Office of Lawyer Regulation v. Craig E. Vance , 372 Wis. 2d 39 ( 2016 )


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    2016 WI 89
    SUPREME COURT            OF   WISCONSIN
    CASE NO.:               2015AP655-D
    COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
    Against Craig E. Vance, Attorney at Law:
    Office of Lawyer Regulation,
    Complainant,
    v.
    Craig E. Vance,
    Respondent.
    DISCIPLINARY PROCEEDINGS AGAINST VANCE
    OPINION FILED:          October 26, 2016
    SUBMITTED ON BRIEFS:
    ORAL ARGUMENT:
    SOURCE OF APPEAL:
    COURT:
    COUNTY:
    JUDGE:
    JUSTICES:
    CONCURRED:
    DISSENTED:
    NOT PARTICIPATING:
    ATTORNEYS:
    
    2016 WI 89
                                                                  NOTICE
    This opinion is subject to further
    editing and modification.   The final
    version will appear in the bound
    volume of the official reports.
    No.     2015AP655-D
    STATE OF WISCONSIN                          :            IN SUPREME COURT
    In the Matter of Disciplinary Proceedings
    Against Craig E. Vance, Attorney at Law:
    Office of Lawyer Regulation,                                       FILED
    Complainant,                                     OCT 26, 2016
    v.                                                         Diane M. Fremgen
    Clerk of Supreme Court
    Craig E. Vance,
    Respondent.
    ATTORNEY       disciplinary   proceeding.        Attorney's         license
    suspended.
    ¶1     PER CURIAM.     We review the report and recommendation
    of the Referee Richard M. Esenberg that the license of Craig E.
    Vance to practice law in Wisconsin be suspended for nine months
    as    discipline     for   professional   misconduct.           The    referee's
    findings of fact, conclusions of law, and recommendation for a
    nine-month suspension were based on the parties' stipulation.
    ¶2     The complaint filed by the Office of Lawyer Regulation
    (OLR)      against    Attorney   Vance    asserted      various       forms       of
    No.     2015AP655-D
    misconduct, including that he was inattentive to a number of
    client    matters;         failed    to    cooperate         with    OLR    investigations;
    failed to inform clients, opposing counsel, and the courts of
    his temporary license suspension; and continued to practice law
    after    his    temporary         license       suspension.           The    OLR    complaint
    asserted, the parties stipulated, and the referee found, that
    Attorney Vance committed 21 counts of misconduct through his
    actions and inactions.
    ¶3         We     agree       with      the        referee's       determination          of
    misconduct and his recommendation that this misconduct warrants
    a suspension of Attorney Vance's Wisconsin law license for nine
    months.         We    depart       from     the       referee's      recommendation         that
    Attorney Vance should pay one-half of the total costs of this
    proceeding; we instead order him to pay the full costs of this
    proceeding, which total $2,570.85.                         Restitution is not an issue
    in this matter.
    ¶4         Attorney Vance was admitted to the practice of law in
    Wisconsin in 2002.                This court temporarily suspended Attorney
    Vance's license on February 20, 2014, due to his failure to
    cooperate with an OLR investigation into one of the matters
    included    in       the   disciplinary           complaint        before   us.      Attorney
    Vance's    license          was     also        suspended      in     October      2014     for
    nonpayment of bar dues.              His license remains suspended to date.
    ¶5         Counts      1-6     of     the     OLR's      complaint      arose     out    of
    Attorney       Vance's      representation            of    Z.A.      The    OLR    complaint
    alleged,       and      the       referee        found      based     on     the     parties'
    stipulation, the following facts.
    2
    No.    2015AP655-D
    ¶6     In     March   2012,     Attorney    Vance    filed      a     lawsuit    on
    Z.A.'s      behalf    without    informing      Z.A.    that     he    had    filed    the
    lawsuit.      He later failed to notify Z.A. of a settlement offer
    from    the   defendant.         He    failed     to   respond    to    requests       for
    admission from the defendant, resulting in the circuit court
    deeming the requests to be admitted.                    He failed to respond to
    the defendant's warning that it would seek costs associated with
    filing a summary judgment motion based on the deemed admissions
    unless he dismissed the case.              He also failed to inform Z.A. of
    the     defendant's      warning.         He      failed   to     respond       to     the
    defendant's ensuing summary judgment motion, and he failed to
    appear at the summary judgment hearing, resulting in the circuit
    court    granting      summary    judgment      against    Z.A.         He    failed    to
    respond to Z.A.'s phone call regarding his failure to attend the
    summary judgment hearing.
    ¶7     Z.A. retained a new lawyer, who wrote Attorney Vance
    to request a copy of the case file.                    Attorney Vance failed to
    respond to this request, which in turn forced the new lawyer to
    recreate the file and pay to obtain copies of documents from the
    clerk of court's office.
    ¶8     Z.A.'s     new    lawyer   filed     a    grievance      with    the     OLR
    against Attorney Vance.               Attorney Vance was uncooperative with
    the ensuing OLR investigation; he responded to the grievance
    only after this court ordered him to show cause why his license
    should not be suspended for willful failure to cooperate with
    the OLR investigation.           After receiving Attorney Vance's initial
    response to the grievance, the OLR                     repeatedly      asked him for
    3
    No.    2015AP655-D
    additional information.                He failed to respond to those requests.
    On February 20, 2014, this court temporarily suspended Attorney
    Vance's        law    license    for    his   failure    to   comply   with    the   OLR
    investigation.
    ¶9         The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in   the       Z.A.     matter    constituted      the    following      professional
    misconduct:
        Count One:     By purportedly believing that not
    responding   to   the  defendant's  requests    for
    admission was an appropriate course of action,
    without seeking a determination of relief from
    the court, Attorney Vance violated SCR 20:1.1.1
        Count Two:    By failing to pursue Z.A.'s suit,
    including   by   failing  to  respond   to  the
    defendant's requests for admission, failing to
    respond to the defendant's summary judgment
    motion, and failing to appear at the summary
    judgment hearing, Attorney Vance violated SCR
    20:1.3.2
        Count Three: By failing to inform Z.A. that the
    defendant's requests for admission were deemed
    admitted   by   operation   of    law,    and  that
    defendant's counsel requested that Attorney Vance
    voluntarily   dismiss   the    suit    against  the
    1
    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."
    2
    SCR 20:1.3 provides: "A lawyer shall act with reasonable
    diligence and promptness in representing a client."
    4
    No.   2015AP655-D
    defendant or face summary judgment and potential
    costs, Attorney Vance violated SCR 20:1.4(a)(3).3
       Count Four: By failing to provide Z.A.'s file to
    successor counsel, causing Z.A. and successor
    counsel to have to reassemble a file with copies
    produced by the circuit court at a cost, Attorney
    Vance violated SCR 20:1.16(d)4
       Count Five: By failing to timely file an initial
    written response to the grievance against him,
    and by doing so only after being ordered to show
    cause by the Supreme Court, Attorney Vance
    violated SCR 22.03(2)5 and SCR 22.03(6)6 enforced
    via SCR 20:8.4(h).7
    3
    SCR: 20:1.4(a)3 provides: "a lawyer shall keep the client
    reasonably informed about the status of the matter."
    4
    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   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.
    5
    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
    (continued)
    5
    No.    2015AP655-D
       Count Six:   By failing to respond to the OLR's
    subsequent request for a supplemental response,
    Attorney Vance violated SCR 22.03(6), enforced
    via SCR 20:8.4(h).
    ¶10     Counts    7-8     of   the        OLR's    complaint       arose     out   of
    Attorney     Vance's    representation           of    D.K.       The    OLR    complaint
    alleged,     and      the     referee      found        based     on     the     parties'
    stipulation, the following facts.
    ¶11     In July 2014, after the February 20, 2014 temporary
    suspension of his Wisconsin law license, Attorney Vance agreed
    to   represent     D.K.      related      to     a     petition    for     a    temporary
    restraining order filed against D.K.                      Attorney Vance appeared
    with D.K. at a hearing on the temporary restraining order.                              An
    individual who assisted the petitioner at the hearing filed a
    grievance    against        Attorney    Vance.          Attorney    Vance      failed   to
    respond to the OLR's requests to respond to the grievance.
    ¶12     The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    questions,   furnish   documents,   and   present                           any
    information deemed relevant to the investigation.
    6
    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."
    7
    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.    2015AP655-D
    in   the       D.K.    matter    constituted          the    following       professional
    misconduct:
       Count Seven:     By accepting a new matter and
    appearing in court to represent D.K. at a hearing
    on the temporary restraining order while his
    license was suspended, Attorney Vance violated
    SCR 22.26(2),8 enforced via SCR 20:8.4(f).9
       Count Eight:   By failing to file a response to
    the grievance investigation relating to his
    representation of D.K., Attorney Vance violated
    SCR 22.03(2) and SCR 22.03(6), enforced via SCR
    20:8.4(h).
    ¶13       Counts     9-12    of   the    OLR's         complaint    arose    out   of
    Attorney       Vance's    representation         of    R.K.       The    OLR   complaint
    alleged,        and     the     referee      found      based     on     the     parties'
    stipulation, the following facts.
    ¶14       In     April   2013,    Attorney       Vance     filed    a    lawsuit   on
    R.K.'s behalf.           After Attorney Vance failed to disclose expert
    and lay witnesses and provide expert reports by a court-ordered
    deadline in August 2013, the defendant filed a motion to dismiss
    8
    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 commercial employer
    itself not engaged in the practice of law.
    9
    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."
    7
    No.    2015AP655-D
    the case due to Attorney Vance's failure to prosecute it.                                   In
    January        2014,    the     circuit     court       held    a   hearing         on    the
    defendant's motion to dismiss.                   Attorney Vance appeared at the
    hearing.       The circuit court held its decision on the defendant's
    motion to dismiss in abeyance and allowed Attorney Vance to file
    his witness list on the date of the hearing.                             Attorney Vance
    failed to inform R.K. of the defendant's motion to dismiss, the
    hearing on the motion, and his filing of a witness list.                                 When
    this court temporarily suspended Attorney Vance's law license on
    February       20,     2014,    Attorney     Vance      failed      to    inform         R.K.,
    opposing       counsel,       and    the   circuit      court    about        his   license
    suspension.          Eventually, the circuit court dismissed R.K.'s case
    without prejudice due to Attorney Vance's failure to diligently
    prosecute       it.     R.K.    learned     of    the     dismissal      by    looking     at
    online records.
    ¶15       R.K. filed a grievance with the OLR regarding Attorney
    Vance's representation.              Attorney Vance failed to respond to the
    OLR's requests to respond to the grievance.
    ¶16       The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in   the       R.K.    matter       constituted     the    following          professional
    misconduct:
       Count Nine:       By failing to advance R.K.'s
    interests,   such   that   R.K.'s   lawsuit   became
    subject to a motion to dismiss for want of
    prosecution and, ultimately, dismissal by the
    circuit   court,   Attorney   Vance   violated   SCR
    20:1.3.
    8
    No.     2015AP655-D
       Count Ten:    By failing to inform R.K. of case
    developments, including that the case was subject
    to a motion to dismiss for want of prosecution,
    that a hearing on the motion was scheduled and
    heard, and that he filed a witness list on the
    date of the hearing on the motion to dismiss,
    Attorney Vance violated SCR 20:1.4(a)(3) and SCR
    20:1.4(a)(4).10
       Count Eleven:     By           failing to notify R.K., the
    court, or opposing             counsel of his February 2014
    license suspension,             Attorney Vance violated SCR
    22.26(1),11 enforced           via SCR 20:8.4(f).
       Count Twelve:  By failing to file a response in
    OLR's grievance investigation relating to his
    representation of R.K., Attorney Vance violated
    SCR 22.03(2) and SCR 22.03(6), enforced via SCR
    20:8.4(h).
    ¶17      Counts    13-14      of    the       OLR's      complaint      arose        out    of
    Attorney     Vance's       representation          of       L.M.     The    OLR     complaint
    alleged,     and      the       referee      found          based    on      the     parties'
    stipulation, the following facts.
    ¶18      L.M. retained Attorney Vance to represent her in a
    matter   related      to    a   petition      for       a    restraining         order    and   a
    disorderly conduct charge filed against her.                           In January 2014,
    Attorney     Vance     appeared        on   L.M.'s          behalf   at     an     injunction
    hearing.     The circuit court granted the injunction.                             After this
    court    temporarily        suspended       Attorney         Vance's       law    license       on
    10
    SCR: 20:1.4(a)4 provides: "a lawyer shall promptly comply
    with reasonable requests by the client for information."
    11
    SCR   22.26(1)    Activities   following  suspension or
    revocation provides:     "On or before the effective date of
    license suspension or revocation, an attorney whose license is
    suspended or revoked shall do the following: . . . "
    9
    No.   2015AP655-D
    February 20, 2014, he failed to inform L.M., the prosecutor, and
    the circuit court about his license suspension.                         He appeared at
    a court hearing on the disorderly conduct charge against L.M.
    following his temporary license suspension.                     He failed to appear
    at   a    later       scheduled   status      conference.        L.M.    informed      the
    circuit court that Attorney Vance was not responsive to her and
    was not performing his job as her attorney.                          The circuit court
    terminated Attorney Vance's representation and referred L.M. to
    the State Public Defender's Office.
    ¶19    L.M. filed a grievance with the OLR against Attorney
    Vance.         Attorney Vance failed to respond to the OLR's requests
    to respond to the grievance.
    ¶20    The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in   the       L.M.     matter    constituted        the    following     professional
    misconduct:
        Count Thirteen:    By failing to notify L.M., the
    prosecutor,   and   the   circuit court    of   his
    suspension, and by appearing at a hearing when
    his   license   was   suspended,  Attorney    Vance
    violated SCR 22.26(1) and SCR 22.26(2), enforced
    via SCR 20:8.4(f).
        Count Fourteen: By failing to file a response to
    the OLR's grievance investigation relating to his
    representation of L.M., Attorney Vance violated
    SCR 22.03(2) and SCR 22.03(6), enforced via SCR
    20:8.4(h).
    ¶21    Counts    15-17    of   the    OLR's       complaint    arose    out    of
    Attorney        Vance's    representation       of     H.B.    and    M.B.      The    OLR
    10
    No.      2015AP655-D
    complaint alleged, and the referee found based on the parties'
    stipulation, the following facts.
    ¶22     In    April     2013,    Attorney      Vance        filed    a       lawsuit   on
    H.B.'s       and     M.B.'s    behalf.          Attorney      Vance        appeared      at    a
    scheduling conference, but then failed to perform any further
    work on the case.               The defendant filed a motion for partial
    summary judgment, and the circuit court scheduled a hearing on
    the motion.           Attorney Vance failed to file a response to the
    motion and failed to appear at the motion hearing.                                  The circuit
    court    granted        the     defendant's         motion     for     partial          summary
    judgment.          The defendant then filed a motion to dismiss, and the
    circuit court scheduled a hearing on the motion.                            Attorney Vance
    failed to respond to the motion and failed to appear at the
    motion       hearing.         The    circuit    court    granted       the          defendant's
    motion to dismiss.             Because Attorney Vance did not respond to
    H.B.'s and M.B.'s phone calls and emails regarding the case,
    they    were       unaware    that     the   defendant       had    filed       a    motion   to
    dismiss, and they were expecting their case to proceed to trial
    until they received the notice of dismissal from the circuit
    court.
    ¶23     The OLR received a grievance against Attorney Vance
    regarding his conduct in the H.B. and M.B. matter.                              He failed to
    respond to the OLR's requests to respond to the grievance.
    ¶24     The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in     the     H.B.     and     M.B.     matter      constituted           the        following
    professional misconduct:
    11
    No.    2015AP655-D
       Count Fifteen:   By failing to file any response
    to the defendant's motion for partial summary
    judgment; by failing to appear at the hearing for
    that motion; by failing to file any response to
    the defendant's motion to dismiss; and by failing
    to appear at the hearing for that motion,
    Attorney Vance violated SCR 20:1.3.
       Count Sixteen: By failing to inform his clients
    of case developments, such that they were
    expecting their case to proceed to trial up to
    the point that they received the notice of
    dismissal from the circuit court, Attorney Vance
    violated SCR 20:1.4(a)(3).
       Count Seventeen:   By failing to file a response
    in the OLR grievance investigation relating to
    his representation of H.B. and M.B., Attorney
    Vance violated SCR 22.03(2) and SCR 22.03(6),
    enforced via SCR 20:8.4(h).
    ¶25      Counts    20-21   of    the   OLR's     complaint       arose    out   of
    Attorney     Vance's    representation        of   M.J.12     The    OLR   complaint
    alleged,     and      the    referee    found       based     on     the     parties'
    stipulation, the following facts.
    ¶26      In    October   2013,     Attorney     Vance    began    representing
    M.J. in her divorce and child placement cases.                      Attorney Vance
    continued to represent M.J. after his February 20, 2014 license
    suspension, without informing her of the suspension.
    ¶27       The OLR received a grievance against Attorney Vance
    regarding his conduct in the M.J. matter.                   He failed to respond
    to the OLR's requests to respond to the grievance.
    12
    Note that the OLR withdrew Counts 18 and 19 consistent
    with the terms of the parties' stipulation.     Counts 18 and 19
    involved Attorney Vance's conduct in the M.J. matter.
    12
    No.    2015AP655-D
    ¶28       The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in   the       M.J.    matter    constituted              the    following          professional
    misconduct:
       Count Twenty:   By failing to notify M.J. of his
    suspension, Attorney Vance violated SCR 22.26(1),
    enforced via SCR 20:8.4(f).
       County Twenty-One: By failing to file a response
    in the OLR's grievance investigation relating to
    his   representation of   M.J.,  Attorney  Vance
    violated SCR 22.03(2) and SCR 22.03(6), enforced
    via SCR 20:8.4(h).
    ¶29       Counts    22-23     of     the    OLR's          complaint         arose     out   of
    Attorney       Vance's    representation             of    P.L.       The         OLR    complaint
    alleged,        and     the     referee     found           based        on       the     parties'
    stipulation, the following facts.
    ¶30       In April 2014, after this court temporarily suspended
    Attorney       Vance's    law    license        on    February       20,       2014,      Attorney
    Vance   began         representing       P.L.        regarding       a        petition      for   a
    restraining order and/or injunction filed against him.                                    Attorney
    Vance did not inform P.L. that his law license was suspended.
    Attorney       Vance    appeared     on    P.L.'s          behalf    at       a    May     1,   2014
    hearing, at which he successfully asked the circuit court for
    additional       time    to     review     the       case.          Attorney            Vance   then
    demanded that P.L. pay him $500 in fees to attend the next
    scheduled hearing in the matter.                      P.L. never paid him the fee
    and filed a grievance against Attorney Vance.                                  Attorney Vance
    failed to respond to the OLR's requests to respond to P.L.'s
    13
    No.     2015AP655-D
    grievance and to the OLR's own inquiry into his representation
    of P.L.
    ¶31        The OLR complaint alleged, and the referee determined
    based on the parties' stipulation, that Attorney Vance's actions
    in    the       P.L.     matter    constituted       the     following     professional
    misconduct:
        Count Twenty-Two: By accepting a new matter and
    appearing in court to represent P.L. at a May 1,
    2014   court   hearing  when  his   license  was
    suspended, Attorney Vance violated SCR 22.26(2),
    enforced via SCR 20:8.4(f).
        Count Twenty-Three:     By failing to file a
    response to the OLR's investigations relating to
    his   representation of   P.L.,  Attorney  Vance
    violated SCR 22.03(2) and SCR 22.03(6), enforced
    via SCR 20:8.4(h).
    ¶32        As mentioned earlier, this case comes to the court on
    a referee's report based on a stipulation between the parties.
    In    the        stipulation,           Attorney     Vance    represents         that     he
    understands the misconduct allegations and the ramifications of
    his   entry       into     the    stipulation.         He    states     that     he    fully
    understands his right to contest the matter and his right to
    consult         with   counsel.     He     states     that    he    entered     into    the
    stipulation knowingly and voluntarily.                      He states that he admits
    the misconduct alleged in the 21 counts set forth above.                                 The
    stipulation also provides that it is not the result of plea
    bargaining.
    ¶33        Based     on     the     parties'     stipulation,       the     referee
    determined         that    the    record     conclusively          established    the    21
    counts      of    misconduct       described       above.       Also     based    on    the
    14
    No.     2015AP655-D
    parties' stipulation, the referee recommended that this court
    suspend the Wisconsin law license of Attorney Vance for nine
    months.
    ¶34   In    recommending        this     suspension,         the    referee       found
    both    mitigating      and     aggravating         factors.        On     the    mitigating
    side, the referee noted that Attorney Vance has no prior record
    of     discipline,      and     that    his        misconduct       occurred       during    a
    relatively brief period of time.                     On the aggravating side, the
    referee      found      that     Attorney          Vance     "has     no     excuse"        for
    "atrocious"       conduct, which included disregarding his clients,
    the OLR's requests for information, and this court's temporary
    suspension order.
    ¶35   The      referee    cited    two       cases    that    he    believed        were
    particularly          analogous    to     the        instant        matter:           In     re
    Disciplinary Proceedings Against Baehr, 
    2002 WI 17
    , 
    250 Wis. 2d 541
    , 
    639 N.W.2d 708
    , and In re Disciplinary Proceedings Against
    Hansen, 
    2009 WI 56
    , 
    318 Wis. 2d 1
    , 
    768 N.W.2d 1
    .                                 In Baehr, a
    lawyer received a six-month suspension for misconduct, including
    failing to keep a client reasonably informed about the status of
    a matter; failing to cooperate with disciplinary investigations;
    failing, upon termination of the representation, to take steps
    to   protect      a    client's    interests;          and     failing      to     act     with
    reasonable diligence and promptness in representing a client.
    In   Hansen, a lawyer received a nine-month suspension for 28
    counts of misconduct in four client matters, including failing
    to take action on behalf of his clients, failing to keep clients
    reasonably     informed,        failing       to    properly     explain         matters     to
    15
    No.     2015AP655-D
    clients,      failing    to    cooperate       with    OLR   investigations,      and
    failing to withdraw from representation when a medical condition
    (depression) affected his ability to represent clients.
    ¶36    Because no appeal has been filed from the referee's
    report and recommendation, we review the matter pursuant to SCR
    22.17(2).13            When        reviewing     a     referee's        report    and
    recommendation, we affirm the referee's findings of fact unless
    they    are    found    to    be   clearly     erroneous,    but   we    review   the
    referee's conclusions of law on a de novo basis. See In re
    Disciplinary Proceedings Against Inglimo, 
    2007 WI 126
    , ¶5, 
    305 Wis. 2d 71
    , 
    740 N.W.2d 125
    .             We determine the appropriate level
    of discipline to impose 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
    .
    ¶37    We accept the referee's findings of fact, which were
    based on the parties' stipulation.                    We agree with the referee
    that those facts demonstrate that Attorney Vance committed each
    of the 21 counts of misconduct discussed above.
    13
    SCR 22.17(2) provides:
    If no appeal is filed timely, the supreme court shall
    review the referee's report; adopt, reject or modify
    the referee's findings and conclusions or remand the
    matter to the referee for additional findings; and
    determine and impose appropriate discipline. The
    court, on its own motion, may order the parties to
    file briefs in the matter.
    16
    No.   2015AP655-D
    ¶38     Turning to the level of discipline, we agree with the
    referee that the proper level of discipline is a nine-month
    suspension.           The       aggravating           factors    here    are     considerable.
    Attorney Vance's actions show a total disregard of his clients'
    needs    and    objectives,            as   well       as   of   his     obligations        as   an
    attorney       in    this       state.          His    actions    had    serious,       negative
    effects.       His indifference to the welfare of his clients and the
    status of their cases caused them distress and legal setbacks.
    His indifference to the OLR's investigatory process and this
    court's       temporary         suspension        order     flaunted      the    authority        of
    this court and its rules and orders.                        The mitigating factors are
    few.      All       Attorney      Vance         has    to   offset      the    weight    on      the
    aggravating side of the scale are the facts that he has no prior
    disciplinary history and that he entered into a stipulation that
    resolves this disciplinary proceeding.                           Balancing these factors,
    we     conclude      that        the     recommended        nine-month          suspension        is
    clearly deserved.
    ¶39     We turn now to the matter of costs.                               Although the
    parties' stipulation does not address the issue of costs, the
    OLR     has    filed        a    statement            showing    total        costs   for     this
    proceeding of $2,570.85 and recommending that this court impose
    the full amount of costs on Attorney Vance.                               In contrast, the
    referee suggested in his report that this court should order a
    one-half reduction in costs because, in the referee's view, this
    case    became      contested          as   a    result     of    the    OLR    asserting        two
    counts (Counts 18 and 19) that it later withdrew.
    17
    No.   2015AP655-D
    ¶40    After       considering       the     OLR's           and    the      referee's
    positions on the costs issue, we hold that Attorney Vance should
    be   required      to     pay   the     full     costs       of     this     disciplinary
    proceeding.       Attorney Vance has not demonstrated why we should
    deviate in this case from our practice of assessing full costs.
    See SCR 22.24(1m).         He has not shown that the OLR over-litigated
    any part of this case.               He has not shown that the two counts
    alleged    and    then     withdrawn     by     the    OLR       were    wholly    without
    prosecutorial merit; indeed, it is doubtful he could make such a
    showing    in     light    of   his    admission        that       he   did      not    fully
    cooperate with the OLR's investigation into these counts.                               Given
    that Attorney Vance's conduct caused this prosecution to proceed
    on all counts, we see no reason to shift any of the costs of
    this proceeding to the other attorneys of the state who are
    innocent of wrongdoing.
    ¶41    Finally,       we    note     that        the    OLR        does     not     seek
    restitution.       None is ordered.
    ¶42    IT IS ORDERED that the license of Craig E. Vance to
    practice law in Wisconsin is suspended for a period of nine
    months, effective November 30, 2016.
    ¶43    IT IS FURTHER ORDERED that Craig E. Vance 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.
    ¶44    IT IS FURTHER ORDERED that within 60 days of the date
    of this order, Craig E. Vance shall pay to the Office of Lawyer
    Regulation the costs of this proceeding.
    18
    No.   2015AP655-D
    ¶45   IT      IS   FURTHER     ORDERED     that     compliance      with    all
    conditions of this order is required for reinstatement. See SCR
    22.29(4)(c).
    ¶46   IT   IS      FURTHER    ORDERED     that    the   February    20,    2014
    temporary suspension of Craig E. Vance's license to practice law
    in Wisconsin, due to his willful failure to cooperate with the
    OLR's investigation in this matter, is lifted.
    ¶47   IT      IS    FURTHER     ORDERED      that       the   administrative
    suspension      of     Craig   E.    Vance's     license   to    practice    law    in
    Wisconsin as a result of his failure to pay mandatory bar dues
    will   remain     in      effect    until   he   rectifies      this   delinquency,
    pursuant to SCR 22.28(1).
    19
    No.   2015AP655-D
    1
    

Document Info

Docket Number: 2015AP000655-D

Citation Numbers: 372 Wis. 2d 39, 2016 WI 89, 886 N.W.2d 583, 2016 Wisc. LEXIS 340

Judges: Per Curiam

Filed Date: 10/26/2016

Precedential Status: Precedential

Modified Date: 10/19/2024