Office of Lawyer Regulation v. Kleinsmith (In Re Kleinsmith) ( 2018 )

2018 WI 50
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2540-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Philip M. Kleinsmith, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Philip M. Kleinsmith,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KLEINSMITH
OPINION FILED: May 16, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 50
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2540-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Philip M. Kleinsmith, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, May 16, 2018
v. Sheila T. Reiff
Clerk of Supreme Court
Philip M. Kleinsmith,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
and Attorney Philip M. Kleinsmith have filed a stipulation
pursuant to Supreme Court Rule (SCR) 22.121 agreeing that
1
SCR 22.12 provides:
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may
consider the complaint and stipulation without the
appointment of a referee, in which case the supreme
court may approve the stipulation, reject the
(continued)
No. 2017AP2540-D
Attorney Kleinsmith's license to practice law in Wisconsin
should be revoked, as discipline reciprocal to that imposed by
the Supreme Court of Colorado. Upon careful review of the
matter, we approve the stipulation and impose the stipulated
reciprocal discipline. The OLR does not seek the imposition of
costs against Attorney Kleinsmith because this matter was
resolved without the need for a referee or a lengthy proceeding,
and we impose no costs. We do require Attorney Kleinsmith to
comply with all of the conditions of the disciplinary orders
stipulation, or direct the parties to consider
specific modifications to the stipulation.
(2) If the supreme court approves a stipulation,
it shall adopt the stipulated facts and conclusions of
law and impose the stipulated discipline.
(3) If the supreme court rejects a stipulation, a
referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(3m) If the supreme court directs the parties to
consider specific modifications to the stipulation,
the parties may, within 20 days of the date of the
order, file a revised stipulation, in which case the
supreme court may approve the revised stipulation,
adopt the stipulated facts and conclusions of law, and
impose the stipulated discipline. If the parties do
not file a revised stipulation within 20 days of the
date of the order, a referee shall be appointed and
the matter shall proceed as a complaint filed without
a stipulation.
(4) A stipulation rejected by the supreme court
has no evidentiary value and is without prejudice to
the respondent's defense of the proceeding or the
prosecution of the complaint.
2
No. 2017AP2540-D
imposed on him by the Colorado Supreme Court, which include a
requirement that he pay restitution in the Colorado matter.
¶2 Attorney Kleinsmith was admitted to practice law in
Colorado in 1967. He presently resides in Colorado. He was
admitted to practice law in Wisconsin in 1999 and, at some
point, was also admitted to practice law in Arizona. In 2013,
this court publically reprimanded Attorney Kleinsmith as
discipline reciprocal to a reprimand imposed by the Arizona
Supreme Court, for filing improper arbitration certificates in
nine different matters; failing to appear at a hearing; failing
to properly serve a party; failing to properly withdraw as
counsel; and filing documents with errors and omissions. Public
Reprimand of Philip M. Kleinsmith, No. 2013-10 (electronic copy
available at https://compendium.wicourts.gov/app/
raw/002602.html). His Wisconsin law license has been suspended
since October 31, 2017, for failure to pay mandatory state bar
dues and failure provide an OLR certification.
¶3 On October 30, 2017, the Supreme Court of Colorado
entered an order disbarring Attorney Kleinsmith in Colorado for
professional misconduct. The misconduct giving rise to his
Colorado disbarment dates from 2012, when Attorney Kleinsmith
hired a title company to work on several foreclosure matters in
which his firm represented a bank. Attorney Kleinsmith billed
the bank for the title company's work, but after the bank paid
him, he converted those funds to his own use, instead of paying
the title company.
3
No. 2017AP2540-D
¶4 The Colorado Supreme Court found that Attorney
Kleinsmith's conduct violated Colorado Rules of Professional
Conduct (RPC) 8.4(c), 1.15A and former RPC l.15(b). Attorney
Kleinsmith was ordered to pay $56,238.80 in restitution to First
American Title Company of Montana.
¶5 Attorney Kleinsmith then failed to notify the OLR of
his Colorado disbarment within 20 days of its effective date.
SCR 22.22(1).
¶6 On December 29, 2017, the OLR filed a complaint
against Attorney Kleinsmith alleging two counts of misconduct.
First, by virtue of his Colorado disbarment, Attorney Kleinsmith
is subject to reciprocal discipline in Wisconsin pursuant to
SCR 22.22(3) (Count 1). Second, by failing to notify OLR of his
disbarment in Colorado for professional misconduct within 20
days of the effective date of its imposition, Attorney
Kleinsmith violated SCR 22.22(1) (Count 2).
¶7 On February 22, 2018, Attorney Kleinsmith entered into
a stipulation with the OLR in which he agreed that the facts
alleged in the OLR's complaint support the revocation of his
license to practice law in Wisconsin, as discipline reciprocal
to that imposed by the Supreme Court of Colorado.
¶8 Supreme Court Rule 22.22(3) provides that this court
shall impose the identical discipline imposed in another
4
No. 2017AP2540-D
jurisdiction unless one or more of three exceptions apply.2 In
his stipulation, Attorney Kleinsmith states that he does not
claim any of the defenses found in SCR 22.22(3), and he agrees
that this court should revoke his license to practice law in
Wisconsin.
¶9 Attorney Kleinsmith also states that the stipulation
did not result from plea bargaining and that he does not contest
the facts and misconduct alleged by the OLR. Attorney
Kleinsmith further states that he agrees the facts alleged in
the OLR's complaint may form a basis for the discipline
requested by the OLR director. He further avers that he fully
understands the misconduct allegations; fully understands the
ramifications should this court impose the stipulated level of
discipline; fully understands his right to contest the matter;
fully understands his right to consult with counsel; avers that
his entry into the stipulation is made knowingly and
voluntarily; that he has read the OLR's complaint and the
stipulation and that his entry into the stipulation represents
2
In this matter, the discipline we impose – revocation – is
nearly identical. The respective court rules of Wisconsin and
Colorado dictate a slightly different result. In Colorado,
"disbarment" is defined as "revocation of an attorney's license
to practice law . . . " subject to a formal "readmission"
proceeding. In Colorado, disbarment shall be for "at least
eight years." See C.R.C.P. 251.6(a). Wisconsin uses the term
"revocation," not disbarment. See SCR 21.16(1m)(a). In
Wisconsin, an attorney whose license has been revoked may seek
reinstatement after five years. See SCR 22.29(2).
5
No. 2017AP2540-D
his decision not to contest the misconduct alleged in the
complaint or the level and type of discipline sought by the OLR.
¶10 In the memorandum submitted in support of the
stipulation, the OLR recommends this court also order Attorney
Kleinsmith to comply with the Colorado Supreme Court's decision,
which requires Attorney Kleinsmith to make restitution. See,
e.g., In re Disciplinary Proceedings Against Manion, 2016 WI 88,
372 Wis. 2d 34, 886 N.W.2d 371 (ordering attorney in a
reciprocal discipline case who was directed to pay restitution
in another state to comply with "all conditions of the
disciplinary orders imposed on him by the Arizona Supreme Court
required for reinstatement").
¶11 We accede to the OLR's request regarding restitution.
The court notes that in the event Attorney Kleinsmith ever seeks
reinstatement of his Wisconsin law license, he would need to
demonstrate, pursuant to SCR 22.29(4m), that he has made the
restitution ordered by the Colorado Supreme Court or explain his
failure to do so.
¶12 Upon review of this matter, we accept the stipulation
and revoke Attorney Kleinsmith's license to practice law in
Wisconsin, as discipline reciprocal to that imposed by the
Supreme Court of Colorado. Because this matter has been
resolved by means of a stipulation without the appointment of a
referee and because the OLR has not requested the imposition of
costs, we do not impose any costs upon Attorney Kleinsmith.
6
No. 2017AP2540-D
¶13 IT IS ORDERED that the license of Philip M. Kleinsmith
to practice law in Wisconsin is revoked, effective the date of
this order.
¶14 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Philip M. Kleinsmith shall comply with the
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been revoked.
¶15 IT IS FURTHER ORDERED that compliance with all
conditions of this order, as well as compliance with all
conditions of the disciplinary orders imposed on him by the
Colorado Supreme Court are required for Philip M. Kleinsmith's
reinstatement. See SCR 22.29(4)(c).
7
No. 2017AP2540-D
1