Office of Lawyer Regulation v. Charles J. Labanowsky, III , 353 Wis. 2d 138 ( 2014 )

2014 WI 18SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2836-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Charles J. Labanowsky, III, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Charles J. Labanowsky, III,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST LABANOWSKY
OPINION FILED: March 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 18NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2836-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Charles J. Labanowsky, III, Attorney at
Law:
Office of Lawyer Regulation, FILED
Complainant, MAR 26, 2014
v. Diane M. Fremgen
Clerk of Supreme Court
Charles J. Labanowsky, III,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney Charles J. Labanowsky III has
filed a petition for consensual revocation of his license to
practice law in Wisconsin pursuant to SCR 22.19.1 Attorney
1
SCR 22.19 states as follows: Petition for consensual
license revocation.
(1) An attorney who is the subject of an
investigation for possible misconduct or the
respondent in a proceeding may file with the supreme
court a petition for the revocation by consent or his
or her license to practice law.
No. 2013AP2836-D
Labanowsky states in his petition that he cannot successfully
defend against allegations of professional misconduct related to
several incidents the Office of Lawyer Regulation (OLR) is
currently investigating.
¶2 Attorney Labanowsky was admitted to practice law in
1975. He received a public reprimand in 2009, for engaging in
acts leading to separate convictions of misdemeanor second
offense operating with a prohibited alcohol concentration of .08
or more, misdemeanor bail jumping, misdemeanor operating while
(2) The petition shall state that the petitioner
cannot successfully defend against the allegations of
misconduct.
(3) If a complaint has not been filed, the
petition shall be filed in the supreme court and shall
include the director's summary of the misconduct
allegations being investigated. Within 20 days after
the date of filing of the petition, the director shall
file in the supreme court a recommendation on the
petition. Upon a showing of good cause, the supreme
court may extend the time for filing a recommendation.
(4) If a complaint has been filed, the petition
shall be filed in the supreme court and served on the
director and on the referee to whom the proceeding has
been assigned. Within 20 days after the filing of the
petition, the director shall file in the supreme court
a response in support of or in opposition to the
petition and serve a copy on the referee. Upon a
showing of good cause, the supreme court may extend
the time for filing a response. The referee shall
file a report and recommendation on the petition in
the supreme court within 30 days after receipt of the
director's response.
(5) The supreme court shall grant the petition
and revoke the petitioner's license to practice law or
deny the petition and remand the matter to the
director or to the referee for further proceedings.
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No. 2013AP2836-D
intoxicated (OWI) 3rd and misdemeanor OWI 4th, all in violation
of SCR 20:8.4(b). Public Reprimand of Charles J. Labanowsky
III, No. 2009-2. He received a public reprimand in 2011, for
engaging in acts leading to a criminal conviction of misdemeanor
theft in violation of SCR 20:8.4(b). Public Reprimand of
Charles J. Labanowsky III, No. 2011-16. He voluntarily retired
from the practice of law in April 2013.
¶3 Attached to Attorney Labanowsky's petition for
consensual revocation is a summary of misconduct allegations
that the OLR is investigating. These include five alcohol-
related incidents between April 2012 and May 2013 and
allegations of trust account anomalies.
¶4 On April 27, 2012, Attorney Labanowsky was arrested
and subsequently charged with driving a motor vehicle while
under the influence of an intoxicant, 5th offense. State v.
Charles J. Labanowsky III, Kenosha County Case No. 20l2-CF-470.
Attorney Labanowsky posted a cash bond and was released on the
conditions that he was not to possess or consume illegal
controlled substances without a prescription, he was not to
possess or consume alcohol, he was to submit to random blood
alcohol testing, and he was not to drive a vehicle without a
valid driver's license.
¶5 On August 28, 2012, Attorney Labanowsky was seen
driving his car away from the Kenosha County courthouse. He was
stopped by a sheriff's deputy. Attorney Labanowsky admitted he
knew that his license was suspended and that his bail conditions
prohibited him from driving. Attorney Labanowsky was arrested
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No. 2013AP2836-D
and released on a cash bond, again with conditions prohibiting
possession or consumption of alcohol or the commission of any
crimes. He was charged with two counts of felony bail jumping
in connection with this incident. State v. Charles J.
Labanowsky III, Kenosha County Case No. 20l2-CF-975.
¶6 On February 4, 2013, a sheriff's deputy responded to
reports that Attorney Labanowsky was intoxicated at the Kenosha
County courthouse. Observers feared he might drive away
intoxicated. Upon questioning, Attorney Labanowsky denied
drinking. While the deputy went to check the status of his
driving privileges, Attorney Labanowsky drove away from the
scene. He was later apprehended and released on a cash bond,
again with conditions. He was charged with obstructing an
officer and two counts of bail jumping in connection with this
incident. State v. Charles J. Labanowsky III, Kenosha County
Case No. 20l3-CF-242.
¶7 On April 11, 2013, Attorney Labanowsky failed two
breathalyzer tests conducted by a community services agency.
Attorney Labanowsky posted a cash bond, again with conditions.
He was charged with two counts of felony bail jumping. State v.
Charles J. Labanowsky III, Kenosha County Case No. 2013-CF-461.
¶8 Finally, on the morning of May 16, 2013, police
responded to an anonymous tip that Attorney Labanowsky was
consuming alcohol at his residence in violation of his bond.
Attorney Labanowsky let the officers into his house and admitted
that he had been drinking alcohol in violation of his bond
conditions. Attorney Labanowsky's blood alcohol concentration
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No. 2013AP2836-D
level was tested and found to be .203. This time, Attorney
Labanowsky did not post bond and remained in custody. He was
subsequently charged with four counts of bail jumping in
connection with this incident. State v. Charles J. Labanowsky
III, Kenosha County Case No. 20l3-CF-536.
¶9 On June 20, 2013, Attorney Labanowsky entered a plea
agreement with respect to all five of the above-mentioned cases.
Attorney Labanowsky was found guilty and convicted of one count
of driving a motor vehicle while under the influence of an
intoxicant, 5th offense, in State v. Charles J. Labanowsky III,
Kenosha County Case No. 20l2-CF-470; one count of felony bail
jumping in State v. Charles J. Labanowsky III, Kenosha County
Case No. 20l3-CF-242; and two counts of bail jumping in State v.
Charles J. Labanowsky III, Kenosha County Case No. 2013-CF-536.
The remaining charges were dismissed but read in. Attorney
Labanowsky was sentenced to 36 months in prison followed by 36
months of extended supervision in the OWI matter; additional
sentences were imposed and stayed in the related cases. The OLR
is investigating possible violations of SCR 20:8.4(b) in
connection with the alcohol-related misconduct. No restitution
is requested.
¶10 The OLR is also investigating possible trust account
violations. In October 2008 the OLR learned of two possible
overdrafts on Attorney Labanowsky's client trust account. The
OLR reconstructed the trust account and ascertained that on
numerous occasions Attorney Labanowsky had disbursed funds from
the account on behalf of clients who either had no funds or had
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No. 2013AP2836-D
insufficient funds in the account to satisfy those
disbursements. In one matter, Attorney Labanowsky represented
P.C., the seller in a real estate transaction. Briefly stated,
Attorney Labanowsky disbursed $10,000 more to himself than he
was entitled to receive in connection with the transaction.
¶11 The OLR also discovered anomalies in a trust account
relating to the Estate of M.W. On April 1, 2009, the trust
account for the Estate of M.W. had a balance of $802.85, but the
client ledger indicated a balance of $23,669.06 should have been
on deposit for that matter. On April 29, 2009, Attorney
Labanowsky deposited $25,000 in law firm funds to the trust
account in order to make a $25,000 distribution relating to the
Estate of M.W. Attorney Labanowsky characterized that deposit
as a partial refund of his legal fees.
¶12 The OLR determined that on June 30, 2009, there should
have been $16,819.93 in trust for the Estate of M.W. but there
was only $6,568.42. In addition, Attorney Labanowsky had a
habit of leaving earned fees in the trust account for periods
ranging from 18 to 39 months and occasionally deposited earned
fees back to the trust account to cover shortfalls caused by the
conversion of funds belonging to one client for the benefit of
another client.
¶13 In late 2009, after reviewing the OLR's initial
findings relating to his trust account, Attorney Labanowsky
deposited additional personal and/or law firm funds into the
trust account to cover the shortfalls. He also disbursed earned
fees that had been held in trust for extended periods. The
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No. 2013AP2836-D
foregoing actions potentially violate SCR 20:8.4(c),
SCR 20:1.15(b) (1), SCR 20:1.15(b) (3), SCR 20:1.15(d) (1), and
SCR 20:1.15(f) (l)a., b. and g.
¶14 Attorney Labanowsky's petition for consensual
revocation states that he cannot successfully defend against the
allegations of professional misconduct set forth in the OLR's
summary of the matters being investigated. His petition asserts
that he is seeking consensual revocation freely, voluntarily,
and knowingly. He states that he understands he is giving up
his right to contest the OLR's allegations. He states that he
knows he has the right to counsel in this matter. The OLR
supports Attorney Labanowsky's petition for consensual license
revocation. See SCR 22.19(3). The OLR is not seeking
restitution.
¶15 Having reviewed Attorney Labanowsky's petition, the
OLR's summary of the matters it is investigating, and the OLR's
recommendation, we accept Attorney Labanowsky's petition for the
revocation of his license to practice law in Wisconsin. See
SCRs 22.19(1), (2), and (5). The seriousness of Attorney
Labanowsky's misconduct demonstrates the need to revoke his law
license to protect the public, the courts, and the legal system
from the repetition of misconduct; to impress upon Attorney
Labanowsky the seriousness of his misconduct; and to deter other
attorneys from engaging in similar misconduct. See In re
Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279
Wis. 2d 583, 694 N.W.2d 910. We accept the OLR's decision not
to seek a restitution order.
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No. 2013AP2836-D
¶16 Because Attorney Labanowsky petitioned for the
consensual revocation of his Wisconsin law license before the
appointment of a referee, and because the OLR has not requested
the imposition of costs, we do not assess the costs of this
disciplinary proceeding against Attorney Labanowsky.
¶17 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶18 IT IS FURTHER ORDERED that the license of Charles J.
Labanowsky III to practice law in Wisconsin is revoked,
effective the date of this order.
¶19 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Charles J. Labanowsky III shall comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been revoked.
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No. 2013AP2836-D
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