Office of Lawyer Regulation v. John R. Dade ( 2014 )

2014 WI 108SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1733-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
John R. Dade,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DADE
OPINION FILED: August 21, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 108NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1733-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
AUG 21, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
John R. Dade,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the recommendation of referee
Hannah C. Dugan that the license of Attorney John R. Dade to
practice law in Wisconsin be suspended for a period of 90 days
and that he be required, as a condition of the reinstatement of
his license, to complete six continuing legal education (CLE)
credits in law office management, to be approved in advance by
the Office of Lawyer Regulation (OLR). The referee also
No. 2013AP1733-D
recommends that the full costs of the proceeding, which are
$5,420.73 as of May 7, 2014, be assessed against Attorney Dade.
¶2 Based upon our independent review of the matter, we
adopt the referee's findings of fact and conclusions of law. We
also agree with the referee's recommendation for a 90-day
suspension of Attorney Dade's license to practice law in
Wisconsin. We further agree with the referee's recommendations
regarding CLE credits and assessment of costs.
¶3 Attorney Dade was admitted to practice law in
Wisconsin in 1983 and practices in Whitewater. In 1991 he
received a private reprimand for failing to communicate, failing
to act with reasonable diligence, and failing to cooperate with
the investigation of the Board of Attorneys Professional
Responsibility, the predecessor to the OLR.
¶4 In 2007 Attorney Dade received a public reprimand for
failure to provide competent representation, lack of diligence,
and failure to communicate. In 2007 Attorney Dade's license to
practice law was suspended for 60 days for lack of diligence,
failure to hold in trust the property of others in his client
trust account, and failure to cooperate in an OLR investigation.
In re Disciplinary Proceedings Against Dade, 2007 WI 66,
301 Wis. 2d 67, 732 N.W.2d 433.
¶5 In 2012 Attorney Dade was publicly reprimanded for
lack of diligence, failure to communicate, failure to cooperate
in the OLR's investigation, and failure to return a client's
documents. In 2013 Attorney Dade's license to practice law in
Wisconsin was suspended for 60 days for lack of diligence, lack
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No. 2013AP1733-D
of communication, and failure to obey a court order. In re
Disciplinary Proceedings Against Dade, 2013 WI 21,
345 Wis. 2d 646, 827 N.W.2d 86.
¶6 On August 6, 2013, the OLR filed a complaint alleging
two counts of misconduct with respect to Attorney Dade's
representation of R.K., a defendant in a real estate dispute. A
trial in said dispute was held in Walworth County circuit court
in late September 2006. Attorney Dade failed to file a brief by
November 28, 2006, as required by the court's post-trial
briefing schedule. In a December 11, 2006 order, the circuit
court informed the parties that the court would make its
decision based on the evidence at trial and the plaintiffs'
brief.
¶7 In a decision issued on January 29, 2007, the circuit
court found that the plaintiffs had met their burden of proof
and were entitled to ownership by adverse possession of the
piece of land at issue. Attorney Dade filed a notice of appeal
on behalf of R.K. In a May 31, 2007 order, the court of appeals
found that Attorney Dade had not filed a docketing statement and
informed him that unless it was filed within five days, the
appeal would be subject to dismissal or other sanctions.
Attorney Dade did not promptly file a docketing statement.
¶8 In a June 27, 2007 order, the court of appeals noted
the docketing statement had still not been filed and indicated
that if the original and one copy of the statement was not filed
on or before July 9, 2007, a penalty of $25 per day would be
imposed on Attorney Dade as counsel for the appellant until such
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No. 2013AP1733-D
time as the docketing statement was filed. Attorney Dade failed
to file the docketing statement by July 9, 2007.
¶9 On July 11, 2007, Attorney Dade filed a stipulation
signed by R.K. substituting Attorney C. Bennett Penwell as
attorney of record for R.K. Attorney Penwell was in the same
law firm as Attorney Dade.
¶10 This court suspended Attorney Dade's law license for
60 days, effective July 13, 2007.
¶11 In an August 7, 2007 order, the court of appeals again
noted the history of Attorney Dade's failure to file a docketing
statement. The penalty that had accrued at that point was more
than $700. The court of appeals again extended the time for
filing a docketing statement to August 17, 2007, conditioned
upon the simultaneous payment by Attorney Dade of a $50 penalty.
The court of appeals informed Attorney Dade that if the original
and one copy of the docketing statement were not filed by
August 17, 2007, Attorney Dade would be required to personally
pay the $700 penalty, and a penalty of $25 per day would begin
running as to Attorney Penwell personally as well. Attorney
Penwell filed the docketing statement on August 16, 2007. On
July 30, 2008, the court of appeals affirmed the circuit court's
judgment.
¶12 R.K. filed a grievance against Attorney Dade with the
OLR on February 1, 2012. Despite being provided with written
notice of the investigation and being personally served with
letters from the OLR reminding him of his duty to cooperate and
informing him that he was required to file a written response to
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No. 2013AP1733-D
the grievance, Attorney Dade failed to respond until late August
2012.
¶13 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Dade's handling of R.K.'s
case:
[Count One] By failing to file a docketing
statement in [R.K.'s] appeal, even after receiving
orders from the Wisconsin Court of Appeals dated
May 31, 2007, and June 27, 2007, ordering him to do
so, Dade violated SCR 20:1.31 and 20:3.4(c).2
[Count Two] By failing to provide a written
response to the grievance, which was due by June 25,
2012, until providing OLR with [R.K.'s] case file on
August 8, 2012 and a written response on August 31,
2012, and only after receiving a letter by ordinary
mail, a letter by certified and ordinary mail, and
being personally served, Dade violated SCR 22.03(2)
and (6)3 as enforced via 20:8.4(h).4
1
Supreme Court Rule (SCR) 20:1.3 provides that "[a] lawyer
shall act with reasonable diligence and promptness in
representing a client."
2
SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
3
SCR 22.03(2) and (6) provide:
(2) 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
(continued)
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No. 2013AP1733-D
¶14 Attorney Dade did not file a timely answer to the
complaint. The OLR filed a notice of motion and motion for
default judgment. The referee scheduled the initial
teleconference between the parties to be a hearing on the OLR's
default judgment motion. The telephonic hearing was scheduled
for October 17, 2013. Attorney Dade filed an answer on
October 17, 2013, admitting the allegations in the complaint
with the exception of the claimed violation of SCR 20:3.4(c).
The parties appeared via telephone for the hearing on the motion
for default judgment. The parties agreed to proceed to a
hearing on the sole issue of the appropriate disciplinary
sanction. The sanctions hearing was held on December 5, 2013.
At the close of the hearing, the parties requested the
opportunity to file written briefs regarding the appropriate
sanction. The OLR filed its brief. Attorney Dade did not file
respondent to answer questions, furnish documents, and
present any information deemed relevant to the
investigation.
. . . .
(6) 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.
4
SCR 20:8.4(h) provides that 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. 2013AP1733-D
a response brief. The referee issued her report and
recommendation on March 27, 2014.
¶15 The referee concluded that the OLR failed to meet its
burden of proof establishing that Attorney Dade violated
SCR 20:3.4(c). The referee noted that the court of appeals'
orders mentioned in the complaint were not made part of the
record. As a result, the referee said it was difficult to
determine whether Attorney Dade's failure to timely submit the
docketing statement was a violation of the successive
communications from the court of appeals that rises to the level
of a SCR 20:3.4(c) violation. The referee said that a review of
prior case law involving SCR 20:3.4(c) violations reveals cases
involving clear court orders and deliberate, egregious, and
sometimes even arrogant, violations of SCR 20:3.4(c). The
referee concluded that, although failing to file the docketing
statement was not acceptable practice, and while Attorney Dade
acknowledged that his failure to file the docketing statement
was a violation of the lack of diligence rule, the OLR failed to
carry its burden of proof that Attorney Dade knowingly disobeyed
an obligation under the rules of a tribunal.
¶16 The referee concluded that the OLR did meet its burden
of proof with respect to the other allegations in the OLR's
complaint.
¶17 With respect to the appropriate sanction, the referee
noted that the OLR sought a five-month suspension of Attorney
Dade's license to practice law in Wisconsin. The referee
concluded that a 90-day suspension was appropriate. The referee
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No. 2013AP1733-D
agreed with the OLR that Attorney Dade's disciplinary history
demonstrates a troubling pattern of lack of diligence, failure
to obey court orders, and failure to cooperate in OLR
investigations. On the other hand, the referee pointed to
Attorney Dade's willingness to acknowledge the wrongful nature
of his conduct. The referee also noted that the underlying
facts in this case occurred in 2007 and the grievance was not
filed until five years later. The referee pointed out that in
the ensuing five years, this court disciplined Attorney Dade
with two public reprimands and two 60-day license suspensions.
The referee said this unusual disciplinary pattern complicated
the recommendation with respect to this court's standard of
progressive discipline.
¶18 The referee also said that the OLR did not establish
that Attorney Dade's violations of supreme court rules "harmed"
his client in a specific, tangible way. The referee said that
Attorney Dade's conduct requires a sanction that clearly signals
to Attorney Dade and to the practicing bar that repeated
failures to respond to the OLR are unacceptable breaches of
professional ethics. On balance, the referee concluded that a
90-day suspension was an appropriate sanction. The referee also
recommends, as a requirement of the reinstatement of his
license, that Attorney Dade be required to complete six CLE
credits in law office management, to be approved by the OLR, and
that he be assessed the full costs of this proceeding.
¶19 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
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No. 2013AP1733-D
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. 2d 45, 660 N.W.2d 686.
¶20 There is no showing that any of the referee's findings
of fact are erroneous. Accordingly, we adopt them. We also
agree with the referee's conclusions of law that Attorney Dade
violated the supreme court rules set forth above.
¶21 Given the referee's factual findings, we further agree
with the referee that Attorney Dade's professional misconduct
requires that his license to practice law in Wisconsin be
suspended for a period of 90 days. Attorney Dade has not
objected to the statement of costs filed by the OLR, and we
conclude that he should be required to pay the full amount of
costs in this disciplinary proceeding. Finally, we agree with
the referee's recommendation that, as a condition of the
reinstatement of his license to practice law, Attorney Dade be
required to complete six CLE credits in law office management,
to be approved by the OLR.
¶22 IT IS ORDERED that the license of Attorney John R.
Dade to practice law in Wisconsin is suspended for a period of
90 days, effective September 25, 2014.
¶23 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law, John R. Dade shall
be required to complete six continuing legal education credits
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No. 2013AP1733-D
in law office management, to be approved by the Office of Lawyer
Regulation.
¶24 IT IS FURTHER ORDERED that within 60 days of the date
of this order, John R. Dade shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶25 IT IS FURTHER ORDERED that John R. Dade 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.
¶26 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. 2013AP1733-D
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