced pages.
The referee concluded that the record supported a total of 20
counts of misconduct. We do not repeat all of the factual
findings and legal conclusions made by the referee, and instead
provide the following summary of the referee's report.
Mr. and Mrs. C. Matter (Counts 1 through 3)
¶9 Three counts of professional misconduct involve
Attorney Smith's representation of Mrs. C. in a divorce action
between Mr. and Mrs. C. As part of the divorce proceedings, on
November 2, 2009, Mr. C. gave Attorney Smith a check for $309.84
made payable to Attorney Smith's trust account. Also on
November 2, 2009, Attorney Smith received a federal tax refund
3
No. 2011AP2946-D
check in the amount of $1,490.16 payable jointly to Mr. and Mrs.
C. and endorsed by Mr. C. Attorney Smith was to deposit the
funds from both checks into her trust account and pay a portion
of Mr. and Mrs. C.'s 2008 real estate taxes from that account.
However, the checks remained in Attorney Smith's desk drawer for
several weeks; Attorney Smith did not deposit the $309.84 check
into her trust account until December 31, 2009, and did not
deposit the $1,490.16 check until January 19, 2010.
¶10 By April 2010 Attorney Smith still had not paid the
designated trust account funds against Mr. and Mrs. C.'s 2008
real estate taxes. On April 20, 2010, Mr. C.'s attorney wrote
to Attorney Smith to point out that the taxes remained unpaid.
Attorney Smith did not respond.
¶11 Attorney Smith did not apply the funds toward Mr. and
Mrs. C.'s 2008 real estate taxes until May 28, 2010. The delay
in paying the taxes caused the county to assess $120 in
additional interest and penalties against Mr. and Mrs. C.
¶12 Based on these facts, the referee determined that the
following misconduct occurred:
• By failing to promptly deposit in her trust account the
check from Mr. C. and the federal tax refund check
payable jointly to Mr. and Mrs. C., Attorney Smith
violated SCR 20:1.15(b)(1).1
1
SCR 20:1.15(b)(l) provides as follows: Separate account.
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of
4
No. 2011AP2946-D
• By failing to promptly apply the funds at issue toward
the 2008 property taxes owed by Mr. and Mrs. C., Attorney
Smith violated SCR 20:1.15(d)(l).2
• By ignoring the inquiry from Mr. C.'s attorney as to the
status of the trust account funds and by failing to
render any written accounting of the trust property when
she distributed the funds to the county treasurer,
Attorney Smith violated SCR 20:1.15(d)(2).3
T.H. Matter (Counts 4, 5, 6, and 8)4
¶13 In August 2008 T.H. retained Attorney Smith to
represent her in a post-adjudication matter in a paternity case.
During the course of this representation, Attorney Smith did not
clients and 3rd parties paid to a lawyer or law firm
in connection with a representation shall be deposited
in one or more identifiable trust accounts.
2
SCR 20:1.15(d)(l) provides: Notice and disbursement.
Upon receiving funds or other property in which a
client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
contract, the lawyer shall promptly notify the client
or 3rd party in writing. Except as stated in this rule
or otherwise permitted by law or by agreement with the
client, the lawyer shall promptly deliver to the
client or 3rd party any funds or other property that
the client or 3rd party is entitled to receive.
3
SCR 20:1.15(d)(2) provides: "Upon final distribution of
any trust property or upon request by the client or a 3rd party
having an ownership interest in the property, the lawyer shall
promptly render a full written accounting regarding the
property."
4
The referee dismissed Counts 7 and 9——an outcome the OLR
does not appeal.
5
No. 2011AP2946-D
timely respond to T.H.'s multiple requests for a bill. Attorney
Smith also did not timely comply with the circuit court's
instruction to prepare a final order reflecting the parties'
eventual stipulation on all issues. T.H. informed Attorney
Smith that due to Attorney Smith's delay in preparing a final
order, T.H. was unable to prove her daughter's father's
violations of certain terms of the custodial arrangement for her
daughter. T.H. also asked Attorney Smith to send her a copy of
the parties' signed stipulation; Attorney Smith never did so.
When Attorney Smith eventually prepared a final bill for her
work on T.H.'s case, the bill included an entry for attending
and traveling to and from a circuit court hearing that Attorney
Smith did not attend.
¶14 Based on these facts, the referee determined that the
following misconduct occurred:
• By failing to timely prepare a final order implementing a
stipulation of the parties, Attorney Smith violated SCR
20:1.3.5
• By failing to timely provide her client with a copy of
the stipulation signed by the parties as her client
requested, Attorney Smith violated SCR 20:1.4(a)(4).6
5
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
6
SCR 20:1.4(a)(4) states that a lawyer shall "promptly
comply with reasonable requests by the client for
information; . . . ."
6
No. 2011AP2946-D
• By failing to timely provide her client with a copy of
her bill for legal services despite repeated requests by
her client, Attorney Smith violated SCR 20:1.5(b)(3).7
• By billing her client for an appearance and travel to and
from a circuit court hearing that Attorney Smith did not
attend, and by failing to timely correct her billing,
Attorney Smith violated SCR 20:1.5(a).8
7
SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
8
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.
7
No. 2011AP2946-D
M.T. Matter (Counts 10 through 17)
¶15 In July 2009 the SPD appointed Attorney Smith to
represent M.T. regarding the possible revocation of M.T.'s
extended supervision. Attorney Smith represented M.T. at a
hearing at which M.T. stipulated to having engaged in conduct
that violated the rules of his extended supervision. On
September 30, 2009, the Administrative Law Judge (ALJ) issued a
decision revoking M.T.'s extended supervision and returning him
to prison for the remaining time available on his sentence. The
ALJ's decision included information related to challenging the
decision, first by an administrative appeal to be filed on or
before October 15, 2009, with subsequent judicial review
available by a writ of certiorari to be commenced within 45 days
of the subsequent decision.
¶16 On October 15, 2009, Attorney Smith faxed, as an
administrative appeal of the revocation decision, a one-and-a-
half page letter to the Administrator of the Division of
Hearings and Appeals. Attorney Smith did not append supporting
materials.
¶17 On October 22, 2009, the Administrator of the Division
of Hearings and Appeals issued an appeal decision that sustained
the original decision and order of the ALJ. The decision
included notice that to appeal the decision, a writ of
certiorari action had to be commenced within 45 days. Attorney
Smith agreed to seek a writ of certiorari on M.T.'s behalf.
¶18 Attorney Smith failed to file a petition for writ of
certiorari on M.T.'s behalf before the December 7, 2009
8
No. 2011AP2946-D
deadline. When the SPD's office, after receiving a complaint
from M.T., inquired with Attorney Smith about the status of the
case, Attorney Smith blamed her delay in filing the petition on
the fact that she had previously been unaware of where M.T. was
housed within the correctional system.
¶19 Attorney Smith did not file the certiorari petition
until July 22, 2010——well past the filing deadline. Attorney
Smith failed to include certain necessary items with her filing,
including a copy of the decision being challenged and either a
filing fee payment or a signed prisoner's petition and affidavit
of indigency. The office of the clerk of circuit court notified
Attorney Smith of the deficiencies of her filing. Attorney
Smith promised to provide the missing documentation, but never
did so. Despite the deficiencies in her filing, Attorney Smith
reported to M.T. that the writ had been filed.
¶20 In June 2011 Attorney Smith filed on M.T.'s behalf a
Wis. Stat. § 974.06 motion to modify M.T.'s sentence. The
motion did not include any statement of the relief requested.
Although the motion stated that Attorney Smith would submit a
brief explaining the grounds for the motion, Attorney Smith did
not submit a brief. At a hearing on the motion, Attorney Smith
told the circuit court that after she had filed the motion, the
applicable law changed such that she needed to amend her motion.
The circuit court ordered Attorney Smith to file an amended
motion and a supporting brief, plus any necessary supporting
affidavits. Although Attorney Smith advised the court she
9
No. 2011AP2946-D
expected to file the motion and brief within ten days, she
failed to file an amended motion and brief.
¶21 Attorney Smith also failed to appear at the subsequent
hearing scheduled to address the merits of the § 974.06 motion.
On the morning of the hearing, Attorney Smith sent a text
message to M.T.'s wife stating that she was sick and would have
to reschedule the hearing. In response texts, M.T.'s wife urged
Attorney Smith to attend the hearing. M.T.'s wife also asked
whether Attorney Smith would notify the circuit court of her
need to reschedule the hearing, and whether Attorney Smith
thought M.T. would be allowed to speak at the hearing. Attorney
Smith did not reply to these inquiries.
¶22 The hearing proceeded without Attorney Smith. The
circuit court dismissed Attorney Smith's motion for sentence
modification without prejudice because it failed to set forth
the specific relief requested and failed to substantively
discuss the applicable law. The circuit court gave Attorney
Smith ten days to file a motion for reconsideration of the
denial of the motion. Attorney Smith failed to file a motion
for reconsideration.
¶23 Throughout her representation of M.T., Attorney Smith
failed to respond to numerous inquiries from M.T. and his wife,
made directly or relayed by the SPD's office, including requests
to provide M.T. with a copy of the certiorari filing.
¶24 Attorney Smith also made various misrepresentations
regarding the status of her work and the reasons for her delay
in completing the work. She falsely told M.T. that from March
10
No. 2011AP2946-D
to May 2010, she had been too ill to file pleadings on his
behalf. Attorney Smith appeared in court on behalf of numerous
other clients during this time period, thereby disproving her
representation that she was too ill to file pleadings. Attorney
Smith also falsely told the office of the clerk of circuit court
that she was in possession of the documents necessary to
complete the deficient certiorari filing of July 22, 2010.
¶25 Attorney Smith also showed an inadequate level of
cooperation and honesty during the OLR's investigation of her
representation of M.T. During the OLR investigation, Attorney
Smith failed to answer questions and furnish documents and
information requested by the OLR, misrepresented to the OLR that
she was unable to file the certiorari petition from March to May
2010 due to illness, and misrepresented to the OLR that certain
documents she provided to the OLR had been ready to file in
March 2010.
¶26 Based on these facts, the referee determined that the
following misconduct occurred:
• By not being able to locate M.T. within the correctional
system prior to December 2009, by not filing a petition
for writ of certiorari in proper form with the
documentation required by statute, and by filing a motion
for sentence modification under Wis. Stat. § 974.06 so
11
No. 2011AP2946-D
deficient that the court summarily dismissed it, Attorney
Smith violated SCR 20:1.1.9
• By failing to file a timely petition for writ of
certiorari; by failing to seek relief for her client from
the filing deadline for a writ of certiorari; by failing
to follow up on reminders from the office of the circuit
court clerk concerning missing documents needed to
complete her certiorari petition filing; by failing to
promptly file and diligently pursue her motion to modify
M.T.'s sentence, despite being given an extended
opportunity to file an adequate amended motion, a brief,
and supporting affidavits; and by generally neglecting
her representation of M.T., Attorney Smith violated
SCR 20:1.3.10
• By repeatedly failing to adequately communicate with
M.T., Attorney Smith violated SCRs 20:1.4(a)(3) and (4).11
• By failing to promptly explain the reasons she did not
file a timely or proper petition for writ of certiorari,
thereby preventing M.T. from making informed decisions
9
SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
10
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
11
SCRs 20:1.4(a)(3) and (4) state that a lawyer shall "(3)
keep the client reasonably informed about the status of the
matter;" and "(4) promptly comply with reasonable requests by
the client for information; . . . ."
12
No. 2011AP2946-D
about the forms of relief available to him or his right
to seek other representation, Attorney Smith violated
SCR 20:1.4(b).12
• By failing to comply with the circuit court order to file
an amended motion for sentence modification and
supporting brief, Attorney Smith violated SCR 20:3.4(c).13
• By making misrepresentations to M.T., M.T.'s wife, and
the staff of the SPD that a petition for writ of
certiorari had been filed on behalf of M.T., when
Attorney Smith knew the only filing she ever made was
untimely, incomplete, and unacceptable; by falsely
telling M.T. that from March to May 2010, she had been
too ill to file pleadings that she falsely represented
were ready to file; by representing to the office of the
clerk of circuit court that she was in possession of
papers necessary to complete her deficient certiorari
filing; and by generally exhibiting a pattern of
dishonesty, deceit or misrepresentation throughout her
12
SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
13
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; . . . ."
13
No. 2011AP2946-D
representation of M.T., Attorney Smith violated
SCR 20:8.4(c).14
• By failing to answer questions and furnish documents and
information requested by the OLR in the course of its
investigation and by failing to respond to an OLR letter
requesting a response to a supplemental grievance filed
by M.T., Attorney Smith violated SCR 22.03(2),15
SCR 22.03(6),16 and SCR 20:8.4(h).17
14
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
15
SCR 22.03(2) provides:
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 a
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.
16
SCR 22.03(6) provides: "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."
17
SCR 20:8.4(h) says 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(2), SCR 22.03(6), or
SCR 22.04(1); . . . ."
14
No. 2011AP2946-D
• By misrepresenting to the OLR that she was unable to file
a petition for writ of certiorari for M.T. from March to
May 2010 due to illness, and by falsely representing that
the petition documents she provided to the OLR had been
ready to file in March 2010, Attorney Smith violated
SCR 22.03(6) and SCR 20:8.4(h).
D.D. Matter (Counts 18 through 22)
¶27 In 2008 the SPD appointed Attorney Smith to represent
D.D. with respect to appellate and postconviction matters in
three cases involving felony operating while intoxicated charges
in Milwaukee County. D.D. pled guilty in each case.
¶28 Prior to Attorney Smith's representation of D.D., the
court of appeals had granted D.D.'s pro se request for an
extension of time to file a notice of intent to pursue
postconviction relief in all three cases. Attorney Smith began
her representation of D.D. after the expiration of that
deadline.
¶29 Over the next eight months, Attorney Smith made little
effort to pursue substantive relief on D.D.'s behalf. However,
she deliberately gave D.D. the impression that she had filed or
would file pleadings on his behalf. She failed to keep D.D.
adequately informed about the status of his matters, including
explaining failures to file and delays on her part. Attorney
Smith also made false claims to the circuit court that she had
previously prepared and submitted motions on D.D.'s behalf.
¶30 Attorney Smith's time slips to the SPD for her work on
D.D.'s case include entries for "Draft motion to modify
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No. 2011AP2946-D
sentence" and "Finalize motion and file." However, Attorney
Smith never filed a motion to modify sentence with the circuit
court during the time period covered by the time slips in
question. Attorney Smith's claimed time in the above entries
totaled 2.8 hours, and she was paid $112 by the SPD as a result
of these entries.
¶31 Attorney Smith eventually prepared a motion to modify
sentence and a motion for postconviction relief, both of which
the circuit court rejected. The circuit court instructed
Attorney Smith to prepare an order denying postconviction
relief. She failed to do so.
¶32 In December 2009, after receiving a pro se complaint
from D.D. about Attorney Smith, the court of appeals directed
Attorney Smith, under threat of sanctions, to answer various
questions concerning her representation of D.D. In her
responses, Attorney Smith informed the court of appeals that she
had allowed appellate deadlines to lapse because she had been
suffering from headaches and flu-like symptoms.
¶33 In January 2010 the SPD filed a report with the court
of appeals advising the court that Attorney Smith had agreed to
remove herself from the list of attorneys certified to take SPD
appointments, and thus, she could no longer represent D.D. The
court of appeals ordered Attorney Smith discharged from
representing D.D. and ordered the SPD to appoint new counsel.
¶34 Attorney Smith showed an inadequate level of
cooperation and honesty during the OLR's investigation of her
representation of D.D. Attorney Smith told the OLR that she had
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No. 2011AP2946-D
motions prepared to file on D.D.'s behalf by a particular point
in time, but her billing records showed otherwise. Attorney
Smith also failed to provide the OLR with a timely response to
its requests for copies of her billing records in the D.D.
matter, for details of her work, for copies of all motions she
claimed to have filed, and for an explanation for the billing
discrepancy described above.
¶35 Based on these facts, the referee determined that the
following misconduct occurred:
• By allowing appellate deadlines to lapse and by her
general inattention to D.D.'s interests, Attorney Smith
violated SCR 20:1.3.
• By failing to prepare an order denying postconviction
relief consistent with the directive of the circuit
court, Attorney Smith violated SCR 20:3.4(c).
• By deliberately giving D.D. the impression that she would
file or had filed pleadings on his behalf and then
failing to keep him adequately informed about the status
of his matters, including explaining failures to file and
delays on her part, Attorney Smith violated
SCR 20:1.4(a)(3).
• By making repeated false claims to the court that she had
previously prepared and sent motions on D.D.'s behalf,
Attorney Smith violated SCR 20:3.3(a)(1).18
18
SCR 20:3.3(a)(1) states a lawyer shall not knowingly
"make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."
17
No. 2011AP2946-D
• By falsely stating to the OLR that she had motions ready
on behalf of D.D. and by failing to answer questions and
provide documents requested by the OLR, Attorney Smith
violated SCR 22.03(6) and SCR 20:8.4(h).
¶36 After determining that Attorney Smith had committed
the misconduct in the 20 counts described above, the referee
recommended a six-month suspension of Attorney Smith's law
license. In support of this recommendation, the referee noted
that, in both this disciplinary matter and Attorney Smith's
earlier public reprimand, Attorney Smith displayed a tendency
toward failing to communicate appropriately with her clients and
offering dubious excuses for her substandard and untimely work.
The referee expressed serious concerns about Attorney Smith's
law firm management and client advocacy skills. The referee
determined that Attorney Smith's medical issues provided an
explanation for some, but not all, of Attorney Smith's
difficulties in providing effective counsel. The referee
determined that many of the unfavorable facts of Attorney
Smith's conduct showed that, for reasons independent of her
medical issues, Attorney Smith was dilatory in her case
management and in meeting her duties to her clients.
¶37 As to the appropriate monetary sanctions, the referee
recommended that Attorney Smith should be assessed the entire
costs of the disciplinary proceeding, which total $13,959.26 as
of July 9, 2013. The referee further recommended that Attorney
Smith should be required to make restitution to the SPD in the
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No. 2011AP2946-D
amount of $112, the amount of the billing discrepancy in the
D.D. case.
¶38 Attorney Smith appeals. The level of discipline and
the amount of awardable costs are the only disputes. Turning
first to the level of discipline, Attorney Smith argues that the
recommended six-month suspension does not sufficiently take into
account various mitigating factors, which include her allegation
that both she and her husband had significant health issues
during the time period in question, her expression of remorse
for her conduct, her recent efforts to improve her law practice
management and organization, and her history of serving low-
income clients. Attorney Smith also argues that although she
has been publicly reprimanded once before, moving from a public
reprimand directly to a six-month suspension would be
unreasonably harsh.
¶39 The OLR argues that a six-month suspension is
appropriate. It argues that the record discloses few, if any,
legitimate mitigating factors. It claims that suspensions are
frequently predicated on misconduct like that at issue here;
i.e., misconduct that spans multiple clients, incorporates
multiple counts of professional wrongdoing, and shows patterns
of unprofessional behavior. The OLR also points out that this
court has issued substantial suspensions even when the lawyer at
issue does not have a lengthy disciplinary history. See e.g.,
In re Disciplinary Proceedings Against DeGracie, 2004 WI 44, 270
Wis. 2d 640, 678 N.W.2d 252 (eight-month suspension for six
19
No. 2011AP2946-D
counts of misconduct where attorney had no previous disciplinary
history).
¶40 We conclude that the referee's findings of fact are
not clearly erroneous. See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675
N.W.2d 747. Although Attorney Smith argues that the referee
failed to give adequate weight to her testimony as to the extent
of her medical issues during the period in question, the referee
implicitly weighed the credibility of Attorney Smith's testimony
in this regard when the referee decided that some portion of her
misconduct was related to her medical issues. We will not
reassess Attorney Smith's credibility. See id. We also agree
with the referee that the facts of record demonstrate that
Attorney Smith committed each of the 20 counts of professional
misconduct as determined by the referee.
¶41 With respect to the discipline to be imposed, we
determine the appropriate level of discipline given the
particular facts of each case, independent of the referee's
recommendation, but benefiting from it. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686. After careful consideration of the report and
recommendation, the record in this matter, and the written
statements of the parties, we accept the referee's
recommendation regarding suspension.
¶42 Although there are both mitigating and aggravating
factors to consider in weighing the seriousness of Attorney
Smith's misconduct, the balance does not tip in Attorney Smith's
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No. 2011AP2946-D
favor. Weighing in Attorney Smith's favor are the facts that
she did not operate with a malicious intent, she did not benefit
personally from her misconduct, and, according to the referee,
she experienced medical problems during the period in question
that can explain some portion of her misconduct. Also weighing
in Attorney Smith's favor is the fact that she has expressed
remorse for her behavior. Weighing more heavily against
Attorney Smith are the facts that both this case and her
previous disciplinary case show a troubling pattern of poor
bookkeeping, office mismanagement, inadequate communication with
clients, and insufficient concern for her clients' reasonable
needs. Attorney Smith also has displayed a pattern of excuse-
making, blame-shifting, and obfuscation which suggests that
these types of transgressions could happen again.
¶43 In light of the circumstances presented, we are
persuaded that the referee's reasoning is sound and that a six-
month license suspension is necessary to advance the objectives
of lawyer discipline. A six-month suspension will require
Attorney Smith to petition this court for reinstatement under
SCR 22.28(3). Doing so will require her to demonstrate to this
court, before she resumes practice, that she has made efforts to
remedy the causes of her repeated failures to serve her clients.
¶44 We further conclude that full costs in the amount of
$13,956.26 are to be imposed on Attorney Smith. Attorney Smith
does not argue that there are extraordinary circumstances here
that would justify a departure from the court's standard
practice of imposing full costs against the respondent attorney.
21
No. 2011AP2946-D
See SCR 22.24(1m). Attorney Smith argues instead that the
amount of costs to be imposed against her will impose a
significant hardship given her current financial status. We
will not adjust the amount of costs imposed against Attorney
Smith based on a claim of lack of assets at this time. Attorney
Smith's allegations of financial hardship are an appropriate
consideration for establishment of a payment plan with the OLR;
assigning greater significance to them at this point would be
premature.
¶45 We further agree with the referee's recommendation
that Attorney Smith make a restitution payment to the SPD in the
amount of $112. Attorney Smith does not dispute the referee's
restitution recommendation, and we award restitution
accordingly.
¶46 IT IS ORDERED that the license of Suzanne M. Smith to
practice law in Wisconsin is suspended for a period of six
months, effective January 16, 2014.
¶47 IT IS FURTHER ORDERED that Suzanne M. Smith shall pay
restitution in the amount of $112 to the Office of the State
Public Defender, within 30 days of the date of this order.
¶48 IT IS FURTHER ORDERED that Suzanne M. Smith shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶49 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Suzanne M. Smith shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
22
No. 2011AP2946-D
¶50 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶51 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
23
No. 2011AP2946-D
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