Office of Lawyer Regulation v. John R. Maynard , 352 Wis. 2d 629 ( 2014 )

2014 WI 13
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2362-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
John R. Maynard, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
John R. Maynard,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MAYNARD
OPINION FILED: March 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 13
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2362-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John R. Maynard, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 14, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
John R. Maynard,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to SCR 22.121 by the Office of Lawyer Regulation (OLR) and
1
SCR 22.12 provides: Stipulation.
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may
consider the complaint and stipulation without the
appointment of a referee.
No. 2013AP2362-D
Attorney John R. Maynard. In the stipulation, Attorney Maynard
agrees that by failing to give timely written notice of the
suspension of his license to practice law, and consequent
inability to continue as counsel, to each of his clients; by
continuing to practice law after the date this court ordered his
license suspended; by knowingly making a false statement to a
court that his license had already been reinstated; by repeated
use of firm letterhead while he was suspended and other false
and misleading communications that he was an attorney permitted
to practice law in Wisconsin during the term of his suspension;
by failing to fully and fairly disclose all facts and
circumstances pertaining to his alleged misconduct; and by
filing a complaint that violated Wis. Stat. § 802.05(2), as
subsequently determined by a court, a one-year suspension of his
license to practice law in Wisconsin is an appropriate level of
discipline. There is no request in this matter for a
restitution award, nor is there a request for the imposition of
costs against Attorney Maynard.
(2) If the supreme court approves a stipulation,
it shall adopt the stipulated facts and conclusions of
law and impose the stipulated discipline.
(3) If the supreme court rejects the stipulation,
a referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(4) A stipulation rejected by the supreme court
has no evidentiary value and is without prejudice to
the respondent's defense of the proceeding or the
prosecution of the complaint.
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No. 2013AP2362-D
¶2 After careful review of the matter, we agree that a
one-year suspension of Attorney Maynard's license to practice
law in Wisconsin is a proper sanction. Since the matter is
being resolved without the appointment of a referee, we do not
impose any costs on Attorney Maynard.
¶3 Attorney Maynard was admitted to the practice of law
in Wisconsin in 1973. He was admitted to practice law in
California the same year. On December 29, 2009, this court
suspended Attorney Maynard's license to practice law for 90
days, effective February 1, 2010, for failing to notify his
former law firm of payments for legal services that he received
and deposited in his personal account, and for making false and
misleading communications when he failed to identify his "of
counsel" status when he used law firm stationery and when he
represented on a postal application that he was a principal of
the law firm. See In re Disciplinary Proceedings Against
Maynard, 2009 WI 106, 322 Wis. 2d 53, 776 N.W.2d 583.
¶4 Attorney Maynard was reinstated from the disciplinary
suspension on January 31, 2011. However, his Wisconsin law
license was not restored to good standing until May 2, 2011, due
to existing administrative suspensions of his license caused by
his noncompliance with continuing legal education (CLE)
requirements and failure to pay State Bar of Wisconsin dues.
¶5 On September 1, 2011, this court temporarily suspended
Attorney Maynard's license to practice law for his willful
failure to respond or cooperate in an OLR grievance
investigation involving the conduct that is the subject of this
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No. 2013AP2362-D
opinion. That temporary suspension remains in effect. In
addition to the temporary disciplinary suspension, Attorney
Maynard's license to practice law is currently administratively
suspended for failure to pay State Bar of Wisconsin dues,
failure to file a trust account certification, and noncompliance
with CLE requirements.
¶6 Attorney Maynard's license to practice law in
California was suspended for 90 days in 2011, as reciprocal
discipline to his 90-day suspension in Wisconsin. In 2012 his
California license was inactivated for failure to comply with
his obligations while he was suspended. On October 15, 2012,
his California license was suspended for failure to take and
pass the Multistate Professional Responsibility Examination by
August 21, 2012, which was a condition of reinstatement.
Attorney Maynard was ultimately disbarred from California for
his noncompliance, effective August 16, 2013.
¶7 Between the time the Wisconsin suspension order was
issued on December 29, 2009, and its February 1, 2010 effective
date, Attorney Maynard was in practice as a partner in Maynard,
Schmitt & Associates, in Cedarburg, Wisconsin. The only other
attorney at the firm was Attorney Maynard's then-partner,
Mark S. Schmitt.
¶8 As of February 1, 2010, Attorney Maynard was attorney
of record in seven cases pending in the courts and he was also
performing legal services for various other clients. On
January 29, 2010, Attorney Maynard wrote to one client advising
that Attorney Maynard was being suspended from the practice of
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No. 2013AP2362-D
law for 90 days and would be unable to act as the client's
attorney during that period. Rather than advising the client to
seek legal advice of his choice elsewhere, as required by
SCR 22.26(1)(b), Attorney Maynard said that the pending matters
would be handled by Mark Schmitt. The letter went on to say,
"As an alternative, you can seek legal services elsewhere
regarding these two matters." This letter was the only letter
notifying a client of his suspension that Attorney Maynard
produced for the OLR, despite the OLR's request for information
about, and copies of, all such letters.
¶9 On October 25, 2013, the OLR filed a complaint
alleging nine counts of misconduct with respect to Attorney
Maynard's failure to give timely written notice of the
suspension of his license to practice law as required by
SCR 22.26(1); his continuing to practice law during the term of
his suspension; misrepresenting himself as an attorney while he
was in fact suspended; filing a frivolous complaint; and failing
to provide complete information to the OLR during the course of
its investigation.
¶10 The complaint alleged the following counts of
misconduct:
[COUNT I] By failing to give timely written
notice of the suspension of his license to practice
law, and consequent inability to continue as counsel,
to each of his clients, to each of the courts before
which a client's legal action was pending, and to each
other party's counsel in those actions, by failing to
advise each of [his] clients, in writing, to seek
legal counsel elsewhere, and by failing to provide an
affidavit listing all clients in all pending matters
5
No. 2013AP2362-D
and listing all matters pending before any court or
administrative agency, Maynard violated SCR 20:8.4(f)2
and SCR 22.26(1).3
2
SCR 20:8.4(f) provides that 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; . . . ."
3
SCR 22.26(1) states: Activities following suspension or
revocation.
(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
(d) Within the first 15 days after the effective
date of suspension or revocation, make all
arrangements for the temporary or permanent closing or
winding up of the attorney's practice. The attorney
may assist in having others take over clients' work in
progress.
(e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:
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No. 2013AP2362-D
[COUNT II] By swearing in a SCR 22.26(1)(e)
affidavit that his name had been removed from the law
firm's [stationery] and that there were no pending
court matters not identified in his affidavit, and by
omitting the names of clients with pending legal
matters, when he knew all of that information to be
inaccurate and/or incomplete, Maynard violated
4
SCR 20:8.4(c) .
[COUNT III] By continuing to practice law in
Wisconsin after February 1, 2010, when the Supreme
Court of Wisconsin ordered his license suspended,
Maynard violated SCR 20:8.4(f), SCR 22.26(2),5 and
SCR 20:5.5(a)(1).6
(i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
procedures regarding the closing of the attorney's
practice.
(ii) A list of all jurisdictions, including
state, federal and administrative bodies, before which
the attorney is admitted to practice.
(iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.
(f) Maintain records of the various steps taken
under this rule in order that, in any subsequent
proceeding instituted by or against the attorney,
proof of compliance with the rule and with the
suspension or revocation order is available.
4
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
5
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
7
No. 2013AP2362-D
[COUNT IV] By knowingly making a false statement
to the court in the Petrolon v. Badger Sheet Metal
Works [(Brown County Case No. 2010CV34)] matter that
his license had already been reinstated, and, in a
subsequent letter to the same court, by omitting
relevant facts and creating the false impression that
OLR had consented to his resumption of the practice of
law, Maynard violated SCR 20:3.3(a)(1)7 and
SCR 20:8.4(c).
[COUNT V] By repeated use of firm letterhead
while he was suspended and multiple other false or
misleading communications that he was an attorney
permitted to practice law in Wisconsin during his
suspension, Maynard violated SCR 20:7.1(a)8 and
9
SCR 20:7.5(a).
commercial employer itself not engaged in the practice
of law.
6
SCR 20:5.5(a)(1) states that a lawyer shall not:
[P]ractice law in a jurisdiction where doing so
violates the regulation of the legal profession in
that jurisdiction except that a lawyer admitted to
practice in Wisconsin does not violate this rule by
conduct in another jurisdiction that is permitted in
Wisconsin under SCR 20:5.5 (c) and (d) for lawyers not
admitted in Wisconsin; . . . .
7
SCR 20:3.3(a)(1) states that 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; . . . ."
8
SCR 20:7.1(a) states: "A lawyer shall not make a false or
misleading communication about the lawyer or the lawyer's
services. A communication is false or misleading if it: (a)
contains a material misrepresentation of fact or law, or omits a
fact necessary to make the statement considered as a whole not
materially misleading; . . . ."
9
SCR 20:7.5(a) provides as follows:
A lawyer shall not use a firm name, letterhead or
other professional designation that violates
SCR 20:7.1. A trade name may be used by a lawyer in a
private practice if it does not imply a connection
8
No. 2013AP2362-D
[COUNT VI] By misrepresenting himself to counsel
for another party as an attorney while he was
suspended, by making conflicting representations about
whether he or his partner drafted the Articles of
Amendment for Absolute Automations Systems, Inc., by
dishonestly claiming lack of knowledge of SCR 22.28,
by making selective and incomplete factual
representations to create a false impression about
OLR's position on his practice of law during May 2010,
by deceitfully stating in a letter to OLR that while
suspended he had not undertaken work for clients, or
filed or attended hearings in any courtroom, by
misrepresenting on his "Petition to Voluntarily
Surrender a Wisconsin License," that there were no
grievances pending against him, Maynard violated
SCR 20:8.4(c).
[COUNT VII] By serving as general counsel for a
corporation in Georgia, meeting with corporate
management personnel in Georgia to discuss legal
issues, giving legal advice to management personnel of
the corporation located in Georgia, providing legal
documents he prepared to the Georgia corporation and
by representing the corporation to others, all without
being duly licensed as an attorney in Georgia, Maynard
violated SCR 20:5.5(a)(1).
[COUNT VIII] By failing to fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct, by failing to answer questions and
produce documents and information requested by OLR by
generally failing to provide relevant information, and
by providing incomplete information and information
containing misrepresentations, Maynard violated
10
SCR 22.03(2) and SCR 22.03(6), enforced via
SCR 20:8.4(h).11
with a government agency or with a public or
charitable legal services organization and is not
otherwise in violation of SCR 20:7.1.
10
SCRs 22.03(2) and (6) provide as follows:
(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
9
No. 2013AP2362-D
[COUNT IX] By filing a complaint in Petrolon v.
Badger Sheet Metal Works that violated Wis. Stat.
§ 802.05(2), as subsequently determined by a court,
Maynard violated SCR 20:3.1(a).12
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.
. . . .
(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.
11
SCR 20:8.4(h) states 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); . . . ."
12
SCR 20:3.1(a) states:
(a) In representing a client, a lawyer shall not:
(1) knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer
may advance such claim or defense if it can be
supported by good faith argument for an extension,
modification or reversal of existing law;
(2) knowingly advance a factual position unless
there is a basis for doing so that it not frivolous;
or
(3) 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
10
No. 2013AP2362-D
¶11 On November 15, 2013, the OLR and Attorney Maynard
entered into a stipulation whereby Attorney Maynard agreed that
his conduct violated all of the supreme court rules referenced
in the OLR's complaint. He further agreed that it would be
appropriate for this court to impose the level of discipline
sought by the OLR director, namely a one-year suspension of his
license to practice law in Wisconsin.
¶12 Attorney Maynard states that he fully understands the
misconduct allegations and the ramifications should this court
impose a one-year license suspension. He also states that he
fully understands his right to contest this matter and his right
to consult with counsel. He represents that his entry into the
stipulation is made knowingly and voluntarily.
¶13 Having carefully considered this matter, we approve
the stipulation and adopt the stipulated facts and legal
conclusions of professional misconduct. We also agree that a
one-year suspension of Attorney Maynard's license to practice
law in Wisconsin is appropriate. We note that in In re
Disciplinary Proceedings Against Hahnfeld, 2012 WI 17, 338
Wis. 2d 740, 809 N.W.2d 382, an attorney's license was suspended
for one year for six counts of misconduct relating to his
continued representation of a client while suspended, his
failure to disclose his suspension to the client or the OLR, and
his failure to cooperate with the OLR; and three counts related
obvious that such an action would serve merely to
harass or maliciously injure another.
11
No. 2013AP2362-D
to the attorney's failure to hold in trust that client's fees
and refusal to refund fees when he was terminated by the client.
Attorney Hahnfeld had two prior public reprimands and a 60-day
license suspension, a more extensive disciplinary history than
does Attorney Maynard. In addition, a component of Attorney
Hahnfeld's misconduct involved client fees, whereas Attorney
Maynard's misconduct did not involve any fee issues. On the
other hand, Attorney Hahnfeld's conduct did not include making
false representations to a court or filing a frivolous lawsuit,
and Attorney Hahnfeld's case related to only one client whereas
Attorney Maynard represented multiple clients while his license
was suspended. On balance, however, the misconduct at issue in
Hahnfeld and the misconduct at issue in this matter are somewhat
similar, leading to the conclusion that a one-year suspension of
Attorney Maynard's license is an appropriate sanction.
¶14 IT IS ORDERED that the license of John R. Maynard to
practice law in Wisconsin is suspended for one year, effective
the date of this order.
¶15 IT IS FURTHER ORDERED that the temporary license
suspension of September 1, 2011, which arose out of Attorney
Maynard's willful failure to respond or cooperate into the OLR's
grievance investigation in this matter, is lifted.
¶16 IT IS FURTHER ORDERED John R. Maynard 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.
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No. 2013AP2362-D
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No. 2013AP2362-D
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