Office of Lawyer Regulation v. Thomas R. Napierala , 384 Wis. 2d 273 ( 2018 )

2018 WI 101SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1274-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Thomas R. Napierala, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Thomas R. Napierala,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST NAPIERALA
OPINION FILED: October 25, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 101NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1274-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Thomas R. Napierala, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, OCT 25, 2018
v. Sheila T. Reiff
Clerk of Supreme Court
Thomas R. Napierala,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report filed by Referee
Kim M. Peterson, adopting a stipulation between the Office of
Lawyer Regulation (OLR) and Attorney Thomas R. Napierala. The
referee agreed that Attorney Napierala committed three counts of
misconduct, as alleged in the OLR's complaint. The referee
further agreed with the parties that a public reprimand is an
appropriate level of discipline for Attorney Napierala's
misconduct, that Attorney Napierala should be ordered to pay
restitution in the amount of $15,021.66 to a former client, T.A,
No. 2017AP1274-D
and should be assessed the full costs of the proceeding, which
are $1,677.53 as of August 14, 2018.
¶2 After careful review of the matter, we conclude that
the referee's findings of fact are supported by clear,
satisfactory, and convincing evidence. We adopt the referee's
conclusions of law. We agree that the appropriate discipline
for Attorney Napierala's misconduct is a public reprimand, and
we agree that Attorney Napierala should pay restitution to T.A.,
and bear the full costs of this proceeding.
¶3 Attorney Napierala was admitted to the practice of law
in Wisconsin in 1990. He practices in Milwaukee. He has not
previously been the subject of professional discipline.
¶4 On June 30, 2017, the OLR filed a three-count
complaint against Attorney Napierala. Attorney Napierala filed
an answer and this court appointed Referee Peterson.
¶5 On March 29, 2018, the parties submitted a stipulation
in which Attorney Napierala withdrew his answer to the
complaint, admitted the facts and misconduct alleged in the
complaint, and authorized the referee to make findings of fact
and conclusions of law based on these allegations. The parties
stipulated that Attorney Napierala should be ordered to make
restitution in the amount of $15,021.66 to T.A., and that a
public reprimand was appropriate.
¶6 The referee filed her findings of fact, conclusions of
law, and recommendation for discipline on July 26, 2018. The
referee determined that the OLR had met its burden of proof with
respect to the three counts of misconduct alleged in the
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No. 2017AP1274-D
complaint, and recommends that we accept the stipulation. No
appeal was filed so we consider this matter pursuant to Supreme
Court Rule (SCR) 22.17(2).1
¶7 All three of the charges stem from Attorney
Napierala's representation of a single client, T.A. In February
2012, T.A. retained Attorney Napierala and another attorney who
worked in a different office to collaborate to challenge a
mediation agreement and settlement in a Milwaukee case to which
T.A. was a party. If the mediation agreement could be set
aside, the lawyers were to proceed with litigation seeking to
prove that T.A. was the biological son of T.J., and therefore
entitled to inherit T.J.'s estate.
¶8 In March 2012, Attorney Napierala and T.A. entered
into a fee agreement that disclosed Attorney Napierala's billing
rate but did not state that Attorney Napierala would bill T.A.
for services performed by non-lawyer staff or the rate at which
those services would be billed. The complaint alleges that T.A.
suffers from some cognitive impairment of which Attorney
Napierala was aware, and that T.A. frequently sought legal
1
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
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No. 2017AP1274-D
advice from Attorney Napierala on a number of diverse issues,
many of which were unrelated to the mediation/settlement matter.
¶9 In November 2012, T.A., Attorney Napierala, and the
other attorney executed an "Appellate Fee Agreement" wherein
T.A. agreed that his counsel could withhold and "set aside" from
an expected settlement, $25,000 for appellate litigation; each
attorney would be paid a flat fee of $6,000 for this
representation. The Appellate Fee Agreement provided that
Attorney Napierala was to pay the other attorney a referral fee
of one-third of the hourly fees Attorney Napierala earned for
representing T.A. in this matter.
¶10 In practice, sometimes the other attorney would pay
Attorney Napierala the total amount that Attorney Napierala was
due at any given time, and Attorney Napierala would in turn
write a check to the other attorney for the one-third referral
fee. Sometimes, the other attorney would subtract the one-third
referral fee before remitting payment to Attorney Napierala.
¶11 In a nutshell, Attorney Napierala failed to keep track
of his billing and payments relating to his representation of
T.A. He failed to diligently maintain records of payments he
received from T.A., or from the other attorney on behalf of
T.A., thereby causing Attorney Napierala at various times to
bill T.A. for amounts beyond what Attorney Napierala was due.
¶12 Between approximately November 2012 and December 2014,
Attorney Napierala overbilled and was overpaid by T.A. various
amounts. It appears the greatest discrepancy existed in May
2014, when Attorney Napierala had been overpaid at least
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No. 2017AP1274-D
$16,763.44. Attorney Napierala had also billed T.A. for non-
lawyer services and various other legal or administrative advice
for which T.A. did not authorize Attorney Napierala to incur
fees.
¶13 The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to credit T.A. for all
payments Attorney Napierala received from T.A.'s funds, and by
failing to credit T.A. for all of the referral fees retained by
the other attorney, Attorney Napierala billed T.A. for amounts
that Attorney Napierala was not due, Attorney Napierala violated
SCR 20:1.5(a)2 (Count One).
¶14 The OLR complaint alleged, the parties stipulated, and
the referee determined that by billing T.A. at Attorney
Napierala's hourly rate for services that were not reasonably
billable to T.A., Attorney Napierala again violated
SCR 20:1.5(a) (Count Two).
¶15 The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to communicate to T.A. at
the beginning of the representation that Attorney Napierala
intended to bill T.A. for services provided by Attorney
Napierala's non-lawyer staff and the rate at which those
services would be billed, Attorney Napierala violated
SCR 20:1.5(b)(1)3 (Count Three).
2
SCR 20:1.5(a) provides: "A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses."
3
SCR 20:1.5(b)(l) provides:
(continued)
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No. 2017AP1274-D
¶16 The referee considered the stipulation for a public
reprimand, mindful of the need to consider the seriousness,
nature, and extent of misconduct, the level of discipline needed
to protect the public and the legal system from repetition of
the misconduct, the need to impress on the attorney the
seriousness of the misconduct, and the need to deter others from
committing similar acts. See In re Disciplinary Proceedings
Against Steinberg, 2007 WI 113, ¶20, 304 Wis. 2d 577, 735
N.W.2d 527.
¶17 The referee considered prior case law, aggravating and
mitigating factors, and the ABA Standards for Imposing Lawyer
Sanctions. In re Disciplinary Proceedings Against Arthur, 2005
WI 40, 279 Wis. 2d 583, 694 N.W.2d 910, see ABA Standards for
Imposing Lawyer Sanctions, sec. 3.0 (1992) (stating that the
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 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.
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No. 2017AP1274-D
court should consider the duty violated; the lawyer's mental
state; potential or actual injury caused; and the existence of
aggravating and mitigating factors, including prior discipline
and a dishonest or selfish motive).
¶18 In this case, the referee agreed that a public
reprimand was sufficient. As the referee observed, the
misconduct is serious, but involved only one client matter, and
this is the first time that Attorney Napierala has been
disciplined in over 25 years of practice. The referee noted
that it appears that the misconduct was not intentional, but
resulted from a lack of attention to detail and failure to
clearly delineate the various interests of the actors involved.
¶19 The referee opined that the case law supports the
sanction of a public reprimand. In In re Disciplinary
Proceedings Against Schuster, 2007 WI 131, 305 Wis. 2d 120, 741
N.W.2d 471, an attorney repeatedly submitted bills overcharging
her client, failed to credit the client with payments made, and
made false representations to a tribunal. Further, the attorney
had been the subject of prior discipline on similar matters.
The court ordered a 90-day suspension of the attorney's license.
The referee reasoned that Attorney Napierala's misconduct is
substantially less serious, he has no prior discipline, and
there is no evidence of dishonesty or fraud.
¶20 The referee further recommends that the court order
Attorney Napierala to pay the stipulated restitution to T.A.,
and that the court follow its general policy and impose the full
costs of the proceeding on Attorney Napierala.
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No. 2017AP1274-D
¶21 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
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.
¶22 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
Napierala violated the supreme court rules set forth above. We
accept the referee's recommendation that a public reprimand is
an appropriate sanction for Attorney Napierala's misconduct.
Although no two fact situations are identical, a public
reprimand is generally consistent with the sanction imposed in
somewhat analogous cases.
¶23 Finally, we agree that Attorney Napierala should be
required to pay restitution to T.A. and shall pay the full costs
of this proceeding, which are $1,677.53.
¶24 IT IS ORDERED that Thomas R. Napierala is publicly
reprimanded for professional misconduct.
¶25 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thomas R. Napierala shall pay restitution to T.A.
in the stipulated amount of $15,021.66.
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thomas R. Napierala shall pay to the Office of
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No. 2017AP1274-D
Lawyer Regulation the costs of this proceeding, which are
$1,677.53 as of August 14, 2018.
¶27 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶28 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2017AP1274-D
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