Office of Lawyer Regulation v. Patrick S. Sweeney ( 2019 )

2019 WI 13
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1370-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Patrick S. Sweeney, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Patrick S. Sweeney,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST SWEENEY
OPINION FILED: February 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 13
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1370-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Patrick S. Sweeney, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
FEB 19, 2019
v.
Sheila T. Reiff
Clerk of Supreme Court
Patrick S. Sweeney,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. We review the recommendation of the
referee, James C. Boll, that Attorney Patrick S. Sweeney's
license to practice law should be revoked due to his
professional misconduct. The referee also recommended that
Attorney Sweeney be ordered to pay restitution consistent with
the terms of an order imposed in a related criminal matter, and
pay the costs of this proceeding which are $10,338.75 as of
No. 2015AP1370-D
August 17, 2018. Attorney Sweeney opted not to pursue an appeal
of the referee's report and recommendation.1
¶2 We adopt the referee's findings of fact and
conclusions of law and agree that the seriousness of Attorney
Sweeney's professional misconduct warrants the revocation of his
law license. We further agree that he should pay restitution,
as recommended by the referee, and that he should pay the costs
of this proceeding.
¶3 Attorney Sweeney was admitted to practice law in
Wisconsin in 1992. He practiced in the Madison area. He has
not previously been subject to professional discipline but his
law license is presently administratively suspended for failing
to pay state bar dues and failing to certify his compliance with
trust account record keeping requirements.
¶4 On July 10, 2015, the Office of Lawyer Regulation
(OLR) filed a disciplinary complaint alleging that Attorney
Sweeney committed five counts of professional misconduct and
seeking revocation of his law license. Attorney Sweeney filed
an answer and this court appointed Referee James C. Boll.
¶5 The disciplinary proceeding was adjourned several
times. On January 6, 2017, after Attorney Sweeney was indicted
on related criminal charges, the referee determined there was
1 Attorney Sweeney initially filed a timely notice of appeal
of the referee's recommendation. However, on December 10, 2018,
Attorney Sweeney advised the court that he would not pursue his
appeal. Accordingly, the court considers this matter as a
review of the referee's report under SCR 22.17(2).
2
No. 2015AP1370-D
cause to defer the matter pending resolution of the related
federal criminal prosecution. See United States v. Sweeney,
No. 16-CR-103 (W.D. Wis. 2017); SCR 22.41.
¶6 The federal indictment alleged that from March 2007
until March 2011, Attorney Sweeney devised a scheme to defraud
three limited liability companies in which he held a member's
ownership interest. Attorney Sweeney approached the co-members
of the companies and proposed that the companies loan $105,000
to $115,000 to a friend of Attorney Sweeney. The loan was
purportedly secured by a home mortgage. Attorney Sweeney did
not loan the money to his friend, but instead converted the
funds to his own use.
¶7 The indictment alleged that Attorney Sweeney drew
checks totaling approximately $420,000 on the companies'
checking accounts. When asked for the original promissory note,
Attorney Sweeney provided a false document bearing the forged
signature of his friend. The indictment also alleged that on
February 14, 2013, Sweeney made a false declaration in a
bankruptcy matter when he submitted a sworn "List of Creditors"
that falsely listed the embezzled funds as "loans to debtor" in
an effort to obtain a discharge in bankruptcy of his obligation
to repay the funds he had embezzled. Finally, the indictment
alleged that in March 2011, Attorney Sweeney committed identity
theft during and in relation to the alleged scheme to defraud.
¶8 Attorney Sweeney ultimately entered a guilty plea to
Count Two, the bankruptcy charge. On November 17, 2017, the
federal court sentenced Attorney Sweeney to five years of
3
No. 2015AP1370-D
probation, with the first year on home confinement, and ordered
him to pay restitution of $481,970. See Sweeney, 16-CR-103
(W.D. Wis. 2017).
¶9 Shortly after Attorney Sweeney's federal sentencing
hearing, Referee Boll scheduled a status conference in this
disciplinary proceeding. On January 22, 2018, the parties
advised the referee that Attorney Sweeney had agreed to
stipulate to the underlying counts of the disciplinary complaint
and that both parties would submit briefs on the question of the
appropriate sanction.
¶10 On January 31, 2018, the parties executed a
stipulation in which Attorney Sweeney withdrew his answer and
pled no contest to each of the five allegations of misconduct
alleged in the OLR's disciplinary complaint. The parties agreed
that the disciplinary complaint, the record in the federal
criminal prosecution, and the terms of the stipulation could
serve as the factual basis for the referee's factual findings
and determination of misconduct.
¶11 In the stipulation, Attorney Sweeney stated that he
understood the misconduct allegations, his rights to contest the
misconduct allegations and the factual basis for them, that his
entry into this stipulation was made knowingly, voluntarily,
without coercion, and without the benefit of any negotiations
for a reduction in either charges or sanctions in this matter.
He stipulated that his entry into the stipulation represents his
admission to all of the misconduct charged in the OLR's
complaint.
4
No. 2015AP1370-D
¶12 Both parties filed briefs on the question of
sanctions. The OLR maintains that revocation is warranted.
Attorney Sweeney requested a one-year suspension of his law
license.
¶13 On July 30, 2018, Referee Boll filed a report, stating
that based on the record he found by clear, satisfactory, and
convincing evidence, that Attorney Sweeney violated the rules of
professional conduct as alleged. We summarize that professional
misconduct here.
¶14 First, the parties stipulated that on December 9,
2013, while his law license was administratively suspended,
Attorney Sweeney filed an answer on behalf of a defendant in a
pending civil proceeding. See Board of Regents of the
University v. The Consciousness Project, Inc., Dane County
Circuit Court, No. 2013CV3383. The referee concluded that by
appearing on behalf of the defendant and thereafter filing an
answer, affirmative defense, and counterclaims in the case
during the period of time his license was suspended, Attorney
Sweeney violated SCR 10.03(6)2 and former SCR 20:1.15(i)(4),3
enforced via SCR 20:8.4(f)4 (Count One).
2 SCR 10.03(6) provides:
Penalty for nonpayment of dues. If the annual
dues or assessments of any member remain unpaid 120
days after the payment is due, the membership of the
member may be suspended in the manner provided in the
bylaws; and no person whose membership is so suspended
for nonpayment of dues or assessments may practice law
during the period of the suspension.
5
No. 2015AP1370-D
¶15 Next, the parties stipulated and the referee concluded
that by drafting a Promissory Note to the Fairview Entities
while he served as its managing member and had in the past
represented the Fairview Entities, and thereafter by signing his
friend's name to the Promissory Note, then personally
guaranteeing and signing the Promissory Note as guarantor,
Attorney Sweeney violated SCR 20:1.7(a)(2)5 (Count Two).
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, 2016 WI 21 (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(i)(4) provided:
The failure of a state bar member to file the
certificate is grounds for automatic suspension of the
member's membership in the state bar in the same
manner provided in SCR 10.03(6) for non payment of
dues. The filing of a false certificate is
unprofessional conduct and is grounds for disciplinary
action.
4
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."
5 SCR 20:1.7(a)(2) provides:
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 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
(continued)
6
No. 2015AP1370-D
¶16 The parties stipulated and the referee concluded that
by misappropriating funds of the Fairview Entities for his own
personal use, Attorney Sweeney violated SCR 20:8.4(c)6 (Count
Three).
¶17 The parties stipulated and the referee concluded that
by representing to other members of the Fairview Entities, while
he served as its managing member, that the Fairview Entities had
provided loans to his friend when in fact, the loan funds were
dispersed to him for his own personal use without the knowledge
or authorization of the other members, Attorney Sweeney again
violated SCR 20:8.4(c) (Count Four).
¶18 Finally, the parties stipulated and the referee
concluded that by failing to pay filing fees in the bankruptcy
case, even after receiving orders from the U.S. Bankruptcy Court
Clerk ordering him to do so, Attorney Sweeney violated
SCR 20:3.4(c)7 (Count Five).
¶19 After making a determination of misconduct as to all
five counts summarized above, the referee evaluated the
appropriate discipline for Attorney Sweeney. Attorney Sweeney
a third person or by a personal interest of the
lawyer.
6
SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
7
SCR 20:3.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
7
No. 2015AP1370-D
had argued that a one-year suspension of his law license would
suffice, asserting that he was not dishonest and did not have
selfish motives. He urged the referee to consider several
mitigating factors. The referee agreed that the absence of
previous discipline was one mitigating factor, but rejected
Attorney Sweeney's request that the referee consider other
mitigating factors. As the referee observed, Attorney Sweeney
sought to introduce facts beyond the scope of the agreed upon
record, and also failed to explain how these factors relate to
his admitted misconduct.
¶20 The referee rejected Attorney Sweeney's argument that
a one-year suspension was adequate. He was not swayed by
Attorney Sweeney's apparent perception that he was treated
harshly by the federal court, and observed that Attorney Sweeney
provided no Wisconsin case law to support his proposal.
¶21 The referee determined that Attorney Sweeney's
misconduct was of a very serious nature that warranted
revocation. Indeed, the referee concluded that Attorney
Sweeney's conduct was even more egregious than the conduct
described in the cases offered by the OLR in support of its
request for revocation. See, e.g., In re Disciplinary
Proceeding Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999)
(suspending lawyer for two years for converting $11,000 from a
sale of a client's house to pay her own personal expenses); In
re Disciplinary Proceeding Against Carter, 2014 WI 126, 359
Wis. 2d 70, 856 N.W.2d 595 (suspending lawyer for three years
for converting approximately $72,000 of client's funds held in
8
No. 2015AP1370-D
trust and attempting to conceal the conversion); In re
Disciplinary Proceeding Against Krombach, 2005 WI 170, 286
Wis. 2d 589, 707 N.W.2d 146 (revoking lawyer's license for
engaging in a series of conversions of a client's trust funds
and for making misleading representations and providing an
inaccurate accounting to the OLR). The referee further
recommends that we order Attorney Sweeney to comply with the
restitution order imposed against him in the federal criminal
case, and order Attorney Sweeney to pay the costs of this
proceeding.
¶22 The OLR did not appeal from the referee report, and,
as mentioned earlier, Attorney Sweeney opted not to pursue an
appeal. Accordingly, this court's review proceeds pursuant to
SCR 22.17(2).8 In conducting our review, we will affirm the
referee's findings of fact unless they are found to be clearly
erroneous, and we will 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
may impose whatever sanction we see fit regardless of the
8 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.
9
No. 2015AP1370-D
referee's recommendation. See In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶23 Based upon our review of the record, we accept the
referee's findings and conclusions of law in this matter and
agree that Attorney Sweeney committed the five counts of
professional misconduct, as alleged. We determine that the
seriousness of Attorney Sweeney's misconduct demonstrates that
his law license must be revoked to protect the public, courts,
and legal system from the repetition of the misconduct; to
impress upon Attorney Sweeney the seriousness of his misconduct;
and to deter other attorneys from engaging in similar
misconduct. We further accept the referee's recommendation that
we order Attorney Sweeney to comply with the restitution order
imposed on him in the federal court in the amount of $481,970,
and we impose the full costs of this disciplinary proceeding on
Attorney Sweeney.
¶24 IT IS ORDERED that the license of Patrick S. Sweeney to
practice law in Wisconsin is revoked, effective the date of this
order.
¶25 IT IS FURTHER ORDERED that Patrick S. Sweeney shall
comply with the restitution order imposed on him in United States
v. Sweeney, 16-CR-103 (W.D. Wis. 2017), in the amount of
$481,970.
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order Patrick S. Sweeney pay to the Office of Lawyer
Regulation the costs of this disciplinary proceeding, which are
$10,338.75 as of August 17, 2018.
10
No. 2015AP1370-D
¶27 IT IS FURTHER ORDERED that Patrick S. Sweeney comply
with the provisions of SCR 22.26 concerning the duties of a
person whose license to practice law has been revoked.
11
No. 2015AP1370-D
1