Office of Lawyer Regulation v. Holly Lynn Fulkerson , 381 Wis. 2d 124 ( 2018 )

2018 WI 42
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2529-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Holly Lynn Fulkerson, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Holly Lynn Fulkerson, f/k/a Holly Lynn Strop,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST FULKERSON
OPINION FILED: April 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 42
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2529-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Holly Lynn Fulkerson, Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant,
APR 20, 2018
v.
Sheila T. Reiff
Holly Lynn Fulkerson, f/k/a Holly Clerk of Supreme Court
Lynn Strop,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review a stipulation pursuant to
Supreme Court Rule (SCR) 22.12 between the Office of Lawyer
No. 2017AP2529-D
Regulation (OLR) and Attorney Holly Lynn Fulkerson.1 The
stipulation provides that Attorney Fulkerson committed six
counts of professional misconduct arising out of the
representation of a single client and jointly requests that the
court publicly reprimand Attorney Fulkerson for her professional
misconduct.
¶2 After carefully reviewing the matter, we accept the
stipulation and impose the requested public reprimand. We do
not require Attorney Fulkerson to pay any restitution, as none
was requested by the OLR. Although there was a prior submission
of a proposed consensual public reprimand to a referee, this
disciplinary proceeding has been resolved by a stipulation under
SCR 22.12 without the appointment of a referee. Thus, we do not
impose any costs on Attorney Fulkerson.
¶3 Attorney Fulkerson was admitted to the practice of law
in this state in June 2001. According to the information
provided to the State Bar, Attorney Fulkerson has most recently
engaged in the private practice of law in Blue Mounds,
Wisconsin.
1
This case was originally filed under the caption Office of
Lawyer Regulation v. Holly Lynn Strop. We have recently been
informed, however, that the Board of Bar Examiners has approved
the change of the name under which the respondent may practice
law in this state from Holly Lynn Strop to Holly Lynn Fulkerson.
See SCRs 10.03(2) and 40.14(3). Consequently, we have changed
the caption of this matter to list the respondent's name as
Holly Lynn Fulkerson and we refer to the respondent throughout
the text of this opinion as Holly Lynn Fulkerson so that this
disciplinary opinion corresponds with the name under which the
respondent is currently practicing law.
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No. 2017AP2529-D
¶4 Attorney Fulkerson has been the subject of
professional discipline on one prior occasion. In 2015 she
consented to the imposition of a private reprimand for failing
to act with reasonable diligence, failing to protect a client's
interests, failing to keep a client reasonably informed, making
a frivolous discovery request or failing to make reasonably
diligent efforts to comply with a discovery request, and
knowingly disobeying an obligation under the rules of a
tribunal. Private Reprimand No. 2015-28 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
002845.html).
¶5 This matter was initially submitted to a referee as a
proposed consensual public reprimand under SCR 22.09. At that
time the OLR was alleging seven counts of professional
misconduct, which Attorney Fulkerson conceded. After reviewing
the submission, the referee declined to approve the consensual
reprimand. He pointed to the presence of seven counts of
misconduct and the existence of the previous private reprimand.
He stated that he was particularly concerned with the fact that
Attorney Fulkerson had agreed to represent the clients even
though she did not have prior experience handling medical
malpractice matters and that she appeared not to have adequately
sought guidance from other experienced attorneys or educated
herself.
¶6 Following the refusal of the consensual reprimand,
Attorney Fulkerson sent a lengthy letter to the OLR providing
additional, highly personal mitigating information. In its
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No. 2017AP2529-D
memorandum in support of the current SCR 22.12 stipulation, the
OLR asserts that Attorney Fulkerson has been "forthright and
cooperative" throughout the OLR's investigation and that her
letter did not attempt to avoid responsibility for or minimize
her conduct. To the contrary, the OLR states that her letter
demonstrated that she had understood her misconduct and was
making changes in her life that will result in her being a
better, more diligent lawyer. The OLR then submitted the matter
to the Preliminary Review Committee, which found cause to
proceed on six of the seven original counts. The OLR then
reconsidered the sanction question, but ultimately determined
that, especially in light of the mitigating information provided
by Attorney Fulkerson and the totality of the information in the
OLR's file, a public reprimand was still the most appropriate
level of discipline to seek. The OLR then concluded that rather
than submit a second consensual reprimand to a referee under SCR
22.09, it would pursue a SCR 22.12 stipulation with Attorney
Fulkerson that would be submitted to this court for a decision.
¶7 In the resulting stipulation, Attorney Fulkerson
represents that she understands the misconduct allegations
against her and her right to contest them, that she admits them,
and that she agrees with the OLR's recommended level of
discipline. Attorney Fulkerson further states that she
understands her right to consult with another attorney regarding
these matters, that she understands the ramifications of the
stipulated level of discipline, and that she is entering into
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No. 2017AP2529-D
the stipulation knowingly and voluntarily. The stipulation also
states that it was not the product of plea-bargaining.
¶8 The counts of misconduct to which Attorney Fulkerson
is stipulating arise from her representation of La.G. and Li.G.
(collectively, "the G.s"). Li.G's illness and subsequent
complications had caused her to spend nearly a year in various
hospitals and nursing care facilities. The G.s' health
insurance carrier had also denied coverage for approximately
$27,000 in Li.G.'s medical expenses on the ground that certain
services had been medically unnecessary. The G.s retained
Attorney Fulkerson to pursue coverage for the unpaid medical
expenses and to address a potential malpractice claim against
certain health-care providers.
¶9 Attorney Fulkerson initially sent a letter to the
health insurance carrier appealing the denial of coverage for
the certain medical expenses. The insurer denied the appeal.
¶10 The G.s and Attorney Fulkerson then discussed
proceeding with a lawsuit. Attorney Fulkerson agreed to
represent the G.s on a contingent fee basis, but she failed to
draft a written fee agreement memorializing that fee
arrangement.
¶11 In November 2012 the G.s gave a check in the amount of
$270 to Attorney Fulkerson to cover the filing fee for the
anticipated civil action. Attorney Fulkerson (or someone on her
behalf) negotiated that check on December 6, 2012, depositing
the funds into Attorney Fulkerson's personal account. Attorney
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No. 2017AP2529-D
Fulkerson has acknowledged to the OLR that the funds should have
been held in trust.
¶12 At the time she began her representation of the G.s,
Attorney Fulkerson had no experience litigating medical
malpractice cases. Early in the representation Attorney
Fulkerson informed the G.s of her lack of experience in such
cases, but told them that she believed that she was familiar
with the standards of care required in medical facilities, as
she had worked in the health-care field for 15 years. Prior to
initiating the civil action, which contained medical malpractice
claims, Attorney Fulkerson did not seek guidance concerning the
specifics of litigating medical malpractice claims. During the
course of the representation, Attorney Fulkerson did consult
with several attorneys about general information concerning
litigation procedures and tactics.
¶13 Attorney Fulkerson prepared a draft complaint, which
she sent to the G.s for their review in October 2013. The G.s
reviewed the complaint and returned it to Attorney Fulkerson
within a month.
¶14 On June 2, 2014, Attorney Fulkerson filed a civil
action in the Dane County circuit court on Li.G.'s behalf
against the health insurer and a number of health-care
providers. Pursuant to Wis. Stat. § 655.445(1), because the
complaint alleged claims for bodily injury resulting from the
provision of professional services or the failure to provide
professional services by health-care providers, Attorney
Fulkerson should have filed a request for mediation with the
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No. 2017AP2529-D
director of state courts, but she failed to do so. It should
also be noted that under Wis. Stat. § 655.445(3), where
mediation must be requested, no discovery requests may be
propounded and no scheduling or pretrial court conferences may
occur until after the mediation period has expired.
¶15 In July 2014 Attorney Fulkerson sent a letter to the
circuit court advising that she would be out of town from August
10 to October 1, 2014, and asking the court to hold any
conference after that date. Attorney Fulkerson did acknowledge
that she could be available by telephone if the court wished to
meet with the parties before that time. Attorney Fulkerson did
not send a copy of the letter to her clients or otherwise relay
this information to them.
¶16 In August 2014 Attorney Fulkerson sustained an injury,
making her unable to work full-time until February 2015.
¶17 The circuit court did conduct a scheduling conference
on September 24, 2014. Attorney Fulkerson appeared by
telephone. During the conference opposing counsel again
reminded her of the need to file a request for mediation.
¶18 Attorney Fulkerson ultimately did file the mediation
request, and a mediation session was scheduled for February 10,
2015. Attorney Fulkerson, however, was not adequately prepared
for the mediation, which prevented the parties and the mediator
from having a meaningful exchange and resulted in the mediation
being terminated. Consequently, no written report was prepared.
¶19 In mid-February 2015 Attorney Fulkerson accepted
employment with a large health insurance company. She began
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No. 2017AP2529-D
that position during the first week of March 2015. Attorney
Fulkerson, however, did not inform the G.s of her new position
and her inability to continue to represent them until May 7,
2015, approximately two months later. After having been
informed of the situation, the G.s chose to have Attorney
Fulkerson seek a dismissal of the pending complaint without
prejudice. Attorney Fulkerson filed a motion to withdraw as
counsel. During a subsequent telephone scheduling conference,
Attorney Fulkerson moved to dismiss the complaint without
prejudice, which the circuit court granted.
¶20 Attorney Fulkerson told the G.s that she would provide
them with the names of other attorneys they could contact about
taking over the representation. Attorney Fulkerson, however,
failed to ever provide any such names, despite an email message
from the G.s asking for that information.
¶21 The G.s did eventually meet with three other
attorneys, but all three declined to accept the representation.
One of those attorneys informed the G.s that they had until
September 13, 2015, to re-file a complaint before the expiration
of the statute of limitations. Attorney Fulkerson had failed to
advise the G.s of this deadline. The G.s never re-filed Li.G.'s
complaint, and any claims she might have had became time-barred.
¶22 On the basis of these stipulated facts, Attorney
Fulkerson has admitted the following six counts of professional
misconduct. First, by agreeing to represent the G.s on a
contingent fee basis but failing to enter into a written fee
agreement signed by the clients, Attorney Fulkerson violated
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No. 2017AP2529-D
SCR 20:1.5(c).2 Second, Attorney Fulkerson violated former
SCR 20:1.15(b)(4)3 when she deposited the $270 check from the G.s
into her personal account rather than into a client trust
account. Third, by failing to acquire the legal knowledge
2
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.
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, (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(b)(4) provided:
Except as provided in par. (4m) unearned fees and
advanced payments of fees shall be held in trust until
earned by the lawyer, and withdrawn pursuant to sub.
(g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
9
No. 2017AP2529-D
needed to represent Li.G. in a medical malpractice action,
including knowledge regarding the requirement of mediation in
medical malpractice cases, Attorney Fulkerson violated SCR
20:1.1.4 Fourth, Attorney Fulkerson failed to pursue Li.G.'s
claims with reasonable diligence, in violation of SCR 20:1.3.5
Fifth, Attorney Fulkerson's failure to inform the G.s that if
the initial lawsuit on Li.G.'s behalf was dismissed without
prejudice, they would have until September 13, 2015 to re-file
the action constituted a violation of SCR 20:1.4(b).6 Finally,
Attorney Fulkerson violated SCR 20:1.16(d)7 in multiple ways,
including by failing to inform the G.s in a timely manner that
she needed to withdraw from representing them due to her new
4
SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
5
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
6
SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
7
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.
10
No. 2017AP2529-D
employment; by failing to withdraw from the representation until
two months after she had begun her new position; by failing to
provide the names of possible successor counsel, as she had
promised; and by failing to inform the G.'s of the date by which
they would need to re-file the lawsuit to avoid the claims
becoming time-barred.
¶23 Attorney Fulkerson agrees with the OLR's position that
the appropriate level of discipline for the misconduct described
above would be a public reprimand. In its memorandum in support
of the stipulation, the OLR compares and contrasts a number of
disciplinary matters with similar types of misconduct that
resulted in public reprimands or 60-day suspensions. Compare
Public Reprimand of Colleen J. Locke, No. 2013-3 (electronic
copy available at https://compendium.wicourts.gov/app/
raw/002551.html), Public Reprimand of Sarah Clemment, No. 2011-6
(electronic copy available at https://compendium.wicourts.gov/
app/raw/002365.html), and Public Reprimand of Daniel F. Snyder,
No. 2016-5 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002864.html) with In re
Disciplinary Proceedings Against Moldenhauer, 2016 WI 43, 369
Wis. 2d 1, 879 N.W.2d 605 (imposing 60-day suspension), and In
re Disciplinary Proceedings Against Boyle, 2015 WI 110, 365 Wis.
2d 649, 872 N.W.2d 637 (imposing 60-day suspension).
¶24 In the end we agree with the OLR that a public
reprimand is the appropriate level of discipline in this case.
Attorney Fulkerson has been admitted to the practice of law in
this state for approximately 17 years and has previously
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No. 2017AP2529-D
received only a private reprimand. While her misconduct here
was serious, it did not involve intentional misconduct or
dishonesty. It was limited to a single client representation,
where Attorney Fulkerson unfortunately agreed to handle a matter
in an area of the law where she lacked experience and
competence. We also note the mitigating factors referenced by
the OLR.
¶25 We believe that Attorney Fulkerson's misconduct is
similar in nature and severity to the misconduct committed by
Attorney Locke. Public Reprimand of Colleen J. Locke, No. 2013-
3. Attorney Locke had received one prior public reprimand,
while Attorney Fulkerson has a previous private reprimand. Like
Attorney Fulkerson, Attorney Locke agreed to represent a client
in an area of the law in which she had little experience (a
bankruptcy proceeding). She repeatedly failed to file correct
forms and schedules in the bankruptcy proceeding, which caused
delays, a motion to dismiss from the bankruptcy trustee, and her
termination from the representation. Attorney Locke admitted
that she had violated SCRs 20:1.1 (lack of competence), 20:1.3
(lack of diligence), and 20:1.5(b) and (c) (failure to enter
into written fee agreement and failure to properly explain basis
and rate of the fee). In addition, unlike Attorney Fulkerson,
in a separate matter Attorney Locke also admitted that she had
violated SCR 20:8.4(c) by falsely testifying under oath that she
had represented herself in a prior divorce proceeding. While
Attorney Fulkerson has admitted to a couple more counts of
misconduct than did Attorney Locke, the primary thrust of both
12
No. 2017AP2529-D
matters is that the lawyers demonstrated a lack of competence
and a lack of diligence, as well as failed to enter into proper
written fee agreements. Given Attorney Locke's additional false
testimony under oath, we cannot say that Attorney Fulkerson
deserves a more severe level of discipline.
¶26 In its memorandum, the OLR states that it is not
seeking restitution. It notes that the only money Attorney
Fulkerson received from the G.s was the $270. While Attorney
Fulkerson failed to maintain that amount in trust, she did
ultimately use it to pay filing fees on behalf of the G.s.
Thus, there are no funds belonging to the G.s that Attorney
Fulkerson has wrongfully retained.
¶27 After carefully reviewing this matter, we accept the
stipulation and impose the requested public reprimand. For the
reasons given by the OLR, we do not impose any restitution
obligation on Attorney Fulkerson. Finally, although a referee
did review and refuse a prior proposed consensual reprimand,
this disciplinary proceeding has been resolved at its outset
through a stipulation without the need for the appointment of a
referee or the incurring of legal fees by the OLR. Accordingly,
we do not impose costs on Attorney Fulkerson.
¶28 IT IS ORDERED that Holly Lynn Fulkerson is publicly
reprimanded for her professional misconduct.
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No. 2017AP2529-D
1