Office of Lawyer Regulation v. Eric L. Crandall , 2021 WI 90 ( 2021 )

2021 WI 90SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1845-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Eric L. Crandall, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Eric L. Crandall,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CRANDALL
OPINION FILED: December 21, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
2021 WI 90NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1845-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Eric L. Crandall, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, DEC 21, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Eric L. Crandall,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of Referee James
Evenson recommending that the court suspend Attorney Eric L.
Crandall's license to practice law in Wisconsin for 60 days.
Neither party has appealed from the referee's report and
recommendation.
¶2 After careful review of the matter, we adopt the
referee's findings of fact and conclusions of law with respect
to Attorney Crandall's misconduct and agree that the misconduct
warrants a 60-day suspension of Attorney Crandall's license to
No. 2019AP1845-D
practice law in Wisconsin. The Office of Lawyer Regulation
(OLR) does not seek restitution, and we do not order
restitution. As is our usual custom, we order Attorney Crandall
to pay the full costs of this disciplinary proceeding, which are
$5,824.25 as of October 6, 2021.
¶3 Attorney Crandall was admitted to practice law in
Wisconsin in 1991. He was admitted to practice law in Minnesota
in 1998. He has been the subject of five prior disciplinary
proceedings. In 2006, his Wisconsin law license was suspended
for three months as reciprocal discipline as to that imposed by
the Minnesota Supreme Court for neglecting client matters,
failing to communicate with clients, failing to appear at court
hearings, failing to comply with discovery rules, and failing to
cooperate with the disciplinary investigation. In re
Disciplinary Proceedings Against Crandall, 2006 WI 6, 287
Wis. 2d 102, 708 N.W.2d 690.
¶4 In 2008, Attorney Crandall was publicly reprimanded
for advancing a frivolous claim, failing to file a client's
affidavit or a brief in opposition to a motion for summary
judgment, failing to keep clients reasonably informed, failing
to return clients' files in a timely manner, and failing to
cooperate with the OLR's investigation. In re Disciplinary
Proceedings Against Crandall, 2008 WI 14, 307 Wis. 2d 536, 745
N.W.2d 679.
¶5 In addition to the public reprimand in 2008, Attorney
Crandall's Wisconsin law license was suspended for 30 days as
reciprocal discipline to that imposed by the Minnesota Supreme
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No. 2019AP1845-D
Court for failing to act with diligence and promptness, failing
to communicate with clients, engaging in conduct involving
dishonesty and misrepresentation, and failing to cooperate with
the Minnesota disciplinary investigation. In re Disciplinary
Proceedings Against Crandall, 2008 WI 112, 314 Wis. 2d 33, 754
N.W.2d 501.
¶6 In 2011, Attorney Crandall's Wisconsin law license was
suspended for five months for failing to hold advanced fees in
trust, failing to refund unearned fees, and failing to cooperate
with the OLR's investigation. In re Disciplinary Proceedings
Against Crandall, 2011 WI 21, 332 Wis. 2d 698, 798 N.W.2d 183.
¶7 In 2015, Attorney Crandall was publicly reprimanded
for failing to comply with the requirements of the supreme court
rule relating to the duties of an attorney whose license has
been suspended and failing to cooperate with the OLR's
investigation. In re Disciplinary Proceedings Against Crandall,
2015 WI 111, 365 Wis. 2d 682, 872 N.W.2d 649.
¶8 On September 30, 2019, the OLR filed a seven count
complaint against Attorney Crandall alleging misconduct arising
out of Attorney Crandall's representation of J.C. and L.S. J.C.
hired Attorney Crandall in February of 2018 to represent him in
a civil action and also to represent his girlfriend, L.S., in a
separate matter. J.C. had retained Attorney Crandall to do
legal work for him in the past and had been satisfied with that
representation. J.C. agreed to pay Attorney Crandall $2,500 for
his matter and $500 for L.S.'s matter. Attorney Crandall also
told J.C. he would charge a contingency fee of 25 percent.
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No. 2019AP1845-D
¶9 On February 28, 2018, Attorney Crandall sent J.C. a
"Hybrid Contingent Fee Retainer Agreement" for each
representation. Under the proposed contract, if Attorney
Crandall settled the case prior to a trial judgment, J.C. or
L.S. would pay Attorney Crandall's fees at the rate of $295 per
hour, and also pay a contingent fee of 25 percent. The
agreement did not contain language concerning the placement of
any advanced fees in Attorney Crandall's operating account.
Neither Attorney Crandall, J.C., or L.S. signed either retainer
agreement.
¶10 In March 2018, Attorney Crandall asked J.C. for the
$2,500 fees for his case, and J.C. authorized Attorney Crandall
to charge him $2,500 on an American Express credit card. On
March 16, 2018, Attorney Crandall charged $3,500 to J.C.'s
American Express card and deposited those funds, less a
processing fee, into his operating account at U.S. Bank. After
receiving the advanced fees, Attorney Crandall took no further
action in either representation.
¶11 Attorney Crandall never provided J.C. or L.S. with
notices stating Attorney Crandall's obligation to refund any
unearned advanced fees and provide an accounting at the
termination of the representation; Attorney Crandall's
obligation to submit any unresolved fee disputes to binding
arbitration within 30 days of receiving written notice of a
dispute; and the ability of J.C. or L.S. to file a claim with
the Wisconsin Lawyers' Fund for Client Protection in the event
Attorney Crandall failed to refund unearned advanced fees.
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No. 2019AP1845-D
¶12 J.C. emailed and called Attorney Crandall numerous
times to inquire about the status of his matter, but Attorney
Crandall did not substantively respond beyond a single promise
that he would file a complaint within a few weeks.
¶13 J.C. terminated Attorney Crandall's representation in
August 2018 in both matters. J.C. requested Attorney Crandall
return the client files and refund the $3,500. On August 14,
2018, Attorney Crandall mailed J.C. the files, and indicated he
would refund the advanced fees soon but failed to do so.
¶14 J.C. filed a grievance with the OLR on September 4,
2018. The OLR wrote to Attorney Crandall on November 15, 2018
asking him to respond to the grievance and requesting a copy of
J.C.'s and L.S.'s files as well as Attorney Crandall's records
regarding the $3,500 fee.
¶15 Attorney Crandall refunded J.C. the $3,500 advanced
fee on November 16, 2018.
¶16 On December 10, 2018, the date by which the OLR had
asked Attorney Crandall to respond to the grievance, Attorney
Crandall faxed a letter to the OLR asking for more time to
respond. After Attorney Crandall failed to respond to two more
OLR requests for a response to the grievance, on February 13,
2019, the OLR moved this court for an order to show cause as to
why Attorney Crandall's license should not be suspended for
failure to cooperate in the investigation. Attorney Crandall
eventually sent the OLR a response sufficient for it to continue
its investigation. On May 1, 2019, this court granted the OLR's
request to withdraw its motion for a temporary suspension.
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No. 2019AP1845-D
¶17 The OLR's complaint alleged the following counts of
misconduct:
Count 1: By agreeing to perform legal services
pursuant to a fee agreement with a contingent fee
component, where J.C. had not signed the agreement,
Attorney Crandall violated SCR 20:1.5(c).1
Count 2: By charging $3,500 to J.C.'s American
Express credit card, an amount that exceeded what J.C.
had authorized, Attorney Crandall violated
SCR 20:8.4(c). 2
Count 3: By accepting advanced fees from J.C. and
depositing the fees in his business account, with no
evidence of an intention to utilize the alternative
protection for advanced fees permitted under
1 SCR 20:1.5(c) provides:
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by par.
(d) or other law. A contingent fee agreement shall be
in a writing signed by the client, and shall state the
method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the
recovery; and whether such expenses are to be deducted
before or after the contingent fee is calculated. The
agreement must clearly notify the client of any
expenses for which the client will be liable whether
or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement
stating the outcome of the matter and if there is a
recovery, showing the remittance to the client and the
method of its determination.
2 SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
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No. 2019AP1845-D
SCR 20:1.5(g), Attorney Crandall violated
SCR 20:1.5(f).3
Count 4: By failing to take any action on J.C.'s or
L.S.'s legal matters, Attorney Crandall violated
SCR 20:1.3.4
Count 5: By failing to respond to J.C.'s multiple
requests for information regarding his legal matter,
Attorney Crandall violated SCR 20:1.4(a)(4).5
Count 6: By failing to promptly refund the unearned
advanced fees of $3,500, Attorney Crandall violated
SCR 20:1.16(d).6
Count 7: By willfully failing to timely provide
information in response to the OLR's investigation,
3 SCR 20:1.5(f) provides:
Except as provided in SCR 20:1.5(g), unearned
fees and funds advanced by a client or 3rd party for
payment of fees shall be held in trust until earned by
the lawyer, and withdrawn pursuant to SCR 20:1.5(h).
Funds advanced by a client or 3rd party for payment of
costs shall be held in trust until the costs are
incurred.
4 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
5 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly
comply with reasonable requests by the client for information."
6 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.
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No. 2019AP1845-D
Attorney Crandall violated SCR 22.03(2)7 and
SCR 22.03(6),8 enforceable via SCR 20:8.4(h).9
¶18 Attorney Crandall filed an answer to the OLR's
complaint on October 31, 2019.
¶19 A hearing was held before the referee on May 11, 2021.
Two witnesses testified at the hearing: Attorney Crandall and
J.C. J.C. was an angry witness, refused Attorney Crandall's
request to refer to him as either Attorney Crandall or
Mr. Crandall, claimed that after he terminated Attorney
Crandall's representation no other lawyer would touch his case
because Attorney Crandall had tainted it, although he refused to
7 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.
SCR
8 22.03(6) provides: "In the course of the
investigation, the respondent's willful 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."
SCR 20:8.4(h) provides:
9 "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)."
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No. 2019AP1845-D
disclose the names of attorneys that he had tried to retain. At
the end of his testimony, J.C., said, "[y]ou're a bad person,
dude. You're a bad, bad individual. . . . I don't respect you.
You screwed me over, . . . I'm telling you, you're a bad person,
and I hope you're happy. . . . you're a treat. You're a real
tool, dude."
¶20 The referee found that the OLR had established by
clear, satisfactory, and convincing evidence that Attorney
Crandall violated all of the professional rules of conduct
detailed in the OLR's complaint. As to the appropriate
sanction, the referee agreed with the OLR that Attorney
Crandall's license should be suspended for 60 days.
¶21 The referee acknowledged that Attorney Crandall has a
lengthy history of disciplinary matters, and the referee noted
that this court generally follows the concept of progressive
discipline. However, the referee noted that J.C. was a very
difficult witness who displayed extreme anger toward Attorney
Crandall even though J.C. indicated he had been satisfied with
Attorney Crandall's handling of prior legal matters.
¶22 The referee also noted that Attorney Crandall
indicated that during his representation of J.C. and L.S., he
was experiencing family health issues that included taking care
of his father who was suffering from dementia, and he was trying
to balance his law practice with his family responsibilities.
The referee said these factors caused Attorney Crandall to be
distracted and impacted his ability to manage his client
responsibilities although they did not relieve him of meeting
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No. 2019AP1845-D
those responsibilities. The referee said although Attorney
Crandall's family situation was not necessarily a mitigating
factor for the misconduct, it did at least explain, to some
extent, some of the conduct.
¶23 The referee noted that Attorney Crandall's prior
disciplinary matters involved conduct somewhat similar to what
occurred in this case, i.e. neglect of client matters, failing
to communicate with clients, failing to return client files in a
timely manner, and failing to cooperate with the OLR's
investigation. Although Attorney Crandall had suggested that a
public reprimand would be an appropriate level of discipline,
the referee said a reprimand would minimize the significance of
Attorney Crandall's prior disciplinary history and the
similarity of his past violations to the ones at issue here.
The referee said even though the record would support a longer
suspension, given the circumstances surrounding the entire
matter, the referee deemed a 60-day suspension appropriate.
¶24 We will affirm a referee's findings of fact unless
they are clearly erroneous. See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675
N.W.2d 747. The court may impose whatever sanction it sees fit,
regardless of the referee's recommendation. See In re
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 45, 660 N.W.2d 686.
¶25 There is no showing that any of the referee's findings
of fact are clearly erroneous and we adopt them. We also agree
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No. 2019AP1845-D
with the referee's legal conclusions that Attorney Crandall
violated the Supreme Court Rules noted above.
¶26 With respect to the appropriate sanction, upon careful
consideration, we agree that a 60-day suspension of Attorney
Crandall's law license is appropriate. We reach this conclusion
in spite of the fact that this is Attorney Crandall's sixth
disciplinary proceeding, and, as the referee pointed out, there
does appear to be a common theme running through the
proceedings, which is Attorney Crandall's failure to perform the
work for which he was hired.
¶27 We note, however, that it has been ten years since
Attorney Crandall's last suspension, and the misconduct at issue
in this case does not appear to rise to the level of the
misconduct that gave rise to that five-month suspension.
¶28 Although no two disciplinary matters are identical,
the imposition of a 60-day suspension is somewhat similar to the
sanction imposed in In re Disciplinary Proceedings Against
Harris, 2021 WI 31, 396 Wis. 2d 374, 956 N.W.2d 891, in which an
attorney who had six prior disciplinary cases received a 60-day
suspension for four counts of misconduct that involved failing
to keep his clients informed about the status of their cases and
failing to meet basic requirements with respect to court filings
and court dates. In addition, this case is somewhat analogous
to in In re Disciplinary Proceedings Against Hudec, 2019 WI 39,
386 Wis. 2d 371, 925 N.W.2d 540. In that case, an attorney who
had been a subject of five prior disciplinary proceedings
received a 60-day suspension for six counts of misconduct
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No. 2019AP1845-D
involving failing to act with reasonable diligence and
promptness in representing a client and failing to keep a client
reasonably informed about the status of the matter. Based on
the particular circumstances of this case, and guided by past
precedent, we conclude that a 60-day suspension of Attorney
Crandall's license is an appropriate sanction.
¶29 As is our normal practice, we deem it appropriate to
impose the full costs of this proceeding on Attorney Crandall.
¶30 IT IS ORDERED that the license of Eric L. Crandall to
practice law in Wisconsin is suspended for a period of 60 days,
effective February 1, 2022.
¶31 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Eric L. Crandall shall pay to the Office of
Lawyer Regulation the full costs of this proceeding, which are
$5,824.25 as of October 6, 2021.
¶32 IT IS FURTHER ORDERED that Eric L. Crandall 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.
¶33 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
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No. 2019AP1845-D
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