Office of Lawyer Regulation v. Sonja C. Davig Huesmann , 385 Wis. 2d 49 ( 2018 )

2018 WI 114SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP1603-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Sonja C. Davig, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Sonja Davig Huesmann,
Respondent-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST HUESMANN
OPINION FILED: December 28, 2018
SUBMITTED ON BRIEFS: September 26, 2018
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ROGGENSACK, C.J., did not participate.
ATTORNEYS:
For the complainant-appellant, there were briefs filed by
Matthew F. Anich, and Office of Lawyer Regulation, Ashland.
For the respondent-respondent, there was a brief filed by
Sonja C. Davig, Holmen.
2018 WI 114NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP1603-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Sonja C. Davig, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Appellant,
DEC 28, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Sonja Davig Huesmann,
Respondent-Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
has appealed a report filed by Referee Allan E. Beatty,
accepting a stipulation filed by the OLR and Attorney Sonja C.
Davig Huesmann1 in which Attorney Davig Huesmann admitted the
1
Attorney Davig Huesmann is also known as Sonja C. Davig.
She has not, however, officially changed the name under which
she is licensed to practice law in this state. Consequently,
this order will refer to her as Attorney Davig Huesmann. See
SCR 10.03(2) and SCR 40.14(3).
No. 2016AP1603-D
eight counts of professional misconduct alleged in the OLR's
complaint. Referee Beatty recommended that Attorney Davig
Huesmann be publicly reprimanded for her misconduct. The OLR
argues that a public reprimand would unduly depreciate the
seriousness of Attorney Davig Huesmann's misconduct and that a
suspension of her license to practice law in Wisconsin is
appropriate.
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law, which were
based on the parties' stipulation. We agree with the OLR that a
public reprimand is not a sufficient sanction for the misconduct
at issue. Rather, we conclude that a 60-day suspension of
Attorney Davig Huesmann's license to practice law in Wisconsin
is appropriate. In addition, we follow our usual custom of
imposing the full costs of this proceeding, which are $10,360.04
as of May 21, 2018, on Attorney Davig Huesmann. The OLR does
not seek restitution, and we do not impose a restitution order.
¶3 Attorney Davig Huesmann was admitted to practice law
in Wisconsin in 1994. She has no prior disciplinary history.
She was formerly a member of Huesmann Law Office, S.C. in
Holmen, Wisconsin, where she practiced with her then-husband,
Mark Huesmann, until August 2013. Attorney Davig Huesmann
currently practices law with Johns, Flaherty & Collins, S.C. in
LaCrosse, Wisconsin.
¶4 Huesmann Law Office, S.C. maintained a trust account
at Seven Bridges Bank in Holmen, Wisconsin. It also maintained
a business checking account and business savings account there.
2
No. 2016AP1603-D
¶5 On August 15, 2016, the OLR filed a disciplinary
complaint alleging eight counts of misconduct against Attorney
Davig Huesmann. She filed an answer to the complaint on
November 4, 2016. The parties filed a stipulation on
October 16, 2017. The following facts are taken from the
stipulation.
¶6 On September 13, 2011, Attorney Davig Huesmann entered
an appearance as attorney for the estate of R.T. in LaCrosse
county. She remained attorney of record for the estate until it
was closed on June 7, 2013.
¶7 On June 4, 2013, Attorney Davig Huesmann deposited
over $98,000 in the firm's trust account, which included over
$68,000 in proceeds from the R.T. estate. Between the time the
money was deposited in the trust account and February of 2014,
Attorney Davig Huesmann wrote various checks from the trust
account and electronically transferred various sums from the
trust account to the firm's business account. Many of the
electronic transfers from the trust account were not recorded in
the transaction register or in any client ledgers. On multiple
dates there was less money in the trust account for the R.T.
estate than should have been there.
¶8 On February 6, 2014, the final check relating to the
R.T. estate was presented for payment, leading to a $13,726.97
overdraft on the trust account. The bank honored that check.
¶9 On February 7, 2014, Attorney Davig Huesmann deposited
a $14,000 bank check from a credit union into the trust account.
3
No. 2016AP1603-D
The memo line on the check read "RE: Christopher Perner."
Christopher Perner is Attorney Davig Huesmann's current husband.
¶10 On February 13, 2014, another trust account check was
presented for payment and resulted in an overdraft in the trust
account in the amount of $26.97. That check was also honored by
the bank. On February 18, 2014, Attorney Davig Huesmann
electronically transferred $100 from the business account to the
trust account to cover that overdraft.
¶11 On March 11, 2014, Attorney Davig Huesmann deposited
another $14,000 into the trust account. The source of that
money was a cashier's check and the remitter was Attorney Davig
Huesmann's mother.
¶12 The OLR's investigative review of Attorney Davig
Huesmann's trust account records revealed that the transaction
register, which was broken down month-by-month, was inadequate.
The register did not include the balance in the account after
each transaction, nor did it contain a beginning or ending
balance for any month. The register additionally failed to
identify the source of each deposit, and occasionally it did not
indicate the client for whom the funds were being disbursed.
Attorney Davig Huesmann failed to record over $19,000 in nine
electronic transfers from the trust account to the business
account in the trust account transaction register. Several of
the dates in Attorney Davig Huesmann's client ledgers were
incomplete; she failed to maintain monthly reconciliation
reports as required by supreme court rules; she frequently
deposited multiple deposit items at one time but the deposit
4
No. 2016AP1603-D
slips did not identify the amount or client matter associated
with each deposit item; and the memo lines of most of the checks
she disbursed from the trust account did not identify the client
matter or the purpose for the disbursement.
¶13 On February 25, 2014, the OLR sent Attorney Davig
Huesmann a letter informing her of the investigation into the
overdrafts in her trust account and requiring her to provide a
written response. In February of 2015, the OLR filed a notice
of motion and motion requesting an order to show cause why
Attorney Davig Huesmann's license should not be suspended for
her willful failure to cooperate in the OLR's investigation
concerning her conduct. After this court issued an order to
show cause, Attorney Davig Huesmann provided information which
the OLR deemed sufficient to allow it to continue its
investigation, and the order to show cause was dismissed at the
OLR's request.
¶14 In January of 2016, the OLR filed a second motion
requesting an order to show cause due to Attorney Davig
Huesmann's continued willful failure to cooperate in the OLR's
investigation. This court issued a second order to show cause.
Attorney Davig Huesmann provided the OLR with some additional
information, and the OLR subsequently withdrew its second motion
to suspend her license.
¶15 The parties' stipulation set forth the following
counts of misconduct, which were alleged in the OLR's complaint:
5
No. 2016AP1603-D
Count 1: By converting $13,732.43 belonging to the
R.T. estate to her own purposes, Attorney Davig
Huesmann violated SCR 20:8.4(c).2
Count 2: By failing to hold in trust $13,732.43
relating to the R.T. estate, Attorney Davig Huesmann
violated current SCR 20:1.15(b)(1).3
Count 3: By failing to hold $14,677.27 in trust for
those eight additional clients, Attorney Davig
Huesmann violated current SCR 20:1.15(b)(1).
Count 4: By depositing $28,000 in personal funds to
her trust account: $14,000 on February 7, 2014 and
$14,000 on March 11, 2014 in order to conceal her
conversions and failures to hold client funds in
trust, Attorney Davig Huesmann violated SCR 20:8.4(c).
Count 5: By depositing $28,000 in personal funds to
her trust account: $14,000 on February 7, 2014 and
2
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
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, 2016 WI 21 (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.
Current 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.
6
No. 2016AP1603-D
$14,000 on March 11, 2014, Attorney Davig Huesmann
violated former SCR 20:1.15(b)(3).4
Count 6: By failing to maintain trust account records
that complied with the requirements of SCR 20:1.15,
including the transaction register, client ledgers,
deposit slips, checks, and monthly reconciliations,
Attorney Davig Huesmann violated former
5
SCR 20:1.15(f)(1)a., b., d., e.1, and g.
4
Former SCR 20:1.15(b)(3) provided: "No funds belonging to
the lawyer or law firm, except funds reasonably sufficient to
pay monthly account service charges may be deposited or retained
in a trust account."
5
Former SCR 20:1.15(f)(1)a., b., d., e.1, and g. provided:
Complete records of a trust account that is a
draft account shall include a transaction register;
individual client ledgers for IOLTA accounts and other
pooled trust accounts; a ledger for account fees and
charges, if law firm funds are held in the account
pursuant to sub. (b)(3); deposit records; disbursement
records; monthly statements; and reconciliation
reports, subject to all of the following:
a. The transaction register shall contain a
chronological record of all account transactions, and
shall include all of the following:
1. the date, source, and amount of all deposits;
2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;
3. the date and amount of every other deposit or
deduction of whatever nature;
4. the identity of the client for whom funds were
deposited or disbursed; and
5. the balance in the account after each
transaction.
b. A subsidiary ledger shall be maintained for
each client or 3rd party for whom the lawyer receives
(continued)
7
No. 2016AP1603-D
trust funds that are deposited in an IOLTA account or
any other pooled trust account. The lawyer shall
record each receipt and disbursement of a client's or
3rd party's funds and the balance following each
transaction. A lawyer shall not disburse funds from
an IOLTA account or any pooled trust account that
would create a negative balance with respect to any
individual client or matter.
d. Deposit slips shall identify the name of the
lawyer or law firm, and the name of the account. The
deposit slip shall identify the amount of each deposit
item, the client or matter associated with each
deposit item, and the date of the deposit. The lawyer
shall maintain a copy or duplicate of each deposit
slip. All deposits shall be made intact. No cash, or
other form of disbursement, shall be deducted from a
deposit. Deposits of wired funds shall be documented
in the account's monthly statement.
e.1. Checks shall be pre-printed and pre-
numbered. The name and address of the lawyer or law
firm, and the name of the account shall be printed in
the upper left corner of the check. Trust account
checks shall include the words "Client Account," or
"Trust Account," or words of similar import in the
account name. Each check disbursed from the trust
account shall identify the client matter and the
reason for the disbursement on the memo line.
g. For each trust account, the lawyer shall
prepare and retain a printed reconciliation report on
a regular and periodic basis not less frequently than
every 30 days. Each reconciliation report shall show
all of the following balances and verify that they are
identical:
1. the balance that appears in the transaction
register as of the reporting date;
2. the total of all subsidiary ledger balances
for IOLTA accounts and other pooled trust accounts,
determined by listing and totaling the balances in the
individual client ledgers and the ledger for account
fees and charges, as of the reporting date; and
(continued)
8
No. 2016AP1603-D
Count 7: By making electronic (Internet) deposits to
and disbursements from her trust account from at least
January 2, 2013 through February 6, 2014, Attorney
Davig Huesmann violated former SCR 20:1.15(e)(4)c.6
Count 8: By failing to respond to multiple letters
from the OLR and by providing incomplete and
contradictory responses, necessitating the filing of
two motions for orders to show cause why her license
should not be suspended for willfully failing to
cooperate with the OLR's investigation, Attorney Davig
Huesmann violated SCR 22.03(2)7 and SCR 22.03(6),8
3. the adjusted balance, determined by adding
outstanding deposits and other credits to the balance
in the financial institution's monthly statement and
subtracting outstanding checks and other deductions
from the balance in the monthly statement.
6
Former SCR 20:1.15(e)(4)c. provided: "A lawyer shall not
make deposits to or disbursements from a trust account by way of
an Internet transaction."
7
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.
8
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."
9
No. 2016AP1603-D
which are enforced under the Rules of Professional
Conduct via SCR 20:8.4(h).9
¶16 The parties stated that the stipulation may be
admitted into evidence without any supporting testimony. The
parties further stated that the referee may file a report
reciting or incorporating the factual portions of the
stipulation as the referee's findings of fact and the referee
may recite or incorporate the stated counts of misconduct as the
referee's conclusions of law. The parties stated there was no
stipulation as to what specific discipline the referee should
recommend.
¶17 Following the filing of the stipulation, the parties
submitted briefs regarding the appropriate discipline to impose
for Attorney Davig Huesmann's misconduct. The referee issued
his report on January 12, 2018. Although the OLR had sought a
one-year suspension of Attorney Davig Huesmann's Wisconsin law
license, the referee concluded that a public reprimand was an
appropriate sanction.
¶18 The referee identified a number of aggravating factors
present in this matter: there were multiple offenses; Attorney
Davig Huesmann initially failed to comply with the OLR's
investigation; Attorney Davig Huesmann had substantial
experience in the practice of law; and client funds were
9
SCR 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)."
10
No. 2016AP1603-D
involved. The referee also identified multiple mitigating
factors: an absence of a prior disciplinary record; an absence
of a dishonest or selfish motive; personal problems; a timely
rectification of the consequences of the misconduct; a full and
free disclosure and ultimate cooperation with the OLR
proceeding; Attorney Davig Huesmann's character and reputation;
and her chemical dependency. The referee said he primarily
focused on three mitigating factors: (1) Attorney Davig
Huesmann had no prior disciplinary history; (2) her personal
problems and chemical dependency, which the referee found
contributed to her misconduct, have been addressed and
rectified; and (3) her personal problems led to her professional
problems, particularly concerning her law practice's financial
circumstances.
¶19 The referee praised Attorney Davig Huesmann for
addressing substance abuse and mental health issues and noted
that she submitted an affidavit showing that she had
successfully completed a two-year contract with the Wisconsin
Lawyer Assistance Program (WisLAP). The referee said Attorney
Davig Huesmann also productively addressed other mental health
issues with personal counseling, as evidenced by an affidavit
she presented from a counseling service.
¶20 The referee found that Attorney Davig Huesmann's
professional problems arose after the dissolution of her
marriage and then the dissolution of her law practice
partnership with her former husband. The referee said it was
not surprising that cash flow problems developed as Attorney
11
No. 2016AP1603-D
Davig Huesmann was left alone to keep her law practice afloat.
The referee commended Attorney Davig Huesmann for finding
employment in a well-established and professionally managed law
firm that has the procedures and personnel in place to deal with
trust account and other financial issues.
¶21 The referee said there is no question that Attorney
Davig Huesmann's violations are serious given that the trust of
clients was violated and large amounts of money were involved.
In addition, the referee noted that Attorney Davig Huesmann
failed to respond in a timely manner to the OLR's inquiries,
necessitating the issuance of two orders to show cause. The
referee also pointed out that some of the misconduct alleged in
the OLR's complaint occurred after Attorney Davig Huesmann had
found a safer port with her new law firm. In addition, the
referee rejected Attorney Davig Huesmann's claim that her trust
account problems were due to poor record-keeping. The referee
said the multiple transfers from the trust account to the
business account that occurred in 2013 and 2014 were not simply
mistakes but were intentionally done either by Attorney Davig
Huesmann or by someone else under her supervision.
¶22 While the referee said that the OLR made reasonable
arguments why a suspension of Attorney Davig Huesmann's license
would be appropriate, the referee ultimately concluded that a
suspension "would be more punitive than productive." The
referee opined that Attorney Davig Huesmann has already taken
the steps necessary to protect current and future clients from a
repetition of her mistakes and has already absorbed the lesson
12
No. 2016AP1603-D
of the seriousness of her misconduct. The referee noted that
there have been many instances in which this court has imposed
public reprimands for trust account related misconduct, and he
ultimately concluded that a public reprimand was an appropriate
sanction for Attorney Davig Huesmann's misconduct.
¶23 In its appeal, the OLR argues that a public reprimand
is not a sufficient level of discipline. The OLR notes that
Attorney Davig Huesmann, by virtue of the stipulation, admitted
to five trust account violations, two misconduct counts of
dishonesty, and one count of willfully failing to cooperate with
the OLR's investigation into her conduct. The OLR points out
that one of the SCR 20:8.4(c) counts, which Attorney Davig
Huesmann admitted, was converting for her own purposes over
$13,000 belonging to an estate, and the other SCR 20:8.4(c)
count, which she admitted, was depositing $28,000 in personal
funds to her trust account in order to conceal her conversions
and her failures to hold client funds in trust.
¶24 The OLR argues that some of the alleged mitigating
factors identified by the referee to justify the sanction
recommendation were either erroneous or unsupported in the
record or by case law. For example, the OLR asserts that the
referee's identification of "absence of a dishonest or selfish
motive" as a mitigating factor is clearly erroneous given the
fact that Attorney Davig Huesmann stipulated that by converting
over $13,000 belonging to the R.T. estate to her own purposes
she violated SCR 20:8.4(c). In addition, the OLR says the
referee's conclusion that there was an absence of a dishonest or
13
No. 2016AP1603-D
selfish motive is inconsistent with the referee's other
statements that Attorney Davig Huesmann's conduct violated the
trust of her clients and that the multiple transfers from the
trust account to the business account were not simply mistakes
but were intentional. The OLR argues that to the extent the
referee recommended a public reprimand based on an absence of
dishonesty, that premise is erroneous and the referee's
resulting recommendation is overly lenient.
¶25 The OLR goes on to argue that there is insufficient
credible evidence in the record for the referee to have made a
finding regarding Attorney Davig Huesmann's character and
reputation. The OLR notes the referee fails to state what he
believes Attorney Davig Huesmann's character or reputation are,
or what basis exists for his conclusion. The OLR says since any
mention of character and reputation evidence is entirely absent
in the stipulation, the referee's finding must have been gleaned
from the affidavits that Attorney Davig Huesmann filed after the
OLR had already filed its reply brief with respect to
sanctions.10
10
The OLR notes that the referee's scheduling order
required Attorney Davig Huesmann to submit to the OLR's counsel
the affidavits she proposed to file with the referee by October
27, 2017. The OLR was then to have seven days to make a request
to the referee that it be allowed to conduct discovery, an
investigation, or make its own submissions in response to the
affidavits. The OLR points out that Attorney Davig Huesmann did
not submit her affidavits until after the OLR had already filed
its sanctions brief, depriving the OLR of the opportunity to
conduct discovery, investigate, or make its own submissions.
14
No. 2016AP1603-D
¶26 The OLR notes that Attorney Davig Huesmann submitted
an affidavit dated December 1, 2017, attaching a copy of a
medical record from a counseling service in which an
unidentified writer states, referring to Attorney Davig
Huesmann, "she is very well liked in her work and has a good
reputation." The OLR says there is no indication the
unidentified writer had any information about Attorney Davig
Huesmann's reputation beyond what Attorney Davig Huesmann
herself reported. The OLR says the comments in the exhibit are
hearsay from an unknown person who has an unknown source and are
thus not reliable or admissible evidence.
¶27 The OLR also points out that Attorney Davig Huesmann's
sanctions brief to the referee stated, "Sonja's practice largely
consists of strongly advocating for her family law clients. She
has a reputation of being a very dependable attorney for her
clients." In addition, the OLR notes the sanctions brief says
that Attorney Davig Huesmann has "an exemplary reputation." The
OLR says this is argument, not evidence, and there is no
testimony or other evidence in the record to support those
assertions. Accordingly, the OLR argues there is insufficient
credible evidence in the record to support the referee's
reliance on Attorney Davig Huesmann's character and reputation
as mitigating factors.
¶28 Next, the OLR argues that Attorney Davig Huesmann's
claimed personal problems, including chemical dependency, should
not have been considered as mitigating factors because the
record does not show those issues caused her misconduct. The
15
No. 2016AP1603-D
OLR notes that Attorney Davig Huesmann's November 17, 2017,
affidavit stated that in 2010 she had first been prescribed an
anti-anxiety medication; that she suffered from a situational
substance abuse problem for which she eventually sought
treatment in 2015 through individual counseling and by
participation in WisLAP; and that her anxiety and depression
affected her ability to conquer all facets of everyday affairs
while managing a law practice. The OLR says that Attorney Davig
Huesmann's affidavit, besides being vague as to the pertinent
dates, never claims that her condition caused her professional
misconduct, nor did her sanctions brief make that claim.
¶29 The OLR also says that the paper identified as a
medical record from a counseling service attached to Attorney
Davig Huesmann's December 1, 2017 affidavit, does not say
whether she had a chemical dependency or mental disability that
caused her misconduct. In addition, the OLR says the
December 1, 2017 affidavit attached a letter from WisLAP which
also did not indicate whether Attorney Davig Huesmann had a
chemical dependency or mental disability that caused her
misconduct.
¶30 The OLR says this court has clearly stated that
causation must be found in order for a medical condition to
mitigate the sanction in a disciplinary proceeding. See, e.g.,
In re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶62,
290 Wis. 2d 30, 712 N.W.2d 877; In re Disciplinary Proceedings
Against Mandelman, 2014 WI 100, ¶54, 358 Wis. 2d 179, 851
N.W.2d 401.
16
No. 2016AP1603-D
¶31 The OLR argues that the statements in Attorney Davig
Huesmann's affidavit and her sanctions brief regarding her
personal problems are so vague with respect to dates that it is
impossible to tell what problems, if any, coincided time-wise
with her misconduct, much less whether her misconduct was
causally related to her personal problems. The OLR asserts that
since there was not sufficient credible evidence in the record
to establish that one or more of the eight counts of misconduct
were caused by Attorney Davig Huesmann's chemical dependency,
anxiety, or depression, those claimed medical issues should not
have been considered mitigating factors by the referee.
¶32 The OLR further argues that when the referee
determined the appropriate sanction he failed to distinguish
conversion of client trust fund cases from other less egregious
trust account violations and apparently considered trust account
related misconduct cases as a group. The OLR says that Attorney
Davig Huesmann's serious failings with respect to holding client
funds in trust and her dishonest professional misconduct demand
a sanction greater than just a public reprimand.
¶33 The OLR notes that this court has imposed suspensions
for misconduct far less serious than at issue here. See, e.g.,
In re Disciplinary Proceedings Against Bartz, 2015 WI 61, 362
Wis. 2d 752, 864 N.W.2d 881 (parties stipulated to a 60-day
suspension imposed for five counts of misconduct, including one
SCR 20:8.4(c) violation. The attorney had a previous private
reprimand and several administrative suspensions); In re
Disciplinary Proceedings Against Schuster, 2006 WI 21, 289
17
No. 2016AP1603-D
Wis. 2d 23, 710 N.W.2d 458 (parties stipulated to a nine-month
suspension for six counts of misconduct, including one
SCR 20:8.4(c) violation. The attorney had one prior 90-day
suspension and one prior consensual private reprimand).
¶34 The OLR says while Attorney Davig Huesmann's purported
addressing of some of her personal issues may lend sympathy to
imposing a suspension less than the one year originally
recommended by the OLR, it strenuously argues that imposing only
a public reprimand would unduly depreciate the seriousness of
the misconduct at issue, would be inconsistent with past
precedent, and would fly in the face of this court's need for
discipline to deter other attorneys from committing similar
misconduct.
¶35 Attorney Davig Huesmann argues that the referee
correctly determined that a public reprimand is an appropriate
sanction for her misconduct given the circumstances surrounding
her actions. Attorney Davig Huesmann argues she suffered from a
situational substance problem for which she eventually sought
treatment in 2015. She says in looking back at her past
conduct, "it is clear that the anxiety and depression had
affected Sonja's ability to conquer all facets of everyday
affairs while managing a law practice, working to the best of
her ability for her clients as well as adapting to raising two
young children as a single parent." She argues she continues to
excel in her substance abuse recovery and says she has made
tremendous strides with her anxiety and depression issues.
18
No. 2016AP1603-D
¶36 Attorney Davig Huesmann says she has a history of
being active in her community. She says the last several years
have been very difficult for her and that she has extreme
remorse for violating supreme court rules. She says the
misconduct at issue here is not who she is, and she argues her
mistakes should not define her but rather should refine her and
make her a better attorney and better person in the future. She
says given the totality of the circumstances, the referee's
recommendation of a public reprimand is an appropriate sanction.
¶37 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.
¶38 We adopt the referee's findings of fact, as they
appear in the stipulation, and we further agree with the
referee's conclusions of law, also set forth in the stipulation,
that Attorney Davig Huesmann violated the supreme court rules
set forth above.
¶39 With respect to the appropriate level of discipline,
after careful review, we agree with the OLR that a public
reprimand is not an adequate sanction for the misconduct at
issue here. Attorney Davig Huesmann admitted to eight counts of
misconduct, including two counts of violating SCR 20:8.4(c),
which states that it is professional misconduct for a lawyer to
19
No. 2016AP1603-D
engage in conduct involving "dishonesty, fraud, deceit or
misrepresentation." We agree with the OLR that the referee's
conclusion that there was an absence of a dishonest or selfish
motive is at odds with his statement that Attorney Davig
Huesmann violated SCR 20:8.4(c) and is also inconsistent with
his statement that "the trust of clients was violated. Large
amounts of money were involved."
¶40 As the OLR noted, this court has clearly stated that a
medical or psychological condition will not be considered in
mitigation of discipline unless the condition is explicitly
found to have caused the misconduct. See Mandelman, 2014 WI
100, ¶54; Scanlan 2006 WI 38, ¶62. While Attorney Davig
Huesmann is to be commended for addressing her personal and
substance abuse problems, there is no showing in this record
that those problems were the cause of her professional
misconduct, and they should not be considered as mitigating
factors. Similarly, there is no showing in this record, beyond
Attorney Davig Huesmann's own self-serving statements, that her
character and reputation should be viewed as mitigating factors.
In addition, although Attorney Davig Huesmann did ultimately
cooperate with the OLR's investigation, she did not do so until
she had been served with two separate orders to show cause
threatening a license suspension if she did not fully respond to
the OLR's inquiries.
¶41 To be sure, there are some mitigating factors present
in this case. Attorney Davig Huesmann has no prior disciplinary
history. It appears that she has taken up practice in a law
20
No. 2016AP1603-D
firm where she is not responsible for managing the trust
account. As we have noted, she is also to be commended for
taking steps to address her personal and substance abuse
problems and it appears that she is genuinely remorseful for her
misconduct and is determined not to repeat it.
¶42 The OLR had sought a one-year suspension of Attorney
Davig Huesmann's license to practice law in Wisconsin. We
conclude that a one-year suspension would be excessive.
However, we agree with the OLR that something more than a public
reprimand is warranted in view of the serious misconduct at
issue here. On balance, we conclude that a 60-day suspension of
Attorney Davig Huesmann's license is an appropriate sanction.
We find the case of In re Disciplinary Proceedings Against
Bartz, 2015 WI 61, which was cited by the OLR, to be somewhat
instructive.
¶43 In Bartz, the attorney stipulated to five counts of
misconduct, including one count of violating SCR 20:8.4(c).
Attorney Bartz had previously been privately reprimanded and
also had been administratively suspended on three occasions,
once for nonpayment of state bar dues and failure to file a
trust account certificate, once for noncompliance with
continuing legal education requirements, and once for
noncooperation with an OLR investigation.
¶44 The amount of the trust account conversions in
Attorney Davig Huesmann's case were much more significant than
in the Bartz case. However, Attorney Davig Huesmann has no
prior disciplinary history. Although no two disciplinary
21
No. 2016AP1603-D
matters are ever identical, we conclude that, as in Bartz, a 60-
day suspension is an appropriate sanction for Attorney Davig
Huesmann's misconduct. In addition, we deem it appropriate, as
is our normal custom, to impose the full costs of this
proceeding on Attorney Davig Huesmann.
¶45 IT IS ORDERED that the license of Sonja Davig
Huesmann, also known as Sonja C. Davig, to practice law in
Wisconsin is suspended for a period of 60 days, effective
February 8, 2019.
¶46 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Sonja Davig Huesmann, also known as Sonja C.
Davig, shall pay to the Office of Lawyer Regulation the costs of
this proceeding, which are $10,360.04 as of May 21, 2018.
¶47 IT IS FURTHER ORDERED that Sonja Davig Huesmann, also
known as Sonja C. Davig, 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.
¶48 IT IS FURTHER ORDERED that compliance with all
conditions with this order is required for reinstatement. See
SCR 22.28(2).
¶49 PATIENCE DRAKE ROGGENSACK, C.J., did not participate.
22
No. 2016AP1603-D
1