Office of Lawyer Regulation v. John R. Dade ( 2017 )

2017 WI 51SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2452-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
John R. Dade,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DADE
OPINION FILED: May 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 51NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2452-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAY 23, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
John R. Dade,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
and Attorney John R. Dade have filed a stipulation pursuant to
Supreme Court Rule (SCR) 22.12 jointly recommending that
Attorney Dade should be publicly reprimanded for professional
No. 2016AP2452-D
misconduct.1 Upon careful review of the matter, we approve the
stipulation and publicly reprimand Attorney Dade. We impose no
costs.
¶2 Attorney Dade was admitted to the practice of law in
Wisconsin on January 11, 1983. Attorney Dade's professional
discipline history consists of the following:
a. In September of 1991, Attorney Dade received a
private reprimand for failing to communicate, failing
to act with reasonable diligence, and failing to
cooperate with the investigation of the Board of
Attorneys Professional Responsibility, the predecessor
to the OLR. Private Reprimand No. 1991-24 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/000049.html).
b. In April of 2007, Attorney Dade received a public
reprimand for failure to provide competent
representation, lack of diligence, and failure to
communicate. Public Reprimand of John R. Dade, No.
2007-7 (electronic copy available at
https://compendium.wicourts.gov/app/raw/001916.html).
c. In June of 2007, Attorney Dade's license to
practice law was suspended for 60 days for lack of
diligence, failure to hold in trust the property of
others in his client trust account, and failure to
1
The stipulation in this matter was filed with the court on
February 14, 2017 and was promptly taken under advisement. On
April 19, 2017, more than two months later, the OLR filed a
memorandum in support of the stipulation. Supreme Court Rule
22.12 does not provide a formal deadline for filing such a
memorandum but this belated submission arrived well after the
court had deliberated and decided the matter. Nothing in the
memorandum explains the reason for the excessive delay in
providing the court with this information. Timely receipt of
the information would have facilitated this court's review but
does not affect the court's decision to accept the stipulation.
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No. 2016AP2452-D
cooperate in an OLR investigation. In re Disciplinary
Proceedings Against Dade, 2007 WI 66, 301 Wis. 2d 67,
732 N.W.2d 433.
d. In January of 2012, Attorney Dade received a public
reprimand for lack of diligence, failure to
communicate, failure to cooperate with the OLR's
investigation, and failure to return a client's
documents. Public Reprimand of John R. Dade, No.
2012-1 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002427.html).
e. In February of 2013, Attorney Dade's license to
practice law was suspended for 60 days for lack of
diligence, lack of communication, and failure to obey
a court order. In re Disciplinary Proceedings Against
Dade, 2013 WI 21, 345 Wis. 2d 646, 827 N.W.2d 86.
f. In August of 2014, Attorney Dade's license to
practice law was suspended for 90 days, and he was
ordered to complete six CLE credits in law office
management as a condition of reinstatement of his
license, for lack of diligence and failure to
cooperate with the OLR's investigation. In re
Disciplinary Proceedings Against Dade, 2014 WI 108, __
Wis. 2d __, 852 N.W.2d 489.
¶3 On December 15, 2016, the OLR filed a complaint
against Attorney Dade alleging two counts of professional
misconduct based on his representation of J.Q. In November of
2009, J.Q. paid Attorney Dade an advanced fee of $3,000 for
"case evaluation/possible representation." In January of 2010,
J.Q. formally retained Attorney Dade to represent him on eight
felony drug charges in Walworth County and in a pending
probation revocation proceeding.
¶4 The complaint alleged and the parties stipulated that
Attorney Dade did not communicate to J.Q. in writing the scope
of his representation or the basis or rate of his fee or
expenses for which J.Q. would be responsible. Attorney Dade did
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No. 2016AP2452-D
not communicate to J.Q. in writing the purpose and effect of the
$3,000 advanced fee that J.Q. paid. During the course of his
representation of J.Q., Attorney Dade made several disbursements
from his trust account for the purpose of paying attorney fees
he billed to J.Q., without first transmitting the requisite
notice to J.Q. that he was going to do so.
¶5 The OLR alleged and the parties later stipulated that,
by failing to communicate to J.Q. in writing the scope of his
representation or the basis or rate of his fee or expenses for
which J.Q. would be responsible; and by failing to communicate
to J.Q. in writing the purpose and effect of the $3,000 advanced
fee that J.Q. paid, Attorney Dade violated SCRs 20:1.5(b)(1) and
(2).2
2
SCRs 20:1.5(b)(l) and (2) provide:
(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall be communicated to the
client in writing, before or within a reasonable time
after commencing the representation, except when the
lawyer will charge a regularly represented client on
the same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including attorney's
fees, will be $1000 or less, the communication may be
oral or in writing. Any changes in the basis or rate
of the fee or expenses shall also be communicated in
writing to the client.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
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No. 2016AP2452-D
¶6 The OLR alleged further and the parties thereafter
stipulated that, by making several disbursements from his trust
account for the purpose of paying his attorney fees without
first transmitting the requisite notice to J.Q., Attorney Dade
violated former SCR 20:1.15(g)(1).3 In its complaint, the OLR
sought a public reprimand and costs. The OLR did not seek
restitution.
¶7 On February 14, 2017, Attorney Dade entered into a
stipulation with the OLR in which he agreed that the facts
alleged in the OLR's complaint establish the alleged misconduct
and support the discipline sought by the OLR, namely a public
3
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.
Former SCR 20:1.15(g)(1) provided: At least 5
business days before the date on which a disbursement
is made from a trust account for the purpose of paying
fees, with the exception of contingent fees or fees
paid pursuant to court order, the lawyer shall
transmit to the client in writing all of the
following:
a. an itemized bill or other accounting showing
the services rendered;
b. notice of the amount owed and the anticipated
date of the withdrawal; and
c. a statement of the balance of the client's
funds in the lawyer trust account after the
withdrawal.
5
No. 2016AP2452-D
reprimand. The stipulation made no reference to restitution or
costs.
¶8 In the stipulation, Attorney Dade states that the
stipulation did not result from plea bargaining, that he does
not contest the facts and misconduct alleged by the OLR or the
discipline sought by the OLR director. Attorney Dade further
states that he agrees the facts alleged in the OLR's complaint
may form a basis for the discipline requested by the OLR
director. He further avers that he fully understands the
misconduct allegations; fully understands the ramifications
should this court impose the stipulated level of discipline;
fully understands his right to contest the matter; fully
understands his right to consult with counsel and represents
that he has in fact consulted with counsel; that his entry into
the stipulation is made knowingly and voluntarily; and that he
has read the OLR's complaint and the stipulation and that his
entry into the stipulation represents his decision not to
contest the misconduct alleged in the complaint or the level and
type of discipline sought by the OLR director.
¶9 This is Attorney Dade's seventh disciplinary
proceeding. Given Attorney Dade's lengthy disciplinary history
we question whether yet another public reprimand is sufficient
discipline for this latest incident of misconduct. Generally,
discipline is progressive in nature. See, e.g., In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296
Wis. 2d 47, 719 N.W.2d 501. Unfortunately, the parties'
stipulation cites no case law in support of a public reprimand
6
No. 2016AP2452-D
and does not explain why progressive discipline is not warranted
here. Admittedly, there are times when progressive discipline
is not appropriate given the nature of the subsequent violation
or other extenuating circumstances. See, e.g., In re
Disciplinary Proceedings Against Crandall, 2015 WI 111, 365
Wis. 2d 682, 872 N.W.2d 649 (imposing public reprimand on lawyer
with previous public reprimand and three previous disciplinary
suspensions). The stipulation makes no reference to any such
extenuating circumstances. However, at times we have imposed a
public reprimand despite prior discipline. See, e.g., In re
Disciplinary Proceedings Against Kremkoski, 2006 WI 59, 291
Wis. 2d 1, 715 N.W.2d 594 (imposing public reprimand despite
prior private and public reprimand); In re Disciplinary
Proceedings Against Brandt, 2009 WI 43, 317 Wis. 2d 266, 766
N.W.2d 194 (imposing public reprimand despite two private
reprimands and a public reprimand); In re Disciplinary
Proceedings Against Hudec, 2014 WI 46, 354 Wis. 2d 728, 848
N.W.2d 287 (imposing public reprimand despite three prior
private reprimands and one public reprimand).
¶10 On balance, we have decided to accept the parties'
stipulation and we impose the stipulated discipline, namely a
public reprimand. We are persuaded that this is appropriate as
the misconduct in this case does not appear to warrant license
suspension. Because this matter was resolved without referee
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No. 2016AP2452-D
involvement, we do not impose costs upon Attorney Dade.4 It
appears restitution is not sought; neither the complaint nor the
stipulation addresses restitution. Accordingly, no restitution
is ordered.
¶11 IT IS ORDERED that John R. Dade is publicly
reprimanded.
4
Upon the OLR's filing of proof of service, Referee John B.
Murphy was appointed. Referee Murphy withdrew upon the filing
of the parties' stipulation.
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No. 2016AP2452-D
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