Office of Lawyer Regulation v. Parks (In Re Disciplinary Proceedings Against Daniel Parks) , 384 Wis. 2d 635 ( 2018 )

2018 WI 110SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP85-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Daniel Parks, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Daniel Parks,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST PARKS
OPINION FILED: December 13, 2018
SUBMITTED ON BRIEFS: September 26, 2018
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Peyton B. Engel and Hurley, Burish & Stanton S.C., Madison
For the complainant-respondent, there was a brief filed by
Brenda K. Sunby and the Office of Lawyer Regulation, Wausau
2018 WI 110NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP85-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Daniel Parks, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
DEC 13, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Daniel Parks,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Daniel Parks has appealed a
report filed by Referee William Eich concluding that Attorney
Parks committed eight of 14 alleged counts of professional
misconduct and recommending that Attorney Parks' license to
practice law in Wisconsin be suspended for 14 months, rather
than the two-year suspension sought by the Office of Lawyer
Regulation (OLR). The referee considered Attorney Parks'
objection to costs and recommends we impose the full costs of
No. 2016AP85-D
this proceeding on Attorney Parks. The OLR did not seek
restitution and the referee did not recommend a restitution
award.
¶2 In his appeal, Attorney Parks argues that the evidence
was insufficient to support many of the referee's factual
findings and all of the referee's conclusions determining
misconduct. Attorney Parks argues further that even if the
referee's conclusions are upheld, the violations only support a
license suspension of, at most, less than six months.1
¶3 Upon careful review of this matter, we uphold all of
the referee's findings of fact and conclusions of law and
conclude that a 14-month suspension of Attorney Parks' license
to practice law is an appropriate sanction for his misconduct.
We also deny Attorney Parks' objection to costs. We see no
reason to deviate from our usual custom, which is to require an
attorney who has committed misconduct to pay the full costs of
the proceeding, which are $42,226.26 as of July 6, 2018. The
OLR did not seek restitution and no restitution is ordered.
¶4 Attorney Parks was admitted to practice law in
Wisconsin in 1991. He has not previously been disciplined.
¶5 The allegations giving rise to this complaint stem
from the time Attorney Parks was employed at the firm of
Zacherl, O'Malley & Endejan (the firm), from 1995 until May
1
A suspension of less than six months does not require the
lawyer to undergo a formal reinstatement proceeding, which
includes a character and fitness inquiry. See SCR 22.28.
2
No. 2016AP85-D
2013. He worked in the Ripon office. In April 2013, Attorney
Parks announced he was leaving the firm. Following Attorney
Parks' departure, the firm filed a grievance with the OLR,
stating, among other things, that it had discovered that
Attorney Parks had performed unauthorized legal work "on the
side" ("non-firm work") while employed by the firm.
¶6 On January 12, 2016, the OLR filed a complaint against
Attorney Parks. Initially, the OLR alleged 19 counts of
misconduct. As the case proceeded, the OLR's complaint was
twice amended, ultimately alleging 14 counts of misconduct. The
first four counts involve allegations of unauthorized fee
reductions and non-firm work. Counts five through 13 allege
misconduct related to Attorney Parks' handling of several
matters related to C.D. and her relatives. Count 14 alleged
noncooperation with the OLR.
¶7 Attorney Parks filed an answer refuting most of the
allegations. The parties engaged in extensive discovery. Prior
to the evidentiary hearing, the parties filed stipulated facts.
The referee conducted a three day evidentiary hearing in October
2017 at which some 18 witnesses testified. The referee issued a
report on February 7, 2018, concluding that Attorney Parks
committed eight of the 14 alleged counts of misconduct, that OLR
had failed to prove six counts, and recommending a 14-month
license suspension. Attorney Parks objected to costs. The
referee issued a separate ruling, concluding that full costs
were warranted. Attorney Parks appeals. The OLR did not cross-
appeal.
3
No. 2016AP85-D
¶8 On appeal, we consider whether the referee's findings
are clearly erroneous. See In re Disciplinary Proceedings
Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636
N.W.2d 718. We independently review the referee's legal
conclusions. Id.¶9 At the onset we note that the partners at his former
firm and C.D.'s relatives present a very different account of
what transpired than Attorney Parks recounts. Attorney Parks
characterizes the grievances against him as a "vindictive"
collaboration between a partner at Attorney Parks' former law
firm, Attorney Z., and Attorney Parks' former client, C.D.'s
daughter, L.E. He contends that L.E. "is resentful over her own
tumultuous relationship with her mother" and that Attorney Z.
resents that Attorney Parks left the firm to start his own
competing practice. This record is replete with accusations of
lying; many of the issues turn on credibility assessments.
¶10 Credibility issues are left to the discretion of the
trial court, or, in the case of a disciplinary proceeding, the
referee. Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260
N.W.2d 30 (1977). In this matter, the referee's credibility
determinations are intertwined with his findings of
fact. See In re Disciplinary Proceedings Against Charlton, 174
Wis. 2d 844, 498 N.W.2d 380 (1993). Many of the referee's
conclusions rest on implicit findings about the relative
credibility of witnesses. When a court does not make an
explicit finding, an implicit finding may suffice, but only if
4
No. 2016AP85-D
the facts of record support it. State v. Echols, 175
Wis. 2d 653, 672, 499 N.W.2d 631 (1993).
Non-firm work and fee reductions (Counts One-Four)
¶11 The OLR alleged that that by engaging in self-dealing
and misappropriating fees from the firm by performing and
privately billing for non-firm legal work while employed by the
firm, Attorney Parks violated SCR 20:8.4(c)2 (Count One).
¶12 The referee concluded that the OLR established this
allegation. Attorney Parks admits in the stipulated facts that
he performed legal work for approximately 30 clients "on the
side," collected at least $13,875 in fees, and deposited the
fees into his personal account. Attorney Parks also admits he
did not run conflicts of interest checks through the firm's
client management software. The referee acknowledged but was
clearly unpersuaded by Attorney Parks' assertion that one of the
firm's partners gave him permission to handle some estate work
"off the books." The referee noted that "files found on the
firm's computer involved, among other things, small claims
cases, contract and traffic cases, and custody disputes in
addition to wills, that Parks handled and [Attorney Z.] denies
giving any such permission."
¶13 Attorney Parks attacks several aspects of the
referee's findings and his legal conclusion that Attorney Parks
2
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
5
No. 2016AP85-D
violated SCR 20:8.4(c). As he argued to the referee, Attorney
Parks maintains that one of the firm's partners, Attorney Z.,
was well aware of Attorney Parks' non-firm work and, indeed,
approved it. Attorney Parks claims this practice began in 2005,
when one of Attorney Z's own clients could not pay a large legal
bill so an arrangement was made whereby the client did
remodeling work on Attorney Parks' home and Attorney Parks, in
turn, paid the firm to reduce the client's outstanding legal
balance. Attorney Parks claims this bartering plan went awry,
and Attorney Parks took out a home equity loan to complete the
project, which Attorney Z. co-signed.
¶14 Attorney Parks claims that over time, Attorney Z.
regretted having co-signed the loan and that Attorney Z.
encouraged Attorney Parks to conduct non-firm estate planning
work so that Attorney Parks could earn extra money with which to
accelerate his efforts to refinance the loan.
¶15 Attorney Z. flatly denied that he authorized Attorney
Parks to engage in non-firm work. The firm's other partner,
Attorney O., also denied authorizing any non-firm work.
¶16 Attorney Parks says that the referee's finding that
files pertaining to outside work were found "on the firm's
computer" is clearly erroneous. He maintains that all such
files were kept on a computer belonging to Attorney Parks'
acquaintance, C.D., so there would have been no such files on
the firm's computer.
¶17 Post-briefing, the referee advised the court and the
parties in writing that his reference to files on "the firm's
6
No. 2016AP85-D
computer" was indeed a "minor factual error" and that the report
should be amended to clarify that the documents in question were
found on C.D.'s computer, not the firm's computer.
¶18 As corrected, the referee's finding of fact is not
clearly erroneous. Moreover, we are of the opinion that in
making this finding, the referee was focused less on where files
were found (although that is relevant to other allegations) and
more on noting that even if Attorney Z. had authorized Attorney
Parks to engage in some non-firm estate work, Attorney Parks
clearly engaged in other non-firm work that exceeded the scope
of any authorization.
¶19 Attorney Parks also complains that the referee made
only an "implicit" credibility determination and says the facts
of record do not support it. He maintains that Attorney Z. is
engaged in "serial dissembling" and points to evidence he
believes supports this claim.
¶20 For example, Attorney Parks notes that Attorney Z.
initially told the OLR that Attorney Parks made a deal with a
client, M.W., to reduce M.W.'s legal fees in exchange for M.W.
creating a legal website for Attorney Parks. The OLR's first
7
No. 2016AP85-D
complaint alleged misconduct related to this incident but
dropped the charge when the complaint was amended.3
¶21 The referee noted that both partners denied giving
Attorney Parks permission to engage in non-firm work. Although
Attorney Parks argues that the referee failed to give adequate
weight to his evidence, the referee clearly weighed the
credibility of Attorney Parks' testimony and found it wanting.
We will not reassess Attorney Parks' credibility. We conclude
that the record supports the referee's findings and conclusion
pertaining to count one and we accept them. See In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747.
¶22 Turning to count two, the referee concluded, based
primarily on Attorney Parks' own stipulated admission, that by
earning fees from non-firm legal work, Attorney Parks violated a
standard of conduct set forth in In re Disciplinary Proceedings
3
The website came to the firm's attention when it tried to
collect outstanding legal fees from M.W. M.W. indicated that he
had created a website in an effort to offset his legal fees.
The website prominently featured Attorney Parks, barely noted
his affiliation with the firm, and implied Attorney Parks was
offering financial consulting services at the firm's Ripon
office. Although Attorney Parks disavowed any knowledge of the
website, denied asking M.W. to create it, and took steps to
remove it, this incident clearly sowed seeds of distrust between
the partners and Attorney Parks.
8
No. 2016AP85-D
Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995), actionable
via SCR 20:8.4(f).4 (Count Two).
¶23 Attorney Parks disputes the referee's conclusion that
he violated SCR 20:8.4(f) for the same reasons he disputes that
he committed the misconduct alleged in count one; he maintains
that Attorney Z. authorized him to perform non-firm work.
Again, this turned on a credibility determination, albeit an
implicit one, that we will not disturb. It is sufficiently
supported by the record.
¶24 Counts three and four of the second amended complaint
allege that Attorney Parks made unauthorized fee reductions,
and/or accepted services that benefitted him personally in
exchange for a reduction of legal fees, at the firm's expense.
Specifically, the OLR alleged that: (1) in 2012, Attorney Parks
reduced client M.W.'s legal fee by $3,122.70 without firm
approval; (2) Attorney Parks agreed to reduce client R.C.'s
4
SCR 20:8.4(f) provides: "It is professional misconduct to
violate a statute, supreme court rule, supreme court order or
supreme court decision regulating the conduct of lawyers."
In In re Disciplinary Proceedings Against Shea, 190
Wis. 2d 560, 527 N.W.2d 314 (1995), Attorney Shea sent a client
for whom he had performed legal work two separate bills, one
payable to the law firm, the other——for $75,000——payable
directly to Attorney Shea. Both were paid. It appeared to the
firm that an unbilled balance remained. Attorney Shea then
represented to his firm that the (apparently) unbilled fees
should be discounted, implying that the client was unhappy with
an associate's performance. The court concluded that by
concealing from the firm that he had personally received funds
from a client while the firm was not being paid in full for
legal fees, the lawyer violated SCR 20:8.4(c).
9
No. 2016AP85-D
attorney fees in exchange for R.C. performing remodeling work on
Attorney Parks' home; and (3) Attorney Parks agreed to credit
legal fees owed by client H.W. in exchange for H.W. doing body
work on Attorney Parks' car.5
¶25 The referee concluded, based specifically on the
testimony of R.C. and H.W., that Attorney Parks engaged in self-
dealing in violation of SCR 20:8.4(c) (Count Three) by
collaborating with R.C. and H.W. for them to perform remodeling
and auto work in exchange for a reduction of legal fees owed to
the firm. The referee also concluded that Attorney Parks
violated the standard of conduct set forth in In re Disciplinary
Proceedings Against Shea, 190 Wis. 2d 560, actionable via
SCR 20:8.4(f) (Count Four).
¶26 In alleging count four the OLR referenced three
incidents: the write down of M.W.'s fee, exchanging fees for
remodeling services with R.C., and exchanging fees for auto body
work with H.W. In reaching his conclusion regarding count four,
the referee focused only on the write down of M.W.'s fee. The
referee acknowledged Attorney Parks' version of events but
clearly found credible and relied on the testimony of both
5
Attorney Parks notes that unlike Shea, he was not a
partner, and he was not subject to an employment contract with
the firm that provided that "all fees, compensation, and other
things of value received or realized as a result of the
rendition of professional legal services by [him] in any
capacity . . . shall belong to the [firm] whether paid directly
to [him] or to the [firm]."
10
No. 2016AP85-D
Attorneys Z. and O., that Attorney Parks did not have authority
to write down a substantial amount of legal fees, and concluded
that Attorney Parks thus violated SCR 20:8.4(f).6
¶27 Attorney Parks refutes these conclusions and says the
referee's implicit determination that these witnesses are
credible is belied by other record evidence. Attorney Parks
admits that he reduced M.W.'s fee, but maintains he was
authorized to do so and was transparent about it. He says the
fee reduction was recorded in the firm's billing system so there
was no "concealment."
¶28 Attorney Parks contends that although he was not a
partner, the firm was run——to quote Attorney Parks' former legal
secretary——like "a group of solo practitioners all housed under
the same roof." As such, he says that he had discretion over
the cases he accepted and over fees, and that he had authority
to authorize fee reductions. He says there was no firm policy
prohibiting fee reductions. He cites corroborating testimony
from other firm staff members who also reported reducing fees
without permission.
¶29 Moreover, he says that, as a factual matter, he did
not reduce R.C. or H.W.'s fees in exchange for services. He
says R.C.'s affidavit is "preposterous" "incoherent and
incredible" and that the record evidence, namely cancelled
6
The referee did not make a specific finding or conclusion
as to R.C. and H.W. on count four, but the findings he did make
are sufficient to establish a violation of SCR 20:8.4(f).
11
No. 2016AP85-D
checks and the testimony of his former wife, shows he paid R.C.
for the work performed on his home. He alleges that both R.C.
and H.W. lied in their affidavits, in exchange for fee
reductions that were offered by the firm, not by him. Again, he
says that his evidence is more credible than the opposition and
that the referee improperly focused on whether he had permission
to write down fees rather than the alleged misconduct, which
turned on whether he traded fee discounts for personal work
which, again, he asserts he did not.
¶30 The referee's findings implicitly accept, as credible,
the testimony of Attorney Z. and Attorney O. and the testimony
of the two clients, each of whom contradicted Attorney Parks'
account of what transpired. The record evidence indicates that
Attorney Parks was an associate, the firm paid the overhead, he
was paid a percentage of his billings, and he needed approval to
authorize a significant fee reduction. We accept the referee's
findings and conclusions of law regarding counts three and four.
Counts Five-13: Interactions with C.D. and her relatives
¶31 The OLR alleged nine counts of misconduct relating to
Attorney Parks' interactions with C.D. and her relatives. The
referee concluded that Attorney Parks committed the misconduct
alleged in four of the nine counts.
¶32 Attorney Parks and C.D. became acquainted in the early
1990s. Their lives were interconnected until her death in May
2013. Attorney Parks represented C.D. in a divorce in 1996 and
in a personal injury claim in 2008. He reviewed documents
12
No. 2016AP85-D
regarding a loan C.D. made to her daughter, and answered her
legal questions on occasion.
¶33 Attorney Parks also occasionally used C.D.'s computer
for his own work and, although he disputes it, there is record
evidence that C.D. did some secretarial work for Attorney Parks.7
Attorney Parks was a landlord and rented a home to C.D.
beginning in 2008 until her death. In 2010, Attorney Parks and
his then-wife borrowed $35,000 as an unsecured loan from C.D.
Attorney Parks says that as C.D. became ill, he served as C.D.'s
Power of Attorney, took her to medical appointments, and visited
her at home and after she moved to a nursing home.
¶34 Attorney Parks was also close friends with C.D's
daughter, L.E., and her husband, T.E. Attorney Parks
represented T.E. in a personal injury case, wrote two wills for
the couple, and was the best man at their wedding. Attorney
Parks says that the relationship between mother (C.D.) and
daughter (L.E.) was characterized by ongoing conflict and
tension, in part because of a failed trucking business.
Attorney Parks was also acquainted with C.D.'s sister, G.S., who
is L.E.'s aunt. Attorney Parks represented G.S. in a divorce
proceeding in 2011 and 2012.
The $5,000 "Bonus" (Counts Five and Six)
7
C.D.'s medical records indicate that C.D. told three
healthcare professionals that she did work for Attorney Parks until
she entered a nursing home. C.D.'s sister, daughter, and son-in-
law also testified that C.D. did legal work for Attorney Parks.
13
No. 2016AP85-D
¶35 Attorney Parks represented T.E. in a personal injury
case. The firm's standard contingency fee agreement provided
that the firm would receive 33 percent of any recovery for
attorney fees. The OLR alleged that at the time of settlement,
without authorization from the firm, Attorney Parks unilaterally
reduced the attorney fees from 33 percent to 25 percent, a
$12,000 fee reduction.
¶36 T.E. and L.E. claim that thereafter, Attorney Parks
mentioned, on some three occasions, that clients sometimes gave
him a bonus. Then, during the meeting to obtain their
settlement money, Attorney Parks asked about "his $5,000 bonus."
There was testimony that the couple had little money at this
time, but felt compelled to give him the requested bonus. L.E.
said that she wrote a $5,000 check and handed it to Attorney
Parks. He handed it back and asked that she write "gift" on the
memo line, which she did. The fee reduction and "gift" meant
the firm received $33,000 in legal fees instead of $45,000.
¶37 The referee concluded that Attorney Parks violated
SCR 20:8.4(c) by unilaterally and without authorization reducing
the firm's attorney fees, and by seeking and accepting an
unauthorized $5,000 "gift" from L.E. and T.E. (Count Five). The
referee concluded further that by engaging in self-dealing after
seeking and accepting a "gift" from L.E. and T.E. in exchange
for a reduction of legal fees owed to the firm, Attorney Parks
violated a standard of conduct set forth in Shea, actionable via
SCR 20:8.4(f) (Count Six).
14
No. 2016AP85-D
¶38 Attorney Parks appeals these findings and conclusions.
He reiterates that he had authority to unilaterally reduce legal
fees especially where, as here, he thought it was necessary to
facilitate the settlement. He points to an anecdote from a
legal assistant who once suggested to a partner that Attorney
Parks should reduce a fee for another client and the partner
said he would not "force the reduction of fees." Attorney Parks
says this confirms that he had fee setting authority. He
insists that the check was an unsolicited gift, as evidenced by
his own testimony and that of his former wife, who thanked the
couple.
¶39 With respect to count six, Attorney Parks suggests
that unlike the lawyer in Shea, he was not a partner at the firm
and there was no firm policy to violate, so his only duty to the
firm was a duty of loyalty. He says he did not violate that
duty by making a reasonable judgment call to reduce a fee in
order to facilitate a settlement that might otherwise have
failed. Attorney Parks maintains that there is no evidence that
he arranged the gift in exchange or as a quid pro quo for the
fee reduction. So, Attorney Parks contends that the referee's
conclusion, that he violated SCR 20:8.4(f), is wrong.
¶40 A review of the record demonstrates that in this
instance, the referee clearly believed the testimony of L.E. and
T.E., noting that they were in "dire financial straits" when
they received their settlement and that both testified that the
"gift" was not their idea, they did not offer it, and felt they
needed to pay it to receive their settlement. Both of the
15
No. 2016AP85-D
firm's partners testified that the fee reduction was not
authorized.
¶41 The referee also rejected Attorney Parks' suggestion
that counts five and six are duplicative, explaining that count
five addresses Attorney Parks' misconduct vis a vis his client,
while count six pertains to his misconduct vis a vis his duty of
loyalty to his firm.
¶42 We adopt the referee's findings of fact and
conclusions of law with respect to these two counts. Although
mindful of Attorney Parks' defense, we cannot conclude that the
referee's findings, particularly since they rely heavily on the
credibility of the witnesses, are clearly erroneous. The
findings indicate that Attorney Parks unilaterally and without
authority reduced the legal fees that would be paid to the firm
then essentially recouped his own portion of that reduction by
persuading the clients to pay him a bonus. The record is
sufficient to support the referee's findings and conclusions on
these counts and we accept them.
Loan from C.D. (Count Seven)
¶43 The referee concluded that the OLR failed to establish
that Attorney Parks violated SCR 20:1.8(a) and (b)8 when he
8
SCR 20:1.8(a) provides:
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(continued)
16
No. 2016AP85-D
borrowed $35,000 from C.D. without proper disclosures. Attorney
Parks argued that C.D. was not his client when this transaction
occurred. The OLR did not demonstrate otherwise and has not
appealed the referee's conclusion. We therefore conclude that
the referee's findings with respect to this count have not been
shown to be clearly erroneous. We accept the referee's findings
and conclusion and dismiss count seven.
Confidentiality (Count 8)
¶44 After C.D.'s death, her daughter, L.E., obtained
C.D.'s computer and discovered that it contained several client
files and documents that she was able to access without a
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in
writing in a manner that can be reasonably understood
by the client;
(2) the client is advised in writing of the
desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal
counsel on the transaction; and
(3) the client gives informed consent, in a
writing signed by the client, to the essential terms
of the transaction and the lawyer's role in the
transaction, including whether the lawyer is
representing the client in the transaction.
(b) A lawyer shall not use information relating
to representation of a client to the disadvantage of
the client unless the client gives informed consent,
excepted as permitted or required by these rules.
17
No. 2016AP85-D
password.9 L.E. gave the computer to the firm, which, in turn,
notified the OLR.
¶45 The OLR alleged that, by working on client files on
C.D.'s computer, Attorney Parks allowed C.D. access to client
files at a time when C.D. was not working for the firm. The OLR
further alleged that the clients did not give informed consent
for non-employees to have access to their files, all in
violation of SCR 20:1.6(a)10 (Count Eight).
¶46 The referee concluded that the OLR established by
clear and convincing evidence that Attorney Parks violated
SCR 20:1.6(a). The referee rejected Attorney Parks' suggestion
that the OLR had not shown that C.D. actually looked at the
unprotected client files.
¶47 Attorney Parks appeals. He acknowledges that leaving
client files without password protection on a non-firm
employee's computer was not a proper practice to ensure client
9
The complaint alleged that documents on C.D.'s computer
included a Healthcare Power of Attorney document for a client we
refer to as C.S., that included C.S.'s name, address, and the
names of the client's designated health care agents. It also
contained a beneficiary designation for a cl ien t we r efe r to
as B .T ., th at inc lu de d the full legal names and social
security numbers of the client's six designated beneficiaries.
10
SCR 20:1.6(a) provides: "A lawyer shall not reveal
information relating to the representation of a client unless
the client gives informed consent, except for disclosures that
are impliedly authorized in order to carry out the
representation, and except as stated in pars. (b) and (c)."
Paragraphs (b) and (c) encompass necessary disclosures that are
not implicated here.
18
No. 2016AP85-D
confidentiality. However, he reiterates there is no evidence
that C.D. actually looked at the documents and suggests that the
fact that L.E. "found" them does not equate with his "revealing
them." Therefore, he claims the record does not support the
claim, as alleged. We are not persuaded and agree that the
facts, as alleged and as found by the referee, are sufficient to
establish that Attorney Parks violated SCR 20:1.6(a).
Drafting C.D.'s will (Count Nine)
¶48 The referee concluded that the OLR failed to prove
that Attorney Parks violated SCR 20:1.7(a)(2)11 by providing C.D.
11
SCR 20:1.7(a)(2) provides:
(a) Except as provided in par. (b), a lawyer
shall not represent a client if the representation
involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's responsibilities to
another client, a former client or a third person or
by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent
conflict of interest under par. (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the
assertion of a claim by one client against another
client represented by the lawyer in the same
litigation or other proceeding before a tribunal; and
(continued)
19
No. 2016AP85-D
with assistance drafting her will when, knowing he was a
beneficiary, there was a "significant risk that his
representation was materially limited by his personal
interests." The referee found that while Attorney Parks gave
the firm's will template to C.D., there was no evidence Attorney
Parks actually assisted C.D. in drafting her will. This finding
has not been shown to be clearly erroneous and we accept the
referee's conclusion. Count nine is dismissed.
Purchasing C.D.'s car (Count Ten)
¶49 The referee concluded that the OLR failed to prove
that Attorney Parks violated SCR 20:8.4(c) by using his power of
attorney to effectuate the transfer of the title of C.D.'s
vehicle to Attorney Parks, in contravention of the terms of her
will, while C.D. was allegedly incompetent. The OLR focused on
the statement of C.D.'s physician that "it is more likely than
not that C.D. was not competent" when she signed the vehicle
title. The referee, however, observed that this was not "clear
and convincing" evidence which is needed to establish the
alleged disciplinary violation. This finding has not been shown
to be clearly erroneous. We accept the referee's conclusion and
dismiss count ten.
Rent payment (Count 11)
(4) each affected client gives informed consent,
confirmed in a writing signed by the client.
There is no assertion that SCR 20:1.7(b) applies
here.
20
No. 2016AP85-D
¶50 The referee concluded that the OLR also failed to
prove that Attorney Parks violated SCR 20:8.4(c) when, the day
before C.D. died, Attorney Parks used his power of attorney to
write himself a $1,500 check from C.D.'s account to pre-pay
himself for upcoming June and July 2013 rental payments.
Relying in part on the expert testimony of Attorney Mark Munson
regarding the appropriate conduct of a power of attorney, the
referee was persuaded that on this record, although the conduct
was "questionable," there was no showing that Attorney Parks'
action adversely affected anyone's interests. C.D.'s belongings
remained in the rental property during June and July and T.E.
and L.E. stayed in the property during that time. This finding
has not been shown to be clearly erroneous and we accept the
referee's conclusion; count 11 is dismissed.
Release (Count 12)
¶51 The OLR alleged and the referee agreed that Attorney
Parks committed fraud, deceit or misrepresentation in violation
of SCR 20:8.4(c) by the manner in which he obtained the
signatures of L.E. and G.S. on a "release," and the terms of the
release he drafted relating to C.D.'s will.
¶52 C.D. designated her sister, G.S., and Attorney Parks
as the primary beneficiaries of her will. C.D.'s will provided
that Attorney Parks was to receive 40 percent of her payable on
death accounts and 40 percent forgiveness of the balance of the
$35,000 loan from C.D. She also left Attorney Parks her "rifle,
outdoor furniture, tools, air compressor, John Deere tractor,
push mower, chain saw, and rototiller."
21
No. 2016AP85-D
¶53 The will provided that G.S. was to receive 60 percent
of C.D.'s payable on death accounts, C.D.'s vehicle, and what
was left on Attorney Parks' loan (after the partial forgiveness)
which was then about $21,351. The will forgave a loan to L.E.
but otherwise excluded her daughter.
¶54 C.D. died in May 2013. A few weeks later, G.S. and
L.E. met with Attorney Parks to discuss C.D.'s estate. Both
G.S. and L.E. testified that they thought Attorney Parks
represented them in connection with the estate. Attorney Parks
testified that he told them both, verbally, that he was not
acting as their attorney, but "regrettably I didn't send them a
letter."
¶55 On May 24, 2013, the three met at a bank to finalize
distribution of C.D.'s bank accounts. There, Attorney Parks
asked them each to sign, and both G.S. and L.E. did sign, a
document entitled "Full and Final Settlement & Release of All
Claims." Both testified that they believed the document was
necessary to close out the bank accounts. The "release" which
was drafted by Attorney Parks provided that:
 G.S. and L.E. both released and discharged all claims and
liabilities against Attorney Parks that may exist now or in
the future regarding all sums that he (and his wife, etc.)
may have owed to C.D. or her estate in any form known or
unknown, including, but not limited to, contractual or due
to his role as power of attorney for C.D.
 They agreed that no probate would be initiated by any of
them.
22
No. 2016AP85-D
 They agreed that they had divided the personal property and
that they were satisfied with the division.
 G.S. would receive Attorney Parks' share of C.D.'s payable-
on-death accounts.
 G.S. had to pay the funeral bill and any other of C.D.'s
debts.
¶56 Essentially, this document released Attorney Parks
from all liability, permitted him to keep whatever personal
property he had received from C.D., and excused him from
repaying the balance of his loan which was at least $21,351. In
exchange, G.S. received all of the payable on death money, which
was some $28,872.19.
¶57 The OLR alleged that as a result of this document,
G.S. received $1,261.72 less than she was entitled to receive
and she did not receive C.D.'s vehicle because that had been
sold——by Attorney Parks to himself——shortly before C.D. died.12
¶58 The referee found that Attorney Parks failed to tell
L.E. that he did not represent her or G.S., and failed to tell
them that they should seek the advice of another attorney
because he had an interest in the estate. The referee concluded
that Attorney Parks' conduct pertaining to the release
constituted misconduct that violated SCR 20:8.4(c).
12
Attorney Parks states that he paid $15,000 for the
vehicle and deposited those funds into C.D.'s accounts which, in
turn, went to G.S.
23
No. 2016AP85-D
¶59 Attorney Parks appeals. He maintains that the release
reflected the three beneficiaries' agreement among themselves.
He explained that G.S. wanted a car but did not want C.D.'s car
so there was no conflict over his purchase of the vehicle. He
adds that G.S. wanted a lump sum of cash, not years of modest
monthly loan payments from Attorney Parks, hence the decision to
forgive his loan but give G.S. all the payable on death
accounts.
¶60 As evidence that G.S. and L.E. acceded to this
agreement, Attorney Parks notes that L.E. brought a death
certificate to the bank and that he wrote "per agreement" on a
check he signed over to G.S. He says he did not threaten or
force anyone and says that he did not tell L.E. she had to sign.
He claims the fact he gave them copies of the release reflects
his transparency. He claims that no one suffered any ill effect
as a result of this document, but concedes that, because he was
a beneficiary, it was a "poor decision." However, he says that
there was no deceit, so there was no violation of SCR 20:8.4(c).
¶61 We are not persuaded. The referee clearly accepted
the testimony of the two women that they neither fully
understood what the "release" provided nor understood why they
were signing it. Inducing G.S. and L.E., in the immediate
aftermath of the death of their sister and mother, to sign a
patently self-serving document designed to insulate himself from
liability at the potential expense of G.S. was more than a "poor
decision." We wholly agree with the referee's conclusion that
24
No. 2016AP85-D
"Parks' conduct in this regard involved 'dishonesty, fraud,
deceit or misrepresentation' within the meaning of the Rule."
Conflict (Count 13)
¶62 The referee concluded that the OLR failed to prove
that Attorney Parks violated SCR 20:1.7(a)(2) based on the
theory that he was representing G.S. and L.E. in May 2013 when
they were finalizing C.D.'s estate. While the two women may
have thought Attorney Parks was representing their interests as
related to C.D.'s estate, the referee found that there was no
evidence that Attorney Parks was providing legal services to
G.S. at that time, and L.E.'s own testimony indicated she did
not consider him her lawyer at that time. These findings have
not been shown to be clearly erroneous and we accept the
referee's conclusion. Count 13 is dismissed.
Non-cooperation (Count 14)
¶63 The referee also concluded that the OLR failed to
prove that Attorney Parks violated SCR 22.03(2)13 and
13
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.
25
No. 2016AP85-D
SCR 22.03(6),14 enforced via SCR 20:8.4(h)15 by failing to
cooperate with the OLR (Count 14). The OLR pointed to certain
issues, such as Attorney Parks' failure to provide certain
client names or a list of non-firm files on which he worked.
The referee disagreed, finding that at most "Parks was guilty of
some inconsistencies in his responses to the committee's
inquiries . . .." This finding has not been shown to be clearly
erroneous and we accept the referee's conclusion. Count 14 is
dismissed.
¶64 We accept the referee's factual findings and
conclusions of law and agree that Attorney Parks committed the
professional misconduct alleged in counts one through six,
eight, and 12 of the OLR's second amended complaint. We dismiss
counts seven, nine, 10-11, and 13-14.
Recommended Discipline
¶65 Attorney Parks contends that the recommended
discipline——a 14-month license suspension——is excessive, even if
the referee's conclusions relating to misconduct are upheld.
14
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."
15
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(2), SCR 22.03(6),
or SCR 22.04(1)."
26
No. 2016AP85-D
Attorney Parks argues that his misconduct is not so serious that
he should be required to petition for reinstatement and prove
his moral character and fitness to practice law. Attorney Parks
argues that a license suspension of less than six months is
sufficient. The OLR maintains that "Parks' pervasively
dishonest conduct merits a lengthy suspension, whether that be
the two-year suspension it had recommended, [or] the 14 month
suspension recommended by the referee."
¶66 Ultimately, it is this court's responsibility to
determine appropriate discipline. See In re Disciplinary
Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694
N.W.2d 894. This court considers the seriousness, the effect on
the legal system of repetition of misconduct, the need to
impress upon the attorney the seriousness of the 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.
¶67 Although no two disciplinary cases are exactly alike,
cases in which lawyers collect fees from clients that they did
not report to their firm, and multiple violations of SCR 20:8.4
(Misconduct) typically result in lengthy license suspensions.
¶68 Recently, we agreed that a one-year suspension was
appropriate discipline for a lawyer, with no prior discipline,
who committed two counts of misconduct in violation of
SCR 20:8.4(c) and 20:8.4(f), for directly accepting compensation
for consulting services, without notice to her firm. In re
27
No. 2016AP85-D
Disciplinary Proceeding Against Trupke, 2018 WI 43, 381
Wis. 2d 136, 911 N.W.2d 361.
¶69 We also deem instructive In re Disciplinary
Proceedings Against Brown, 2005 WI 49, 280 Wis. 2d 44, 695
N.W.2d 295. Attorney Brown was suspended 18 months for, inter
alia, accepting fees from clients totaling some $16,000 while
advising his firm that he was acting pro bono. See also In re
Disciplinary Proceedings Against Koenig, 2015 WI 16, 361
Wis. 2d 16, 859 N.W.2d 105 (imposing two-year suspension for
taking $39,920 in client fees that were owed to his firm); In re
Disciplinary Proceedings Against Elverman, 2008 WI 28, 308
Wis. 2d 524, 746 N.W.2d 793 (imposing nine-month suspension on
attorney for failing to report substantial co-trustee fees to
his firm); In re Disciplinary Proceedings Against Schaller, 2006
WI 40, 290 Wis. 2d 65, 713 N.W.2d 105 (imposing two-year
suspension for converting $4,290.85 from firm and failing to
report income on tax returns). None of these cases resulted in
discipline less than six months. There is more than sufficient
support for the imposition of a 14-month license suspension
here.
¶70 We are not persuaded by Attorney Parks' reference to
In re Disciplinary Proceedings Against Curtis, 2018 WI 13, 379
Wis. 2d 521, 907 N.W.2d 91. In that case, the OLR initially
alleged seven counts of misconduct. We concluded that the
lawyer committed only four counts of misconduct involving trust
account violations and tax evasion. Attorney Curtis was
suspended for four months. The facts were quite different; it
28
No. 2016AP85-D
is not a compelling example. There, in imposing discipline the
court was mindful that Attorney Curtis had served prison time
for tax evasion during which he was unable to practice law.
Also, the court determined that the trust account violations
were not intentional, did not involve misrepresentation or
dishonesty, and he did not personally benefit from them. By
contrast, here Attorney Parks was determined to have committed
four separate counts of misconduct involving fraud, deceit or
misrepresentation. We conclude that a 14-month license
suspension is appropriate. No restitution will be ordered.
Objection to Costs
¶71 Attorney Parks filed an objection to the OLR's pre-
appellate statement of costs and also objected to the OLR's
appellate costs. Attorney Parks reasons that he was exonerated
on six of the 14 counts alleged against him and contends that
the OLR "overcharged" the case. He asks the court to impose
only 25 percent of the costs upon him. He argues that he should
not have to "foot the bill" for the OLR's prosecution of conduct
that didn't violate the supreme court rules. Attorney Parks
points to In re Disciplinary Proceedings Against Arellano, 2013
WI 24, ¶52, 346 Wis. 2d 340, 827 N.W.2d 877, for the proposition
that when the OLR drops charges prior to the evidentiary
hearing, some reduction in costs is warranted.
¶72 It is true that Attorney Parks prevailed on six of the
14 counts alleged, but this court generally does not apportion
costs based on the number of counts charged and/or proven. In
re Disciplinary Proceedings Against Polich, 2005 WI 36, 279
29
No. 2016AP85-D
Wis. 2d 266, 694 N.W.2d 367 (declining to reduce costs where the
respondent prevailed on five of the seven counts brought against
him).
¶73 While there are exceptions, such as Arellano, this is
not one of them. Attorney Arellano was charged with 14 counts
of misconduct and the OLR sought revocation of his law license.
Before the hearing the OLR dismissed nine counts. Attorney
Arellano was ultimately determined to have committed only two
counts of misconduct and received a public reprimand. The OLR
agreed that a cost reduction was appropriate in that case.
¶74 In exercising our discretion regarding the assessment
of costs, we consider the submissions of the parties and the
following factors: (a) the number of counts charged, contested,
and proven; (b) the nature of the misconduct; (c) the level of
discipline sought by the parties and recommended by the referee;
(d) the respondent's cooperation with the disciplinary process;
(e) prior discipline, if any; (f) other relevant circumstances.
See SCR 22.24(1m).
¶75 Applying these factors, we are not persuaded that a
reduction in fees is warranted here. We acknowledge that, after
more than 25 years in practice, Attorney Parks has no prior
discipline. We consider that the OLR alleged but failed to
prove that Attorney Parks was uncooperative with the OLR.
¶76 The other factors do not weigh in support of a cost
reduction. The OLR alleged 14 counts of misconduct. Attorney
Parks contested them all. The referee ultimately concluded, and
we agree, that Attorney Parks committed eight counts of
30
No. 2016AP85-D
misconduct. The OLR sought a two-year suspension while Attorney
Parks argued that a suspension of less than six months was
appropriate. The referee recommended and we accept a 14-month
license suspension.
¶77 In the Arellano case, we observed that the ultimate
misconduct found and discipline imposed were not only much less
than initially sought, but were also of a materially different
nature. Here, although Attorney Parks was exonerated on a
number of claims pertaining to his dealings with C.D., he was
nonetheless deemed to have committed four separate violations of
SCR 20:8.4(c), involving fraud, deceit or misrepresentation.
¶78 Attorney Parks litigated this case vigorously as is
his right. That, more than any strategy on the part of the OLR,
is the reason for the high costs. The referee concluded and we
agree that Attorney Parks has not established that the amounts
included for counsel and referee fees, reporting and transcript
costs, copying, and medical records fees, were either
"unreasonable," or "unnecessary."16 We thus find no reason to
16
Attorney Parks specifically objects to the $3,014 in
expert witness fees paid to the OLR's witness, Attorney Mark
Munson. He points out that while Attorney Munson testified as
to eight counts of the original complaint, much of his testimony
was that he had reached no relevant conclusions on the points at
issue. Attorney Munson was not called to testify at the
hearing. The OLR says that its retention of Attorney Munson,
whether he served as a "testimonial expert" or a "consulting
expert," was "part and parcel of OLR's overall litigation of
this case." Supreme Court Rule 22.001(3) specifies that the
costs of proceedings include "expert witness fees," and
"compensation and reasonable expenses of experts." The OLR adds
that it found Attorney Munson's opinions valuable.
31
No. 2016AP85-D
depart from our general practice of imposing full costs on
attorneys deemed to have committed misconduct. See SCR 22.24.
¶79 IT IS ORDERED that the license of Daniel Parks to
practice law in Wisconsin is suspended for a period of 14
months, effective January 24, 2019.
¶80 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Daniel Parks shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $42,226.26,
as of July 6, 2018.
¶81 IT IS FURTHER ORDERED that Daniel Parks 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.
32
No. 2016AP85-D
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