OLR v. Jesse Jon Johansen , 2020 WI 32 ( 2020 )

2020 WI 32
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2416-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Jesse Jon Johansen, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Jesse Jon Johansen,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST JOHANSEN
OPINION FILED: April 9, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 32
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2416-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Jesse Jon Johansen, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, APR 9, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Jesse Jon Johansen,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of Referee Robert E.
Kinney recommending that the court suspend Attorney Jesse J.
Johansen's license to practice law in Wisconsin for six months.
The referee also recommends that Attorney Johansen make
restitution and that he be ordered to pay the full costs of this
disciplinary proceeding, which are $5,253.95 as of December 23,
2019. The referee issued his report after Attorney Johansen and
the Office of Lawyer Regulation (OLR) entered into a stipulation
whereby Attorney Johansen admitted to 18 counts of misconduct
No. 2018AP2416-D
arising out of four client matters. Neither party has appealed
from the referee's report and recommendation, and we review the
matter under Supreme Court Rule (SCR) 22.17(2).
¶2 After careful review of the matter, we agree that
Attorney Johansen's professional misconduct warrants a six-month
suspension. We also agree that Attorney Johansen should bear the
full costs of this proceeding and that he should pay restitution.
¶3 Attorney Johansen was admitted to practice law in
Wisconsin in 2008. His address listed with the State Bar of
Wisconsin is in Superior, Wisconsin. He has no prior disciplinary
history.
¶4 On October 9, 2018, Attorney Johansen's license to
practice law in Wisconsin was suspended pursuant to SCR 22.03(4)
for his willful failure to cooperate with the OLR's grievance
investigation. On October 31, 2018, the State Bar of Wisconsin
suspended Attorney Johansen's law license for failure to pay State
Bar dues and failure to certify trust account information. On
June 5, 2019, Attorney Johansen's law license was suspended for
failure to comply with continuing legal education requirements.
His law license remains suspended.
¶5 On December 20, 2018, the OLR filed a complaint against
Attorney Johansen alleging nine counts of misconduct. Attorney
Johansen did not file an answer to the complaint. The referee was
appointed on April 1, 2019.
¶6 On June 27, 2019, the OLR filed an amended complaint
adding an additional nine counts of misconduct. Attorney Johansen
did not file an answer to the amended complaint. At a scheduling
2
No. 2018AP2416-D
conference in August 2019, Attorney Johansen indicated he would
not be contesting the allegations contained in the amended
complaint but that he would be contesting the OLR's request for a
six-month license suspension, as well as the request for
restitution on behalf of some of his former clients.
¶7 At a hearing on October 17, 2019, the parties presented
a stipulation whereby Attorney Johansen pled no contest to all 18
counts of misconduct alleged in the amended complaint.
¶8 The referee issued his report and recommendation on
December 11, 2019. Based on the stipulated facts in the amended
complaint, the referee found that there was a factual basis to
find that the OLR satisfied its burden of proof with respect to
all of the counts of misconduct alleged in the amended complaint.
¶9 The first nine counts of misconduct alleged in the
amended complaint arose out of trust account violations that
occurred during the course of Attorney Johansen's representation
of E.K. An overdraft notice from National Bank of Commerce in
Superior, Wisconsin, concerning Attorney Johansen's trust account
prompted an OLR investigation. The investigation showed that in
August 2014, Attorney Johansen began representing E.K. in a
personal injury case. Attorney Johansen failed to reduce the
contingent fee agreement to writing.
¶10 On October 4, 2016, there was a zero balance in Attorney
Johansen's trust account. Attorney Johansen settled E.K.'s case
for $7,500 but failed to provide E.K. with written notice that the
funds had been received. Attorney Johansen gave E.K. $1,000. On
October 5, 2016, Attorney Johansen deposited $6,500 into his trust
3
No. 2018AP2416-D
account from the settlement proceeds. The only funds in the trust
account at that time were attributable to E.K.
¶11 E.K. had instructed Attorney Johansen to remit the net
proceeds of the settlement to Attorney Richard Gondik after
Attorney Johansen's fees and costs were paid in order to pay
attorney fees owed to Attorney Gondik in an unrelated matter.
Attorney Johansen's one-third contingent fee was $2,500, and he
claimed an additional $1,250 in costs. Attorney Johansen was
therefore potentially owed a total of $3,750, leaving net proceeds
of $2,750 to be paid to Attorney Gondik.
¶12 Between October 6 and October 11, 2016, Attorney
Johansen made four separate cash withdrawals totaling $3,750 from
his trust account. Attorney Johansen asserted this payment was
for his fees and expenses. He maintained no records showing the
specifics of the withdrawals and failed to maintain any required
trust account records.
¶13 Attorney Johansen did not promptly distribute $2,750, or
any other amount, to Attorney Gondik from the settlement proceeds
held in trust. On October 17, 2016, Attorney Johansen improperly
deposited $2,350 of earned fees into his trust account via a check
from the State of Wisconsin.
¶14 Between October 17 and October 24, 2016, Attorney
Johansen made five separate cash withdrawals from his trust account
totaling $2,100, leaving a balance of $3,000 in the account.
Attorney Johansen maintained no records showing the specifics of
those withdrawals.
4
No. 2018AP2416-D
¶15 On October 27, 2016, Attorney Johansen improperly made
a $1,650 cash deposit into the trust account, and then proceeded
to make four separate cash withdrawals totaling $3,250. As of
that date, the balance in the trust account was $1,400; the $2,750
owed to Attorney Gondik had not been paid; and Attorney Johansen
had drawn down the trust account balance to less than the amount
that should have been held from the E.K. settlement.
¶16 On November 16, 2016, Attorney Johansen improperly
deposited additional earned fees via a check from the state public
defender into his trust account. After receiving cash back, that
left a trust account balance of $2,550.
¶17 In February 2017, Attorney Johansen gave Attorney Gondik
a cashier's check for $2,500. The distribution to Attorney Gondik
should have been made with a trust account check.
¶18 Attorney Johansen did not provide E.K. with a written
accounting of the final distribution of the settlement proceeds
from his trust account.
¶19 On May 31, 2018, the OLR sent Attorney Johansen a letter,
via first class and certified mail, requesting supplemental
written information regarding his trust account. The first class
letter was not returned as undeliverable. The receipt for the
certified letter was returned to the OLR on June 12, 2018, with an
illegible signature and was undated. Attorney Johansen failed to
respond to the OLR's letter.
¶20 The OLR filed a motion with this court requesting that
Attorney Johansen show cause why his law license should not be
temporarily suspended for his failure to cooperate in the OLR's
5
No. 2018AP2416-D
investigation. Attorney Johansen did not respond. On October 9,
2018, this court suspended Attorney Johansen's license to practice
law in Wisconsin.
¶21 The amended complaint alleged the following counts of
misconduct with respect to Attorney Johansen's representation of
E.K. and the trust account violations:
Count 1: By failing to reduce the contingent fee
agreement with E.K. to writing, Attorney Johansen
violated SCR 20:1.5(c).1
Count 2: By failing to notify E.K. in writing upon his
receipt of settlement proceeds from the personal injury
matter and by failing to promptly disburse funds held in
trust to Attorney Gondik pursuant to E.K.'s direction,
in each instance, Attorney Johansen violated SCR
20:1.15(e)(1).2
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 20:1.15(e)(1) provides:
6
No. 2018AP2416-D
Count 3: By failing to provide E.K. a written accounting
of funds held in his trust account upon final
distribution, Attorney Johansen violated
SCR 20:1.15(e)(2).3
Count 4: By failing to hold in his trust account E.K.'s
settlement funds which E.K. had directed to be paid to
attorney Gondik, Attorney Johansen violated SCR
20:1.15(b)(1). 4
Count 5: By drawing down his trust account balance below
the amount he should have been holding from the E.K.
settlement, Attorney Johansen violated SCR 20:8.4(c).5
Upon receiving funds or other property in which a
client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
contract, the lawyer shall promptly notify the client or
3rd party in writing. Except as stated in this rule or
otherwise permitted by law or by agreement with the
client, the lawyer shall promptly deliver to the client
or 3rd party any funds or other property that the client
or 3rd party is entitled to receive.
3 SCR 20:1.15(e)(2) provides: "Upon final distribution of
any trust property or upon request by the client or a 3rd party
having an ownership interest in the property, the lawyer shall
promptly render a full written accounting regarding the property."
4 SCR 20:1.15(b)(1) provides:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and 3rd
parties that is in the lawyer's possession in connection
with a representation. All funds of clients and 3rd
parties paid to a lawyer or law firm in connection with
a representation shall be deposited in one or more
identifiable trust accounts.
5 SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud, deceit
or misrepresentation."
7
No. 2018AP2416-D
Count 6: By depositing earned fees into his trust
account, Attorney Johansen violated SCR 20:1.15(b)(3).6
Count 7: By making cash withdrawals from his trust
account, Attorney Johansen violated
SCR 20:1.15(f)(2)(a). 7
Count 8: By failing to maintain complete records of
trust account funds, Attorney Johansen violated
SCR 20:1.15(g)(1). 8
6 SCR 20:1.15(b)(3) provides:
No funds belonging to a lawyer or law firm, except
funds reasonably sufficient to pay monthly account
service charges, may be deposited or retained in a trust
account. Each lawyer or law firm that receives trust
funds shall maintain at least one draft account, other
than the trust account, for funds received and disbursed
other than in a trust capacity, which shall be entitled
"Business Account," "Office Account," "Operating
Account," or words of similar import.
7 SCR 20:1.15(f)(2)(a) provides: "No withdrawal of cash shall
be made from a trust account or from a deposit to a trust account.
No check shall be made payable to 'Cash.' No withdrawal shall be
made from a trust account by automated teller or cash dispensing
machine."
8 SCR 20:1.15(g)(1) provides:
A lawyer shall maintain and preserve complete
records of trust account funds, all deposits and
disbursements, and other trust property and shall
preserve those records for at least six years after the
date of termination of the representation. Electronic
records shall be backed up by an appropriate storage
device. The office of lawyer regulation shall publish
guidelines for trust account record keeping.
8
No. 2018AP2416-D
Count 9: By willfully failing to respond to the OLR's
request for additional information, Attorney Johansen
violated SCR 22.03(6),9 enforceable via SCR 20:8.4(h).10
¶22 The second matter detailed in the OLR's amended
complaint involved Attorney Johansen's representation of J.J. In
February 2018, J.J. paid Attorney Johansen an advanced fee of
$1,500 to represent her in a divorce matter in Douglas County.
¶23 On March 6, 8, and 9, 2018, J.J. sent Attorney Johansen
text messages asking if the divorce action had been filed and
asking for information about service. Attorney Johansen failed to
respond until March 14, 2018. J.J. again texted Attorney Johansen
about the case on March 14, 15, and 16, 2018.
¶24 On or about March 19, 2018, J.J. fired Attorney Johansen
and requested that he return her advanced fee. She renewed her
request on April 19, 2018. Attorney Johansen did not comply.
¶25 On July 13, 2018, J.J. filed a small claims action
against Attorney Johansen seeking $1,500 for the advanced fee.
She obtained a default judgment against him on August 2, 2018.
The court ordered Attorney Johansen to file a financial disclosure
statement. He failed to timely do so.
9 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."
10SCR 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)."
9
No. 2018AP2416-D
¶26 On August 21, 2018, J.J. filed a motion for contempt due
to Attorney Johansen's failure to file the financial disclosure
statement. A hearing was held on the motion on September 5, 2018.
Attorney Johansen failed to appear, was found in contempt, and an
arrest warrant was issued. Attorney Johansen thereafter filed the
financial disclosure statement.
¶27 J.J. filed a grievance against Attorney Johansen with
the OLR. On December 14, 2018, the OLR sent a letter to Attorney
Johansen by certified mail requesting a written response to the
grievance. Attorney Johansen signed the certified mail receipt
but failed to respond to the request for information.
¶28 The OLR sent Attorney Johansen a second letter
requesting a response to J.J.'s grievance on January 9, 2019.
Attorney Johansen did not respond. After learning that Attorney
Johansen had moved to a new address without notifying the State
Bar of Wisconsin, the OLR sent a letter to the new address.
Attorney Johansen did not respond.
¶29 On May 8, 2019, the Wisconsin Lawyers' Fund for Client
Protection approved payment of $1,500 to J.J.
¶30 The OLR's amended complaint alleged the following counts
of misconduct with respect to Attorney Johansen's representation
of J.J.:
Count 10: By failing to refund J.J.'s advanced fee after
his representation was terminated, Attorney Johansen
violated SCR 20:1.16(d).11
11 SCR 20:1.16(d) provides:
10
No. 2018AP2416-D
Count 11: By failing to timely file his financial
disclosure statement and appear for the contempt hearing
pursuant to the circuit court's orders, Attorney
Johansen violated SCR 20:3.4(c).12
Count 12: By willfully failing to provide the OLR a
response to J.J.'s grievance, Attorney Johansen violated
SCR 22.03(2)13 and SCR 22.03(6), enforceable via SCR
20:8.4(h).
¶31 The next client matter detailed in the OLR's amended
complaint involved Attorney Johansen's representation of N.N. In
August 2018, E.V. paid Attorney Johansen an advanced fee of $2,000
to represent N.N., her nephew, in a criminal matter in Douglas
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.
12SCR 20:3.4(c) provides: "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."
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.
11
No. 2018AP2416-D
County. Attorney Johansen neither memorialized the terms, scope,
and fees in a written fee agreement, nor did he communicate the
purpose and effect of the advanced fee in writing to E.V.
¶32 Attorney Johansen made one appearance in court in N.N.'s
case on September 24, 2018 for a status conference. On October 9,
2018, Attorney Johansen's license to practice law in Wisconsin was
suspended for his willful failure to cooperate with the OLR's
grievance investigation. Attorney Johansen made no further
appearances in N.N.'s case.
¶33 In October 2018, Attorney Johansen promised to refund
the advanced fee to E.V. To date, he has not refunded any portion
of it.
¶34 In December 2018 and January 2019, the OLR sent Attorney
Johansen letters asking him to respond to the grievance filed by
E.V. He failed to respond.
¶35 The amended complaint alleged the following counts of
misconduct with respect to Attorney Johansen's representation of
N.N. and retainer by E.V.:
Count 13: By failing to have a written fee agreement
memorializing the terms, scope, and fees for
representation, and by failing to communicate in writing
the purpose and effect of the advanced fee for
representation in a matter where the total cost of
representation exceeded $1,000, Attorney Johansen
violated SCR 20:1.5(b)(1) and SCR 20:1.5(b)(2).14
14 SCR 20:1.5(b)(1) and (2) provides:
(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall be communicated to the client
in writing, before or within a reasonable time after
12
No. 2018AP2416-D
Count 14: By failing to refund any portion of E.V.'s
advanced fee, Attorney Johansen violated SCR 20:1.16(d).
Count 15: By willfully failing to provide the OLR a
response to E.V.'s grievance, Attorney Johansen violated
SCR 22.03(2) and SCR 22.03(6), enforceable via SCR
20:8.4(h).
¶36 The final matter detailed in the amended complaint
involved Attorney Johansen's representation of I.G. In August
2018, I.G. paid Attorney Johansen an advanced fee of $750 to
represent him in a criminal matter in Douglas County. I.G.'s
girlfriend paid Attorney Johansen an additional $150 for the
representation.
¶37 On September 5, 2018, Attorney Johansen appeared in
court with I.G. for a motion hearing. On October 9, 2018, Attorney
Johansen's license to practice law in Wisconsin was suspended.
Attorney Johansen made no further appearances on behalf of I.G.
¶38 Attorney Johansen failed to inform I.G. of his license
suspension, that he could no longer represent him, and that I.G.
should seek new counsel. Attorney Johansen did not refund any
portion of I.G.'s advanced fee.
commencing the representation, except when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
foreseeable that the total cost of representation to the
client, including attorney's fees, will be $1000 or
less, the communication may be oral or in writing. Any
changes in the basis or rate of the fee or expenses shall
also be communicated in writing to the client.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
13
No. 2018AP2416-D
¶39 In January and February, 2019, the OLR sent Attorney
Johansen letters requesting a written response to I.G.'s
grievance. Attorney Johansen failed to respond.
¶40 The amended complaint alleged the following counts of
misconduct with respect to Attorney Johansen's representation of
I.G.:
Count 16: By failing to notify I.G. that his Wisconsin
law license had been suspended, that he could no longer
represent him, and that I.G. should seek new counsel,
Attorney Johansen violated SCR 22.26(1)(a) and (b),15
enforceable via SCR 20:8.4(f).16
Count 17: By failing to refund any portion of I.G.'s
advanced fee, Attorney Johansen violated SCR 20:1.16(d).
Count 18: By willfully failing to provide the OLR a
response to I.G.'s grievance, Attorney Johansen violated
SCR 22.03(2) and SCR 22.03(6), enforceable via SCR
20:8.4(h).
¶41 In the stipulation, the parties agreed that the issue of
the appropriate level of discipline to be imposed for Attorney
15 SCR 22.26(1)(a) and (b) provides:
(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability to
act as an attorney following the effective date of the
suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
16 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."
14
No. 2018AP2416-D
Johansen's misconduct would be addressed at a sanction hearing.
The hearing was held on October 17, 2019. The OLR sought a six-
month license suspension, which would require Attorney Johansen to
demonstrate that he is fit to be consulted by others, to represent
them and to otherwise act in matters of trust and confidence, and
aid the administration of justice. Attorney Johansen requested a
shorter suspension.
¶42 The referee concluded that a six-month license
suspension was appropriate. The referee noted that from early in
the OLR's investigation, Attorney Johansen showed a pattern of
failing to respond to the OLR's inquiries, eventually leading to
the suspension of Attorney Johansen's license to practice law due
to his non-cooperation.
¶43 The referee noted that at the sanction hearing, Attorney
Johansen testified he had sustained a back injury while in the
Marines and had developed an addiction to opioids, which he has
struggled with for 20 years. The referee noted, however, that
Attorney Johansen produced no medical or military records and when
asked if he had ever applied for benefits due to a service related
disability, he said he had not done so but might explore doing so
in the future because his back problem was getting worse.
¶44 The referee noted that Attorney Johansen indicated that
on two occasions in the summer of 2019 he entered in-patient
treatment at the Betty Ford Clinic in Minnesota. Attorney Johansen
also said that he was not currently in any treatment for his
addiction and when asked if he had any thought about establishing
a treatment plan in the future he said, "I haven't thought about
15
No. 2018AP2416-D
it because it hasn't been an issue, but I suppose I had better
because it is sometimes a lifetime struggle, and I know I have
struggled with it for 20 years now."
¶45 The referee said the thrust of Attorney Johansen's
defense was that, even though he has struggled with opioid
addiction for 20 years, the referee should ignore that fact because
none of the 18 counts of misconduct to which he admitted involved
the purchase or use of illegal substances, nor was there a proven
nexus between the violations and his drug use.
¶46 The referee also noted that although a number of the
counts of misconduct involved violations of trust account rules,
it was not clear whether Attorney Johansen understood the trust
account rules, and he presented no evidence of attending any
educational programs regarding trust accounts.
¶47 The referee said while it may be there was no direct
connection between some of the counts in the amended complaint and
Attorney Johansen's drug use, Attorney Johansen does admit that
his lack of cooperation with the OLR's investigation, which is
itself a violation of supreme court rules, was related to his drug
abuse. The referee said Attorney Johansen did not appear to
approach this case in a serious or professional manner; he failed
to respond to important communications; he missed deadlines; and
there was no indication he prepared for the sanctions hearing.
¶48 As to mitigating factors, the referee noted that
Attorney Johansen has no prior disciplinary record, nor did there
appear to be a dishonest or selfish motive underlying the
violations. The referee said although chemical dependency is
16
No. 2018AP2416-D
listed as a possible mitigating factor under the American Bar
Association guidelines, not enough time has transpired to conclude
that Attorney Johansen has been successfully rehabilitated from
his drug dependency given that he left treatment early on two
occasions; failed to provide discharge summaries; failed to
provide documentary evidence attesting to his present non-drug
use; and failed to involve himself in follow-up treatment.
¶49 The referee said that this case calls out for a showing
that Attorney Johansen is fit to be consulted by others, to
represent them and to otherwise act in matters of trust and
confidence, and to aid the administration of justice, which
requires him to go through a formal reinstatement proceeding. The
referee found this case somewhat similar to In re Disciplinary
Proceedings Against Danielson, 2006 WI 33, 290 Wis. 2d 12, 712
N.W.2d 671 and In re Disciplinary Proceedings Against Joset, 2008
WI 41, 309 Wis. 2d 5, 748 N.W.2d 778. The referee noted both of
those cases involved attorneys who abandoned their clients.
Neither had prior discipline and the law licenses of both were
suspended for six months.
¶50 The referee also recommended that Attorney Johansen be
ordered to pay restitution of $250 to Attorney Richard Gondik;
$1,500 to the Wisconsin Lawyers' Fund for Client Protection in the
J.J. matter; $2,000 to E.V.; and $900 to I.G. In addition, the
referee recommended that Attorney Johansen pay the full costs of
this proceeding.
¶51 We will affirm a referee's findings of fact unless they
are clearly erroneous. Conclusions of law are reviewed de novo.
17
No. 2018AP2416-D
See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We may impose whatever
sanction we see 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.
¶52 As noted, Attorney Johansen stipulated to all of the
counts of misconduct. There is no showing that any of the
referee's findings of fact, based on that stipulation, are clearly
erroneous. Accordingly, we adopt them. We also agree with the
referee's legal conclusions that Attorney Johansen violated all of
the Supreme Court Rules noted above.
¶53 Turning to the issue of the appropriate sanction, we
agree with the referee's conclusion that a six-month suspension is
appropriate. Although no two cases are precisely the same, we do
find Joset and Danielson to be somewhat analogous. As is our
normal practice, we find it appropriate to impose the full costs
of this proceeding on Attorney Johansen. We also find it
appropriate to order Attorney Johansen to pay restitution in the
amounts sought by the OLR.
¶54 IT IS ORDERED that the license of Jesse J. Johansen to
practice law in Wisconsin is suspended for a period of six months,
effective the date of this order.
¶55 IT IS FURTHER ORDERED that within 60 days of the date of
this order, Jesse J. Johansen shall pay restitution as follows:
$250 to Attorney Richard Gondik; $1,500 to the Wisconsin Lawyers'
Fund for Client Protection in the J.J. matter; $2,000 to E.V.; and
$900 to I.G.
18
No. 2018AP2416-D
¶56 IT IS FURTHER ORDERED that within 60 days of the date of
this order, Jesse J. Johansen shall pay to the Office of Lawyer
Regulation, the costs of this proceeding, which are $5,253.95 as
of December 23, 2019.
¶57 IT IS FURTHER ORDERED that restitution specified above
is to be completed prior to paying costs to the Office of Lawyer
Regulation.
¶58 IT IS FURTHER ORDERED, that to the extent that he has
not already done so, Jesse J. Johansen shall comply with the
provisions of SCR 22.26 regarding the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶59 IT IS FURTHER ORDERED that the temporary suspension of
Jesse J. Johansen's license to practice law, entered on October 9,
2018, is hereby lifted.
¶60 IT IS FURTHER ORDERED that the administrative suspension
of Jesse J. Johansen's license to practice law in Wisconsin, due
to his failure to pay mandatory bar dues, for failure to file
Office of Lawyer Regulation trust account certification, and for
noncompliance with continuing legal education requirements, will
remain in effect until each reason for the administrative
suspension has been rectified pursuant to SCR 22.28(1).
¶61 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(3).
19
No. 2018AP2416-D
1