Office of Lawyer Regulation v. Matthew T. Luening , 2023 WI 76 ( 2023 )

2023 WI 76SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2166-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Matthew T. Luening, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Matthew T. Luening,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST LUENING
OPINION FILED: December 15, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
ATTORNEYS:
2023 WI 76NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2166-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Matthew T. Luening, Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant, DEC 15, 2023
v. Samuel A. Christensen
Clerk of Supreme Court
Matthew T. Luening,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This matter returns to the court
following remand to Referee James J. Winiarski.
¶2 Attorney Matthew Luening was admitted to practice law
in Wisconsin in 2010 and practices in Milwaukee. His
disciplinary history consists of two consensual public
No. 2020AP2166-D
reprimands. Public Reprimand of Matthew T. Luening, No. 2017-3;1
Public Reprimand of Matthew T. Luening, No. 2017-10.2
¶3 On December 29, 2020, the Office of Lawyer Regulation
(OLR) filed a complaint against Attorney Luening, alleging
twelve counts of misconduct. Seven of those counts arose out of
Attorney Luening's practice before an immigration tribunal.
Attorney Winiarski was appointed referee. During the pendency
of the case, the referee granted summary judgment in favor of
OLR on one count of misconduct, and OLR dismissed one count.
Following an evidentiary hearing, the referee issued a report
finding that OLR met its burden of proof with respect to six of
the counts of misconduct alleged in the complaint, including
three of the immigration-based counts. The referee recommended
a six-month suspension of Attorney Luening's license to practice
law.
¶4 Attorney Luening appealed, arguing that a six-month
suspension was excessive. The OLR cross-appealed, arguing that
the referee erred in finding that OLR failed to meet its burden
of proof on one of the alleged counts of misconduct and that a
six- month suspension was inadequate.
¶5 In advance of oral argument, the court learned that on
the same day it filed the complaint against Attorney Luening,
Electronic
1 copy available at
https://compendium.wicourts.gov/app/6a7e2925573043408b558b4b0a75
2f7f6b1d1933.continue?action=detail&detailOffset=1.
Electronic
2 copy available at
https://compendium.wicourts.gov/app/6a7e2925573043408b558b4b0a75
2f7f6b1d1933.continue?action=detail&detailOffset=0.
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No. 2020AP2166-D
OLR filed a complaint in another case involving an attorney's
immigration practice. The complaint filed in the other case
cited both the Wisconsin Rules of Professional Conduct alleged
to have been violated as well as the rules promulgated by the
Executive Office of Immigration Review (EOIR), as set forth in 8
C.F.R. § 1003.102.
¶6 On February 24, 2023, we ordered the first seven
counts alleged in the complaint in this proceeding, all of which
arose out of Attorney Luening's representation of clients before
an immigration tribunal, dismissed because those counts should
have been pleaded under the rules promulgated by EOIR rather
than under Wisconsin's Rules of Professional Conduct. We
remanded the matter to the referee for a recommendation on the
appropriate sanction for the remaining non-immigration related
counts of misconduct found by the referee. See In re
Disciplinary Proceedings Against Luening, 2023 WI 12, 406 Wis.
2d 1, 985 N.W.2d 773. (Luening I).
¶7 On remand, the referee asked the parties to file
briefs on the sanction issue. Both parties advocated for a
suspension not to exceed 60 days. On May 10, 2023, the referee
issued a Report Following Remand in which he concluded that a
60-day suspension of Attorney Luening's license to practice law
in Wisconsin would be an appropriate sanction for the remaining
counts of misconduct. The referee also recommended that
Attorney Luening should be responsible for 25% of the costs in
this case, which would be $8,639.22.
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No. 2020AP2166-D
¶8 Since no appeal was filed from the Referee's Report
Following Remand, we review the report pursuant to Supreme Court
Rule (SCR) 22.17(2).3 After careful review of the matter, and
noting the unique circumstances of this case, we agree that
Attorney Luening's non-immigration related misconduct warrants a
60-day suspension. We also agree that Attorney Luening should
be assessed 25% of the costs of this proceeding.
¶9 Three of the non-immigration based counts of
misconduct alleged in OLR's complaint arose out of Attorney
Luening's representation of L.S. L.S. is from Kenya but has
spent considerable time in the Milwaukee area. In 2013, L.S. was
living in the Milwaukee area with her husband. She had
previously used Attorney Luening's legal services in efforts to
secure a green card for her son. As a result of that
representation, Attorney Luening and L.S. became close friends.
¶10 L.S. and her husband returned to Kenya in 2013.
L.S.'s husband was in the military. He passed away while the
couple was in Kenya, and L.S. applied for military benefits as a
result of his death. When L.S. ran into problems securing the
benefits, she asked Attorney Luening, who was in Milwaukee, for
help. Attorney Luening and L.S. communicated via Skype, email,
and written correspondence. Attorney Luening agreed to help
3 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. 2020AP2166-D
L.S. obtain the military benefits. There was no discussion of
legal fees and no written fee contract. Attorney Luening said
he had no intention of charging his friend for his help.
¶11 In order to secure the military death benefits, L.S.
executed a Wisconsin General Durable Power of Attorney on
October 25, 2016 while she was in Kenya. The power of attorney
was a general grant of many powers to the named agent, Attorney
Luening, and it gave Attorney Luening powers over L.S.'s banking
and other financial transactions. The power of attorney also
included powers to resolve the military benefits issue.
¶12 In his communications with authorities while
attempting to secure military benefits for L.S., Attorney
Luening referred to L.S. as his client.
¶13 In March 2018, Attorney Luening received notice that
L.S. would receive the death benefits. In a March 18, 2018
letter to L.S., Attorney Luening said he was happy they were
able to deal successfully with the military. He also said, "My
representation as your attorney is now ended, as I see it."
¶14 In April 2018, L.S. sent Attorney Luening a check for
$3,000 accompanied by a note in which L.S. said the money was to
thank Attorney Luening for helping her with the military
benefits issue. Attorney Luening sent L.S. a handwritten letter
that month in which he discussed his financial problems. In a
May 4, 2018 letter to Attorney Luening, L.S. said:
I received your mssge (sic) and note Babe. I can help
you. I can lend you $25,000 if you need it. You can
deposit payments when I come over.
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¶15 No further communication occurred between L.S. and
Attorney Luening about a loan agreement or about the terms of a
loan such as the type of disbursement that would be made or the
repayment of interest.
¶16 In June 2018, using the power of attorney L.S. had
signed, Attorney Luening began making electronic withdrawals
from L.S.'s checking account and transferring the funds to his
bank account for his own personal use. He did not provide L.S.
notice of the electronic withdrawals.
¶17 Between June 28, 2018 and January 2, 2019, Attorney
Luening stated that he made thirteen withdrawals totaling
$23,600. L.S. said the number and total amounts of the
withdrawals was greater.
¶18 L.S. returned to Milwaukee from Kenya in February
2019. Between January 28, 2019 and February 8, 2019, Attorney
Luening withdrew an additional $7,200 from L.S.'s checking
account to cover the expense of her hotels, food, security
deposit at her Milwaukee apartment, cell phone, and for expenses
Attorney Luening and his staff incurred taking L.S. shopping,
looking for apartments, taking her to visit friends in town, and
making trips back and forth to his office. L.S. knew and
approved of those withdrawals.
¶19 On or about February 22, 2019, L.S. paid Attorney
Luening $10,000 in attorney's fees for his representation in the
military benefits matter. Attorney Luening did not provide L.S.
with any billing statements for his work in representing her in
that matter.
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No. 2020AP2166-D
¶20 Beginning in June 2019, Attorney Luening began making
payments, via electronic deposits and cashier's checks, to L.S.
as repayment for the purported loan. As of March 10, 2020,
Attorney Luening had repaid L.S. $33,000. Attorney Luening
considered the purported loan amount to be $23,600 and interest
to be $9,400.
¶21 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Luening's dealings with
L.S.:
Count 8: By failing to communicate to [L.S.] in
writing the scope of his representation or the basis
or rate of his fee or expenses for which [L.S.] would
be responsible, [Attorney] Luening violated SCR
20:1.5(b)(1). 4
Count 9: Having formerly represented [L.S.], by using
his knowledge of [L.S.]'s funds in the . . . checking
account to the disadvantage of [L.S.], [Attorney]
Luening violated SCR 20:1.9(c)(1).5
4 SCR 20:1.5(b)(1) provides: "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."
5 SCR 20:1.9(c)(1) provides: "A lawyer who has formerly
represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not
thereafter use information relating to the representation to the
disadvantage of the former client except as these rules would
permit or require with respect to a client, or when the
information has become generally known."
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Count 10: By misappropriating [L.S.]'s funds for his
own personal use, [Attorney] Luening violated SCR
20:8.4(c).6
¶22 The last two non-immigration related counts alleged in
OLR's complaint arose out of Attorney Luening's practicing law
while his license was suspended.
¶23 On April 5, 2019, the Wisconsin Board of Bar Examiners
(BBE) sent a Notice of Noncompliance to Attorney Luening
advising him that he had until June 4, 2019 to complete his
2017-2018 mandatory continuing legal education (CLE)
requirements and informing him that if he did not become
compliant, his law license would be automatically suspended on
June 5, 2019. The notice also stated that the CLE report and
any unpaid late fee must be received no later than June 4, 2019
in order for him to remain eligible to practice law in
Wisconsin.
¶24 Attorney Luening acknowledged that he received notice
prior to June 5, 2019. Although he timely obtained the
necessary CLE credits and filed a CLE report showing compliance,
he failed to pay the late fee by June 4, 2019.
¶25 On June 5, 2019, BBE suspended Attorney Luening's
Wisconsin law license for noncompliance with the 2017-2018
mandatory CLE requirements because the late fee had not been
paid. The BBE sent a memorandum to the clerk of this court and
all judges of courts of record in Wisconsin listing the
6SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
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No. 2020AP2166-D
attorneys who were suspended as of that date for failure to
comply with CLE requirements. Attorney Luening's name was on
the list. The BBE also mailed Attorney Luening a notice on that
date informing him that his law license had been suspended.
¶26 Due to the suspension of his Wisconsin law license,
Attorney Luening was not eligible to practice in any United
States immigration court, per 8 C.F.R. § 1292.1. Attorney
Luening continued to practice law and represent clients on June
5, 6, and 7, primarily in criminal and immigration matters,
including appearing in court and by phone, as well as filing
motions. He did not inform any of the courts presiding over
those matters of his suspension.
¶27 When Attorney Luening learned that he had failed to
pay the late fee, he stopped practicing law and took immediate
action to remedy the situation. On June 10, 2019, Attorney
Luening filed a petition for reinstatement with BBE in which he
reported compliance with the 2017-2018 mandatory CLE
requirements, identified the instances in which he had practiced
law during the period of suspension, and verified that he had
paid the $200 reinstatement fee.
¶28 On June 10, 2019, Attorney Luening's license to
practice law was reinstated.
¶29 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Luening's practice of law
while suspended:
Count 11: By appearing on behalf of clients and
filing motions on behalf of clients in circuit court
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No. 2020AP2166-D
while subject to a CLE suspension, [Attorney] Luening
violated SCR 31.10(1)7 and SCR 22.26(2)8, enforceable
via SCR 20:8.4(f).9
Count 12: By appearing on behalf of clients in
immigration court while he was not eligible to
practice law in immigration court, [Attorney] Luening
violated SCR 20:5.5(a)(1).10
7 SCR 31.10(1) provides: "If a lawyer fails to comply with
the attendance requirement of SCR 31.02, fails to comply with
the reporting requirement of SCR 31.03(1), or fails to pay the
late fee under SCR 31.03(2), the board shall serve a notice of
noncompliance on the lawyer. This notice shall advise the lawyer
that the lawyer’s state bar membership shall be automatically
suspended for failing to file evidence of compliance or to pay
the late fee within 60 days after service of the notice. The
board shall certify the names of all lawyers so suspended under
this rule to the clerk of the supreme court, all supreme court
justices, all court of appeals and circuit court judges, all
circuit court commissioners appointed under SCR 75.02(1) in this
state, all circuit court clerks, all juvenile court clerks, all
registers in probate, the executive director of the state bar of
Wisconsin, the Wisconsin State Public Defender’s Office, and the
clerks of the federal district courts in Wisconsin. A lawyer
shall not engage in the practice of law in Wisconsin while his
or her state bar membership is suspended under this rule."
8 SCR 22.26(2) provides: "An attorney whose license to
practice law is suspended or revoked or who is suspended from
the practice of law may not engage in this state in the practice
of law or in any law work activity customarily done by law
students, law clerks, or other paralegal personnel, except that
the attorney may engage in law related work in this state for a
commercial employer itself not engaged in the practice of law."
9 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."
10 SCR 5.5(a)(1) provides: "A lawyer shall not practice law
in a jurisdiction where doing so violates the regulation of the
legal profession in that jurisdiction except that a lawyer
admitted to practice in Wisconsin does not violate this rule by
conduct in another jurisdiction that is permitted in Wisconsin
under SCR 20:5.5 (c) and (d) for lawyers not admitted in
Wisconsin."
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No. 2020AP2166-D
¶30 OLR dismissed Count 12 during the pendency of this
action.
¶31 In his Report Following Remand, the referee found that
OLR had met its burden of proof as to Counts 8, 10, and 11 of
the complaint.
¶32 With respect to the counts relating to L.S., the
referee noted that Attorney Luening was successful in securing
military benefits for L.S. The referee also noted that in the
letter Attorney Luening wrote to L.S. confirming that successful
outcome, Attorney Luening made no request for any legal fees.
The referee said, "Much later, and upon her return from Kenya to
Milwaukee in 2019, [L.S.] voluntarily gave [Attorney] Luening a
$10,000 payment. There was no bill issued by [Attorney] Luening
in relation to the $10,000 payment and it apparently was an
amount [L.S.] came up with on her own to show her appreciation
for [Attorney] Luening's services." The referee went on to say:
Count 8 of the complaint alleges that [Attorney]
Luening failed to communicate to [L.S.] in writing the
scope of his representation or the basis or the rate
for his fee. Despite the fact that [Attorney] Luening
never had any intention of charging his friend for his
legal services, [Attorney] Luening was a lawyer and
did perform legal services for [L.S.] without any
discussion or written agreement in relation to the
cost of his legal services. There should have been
some discussion or writing between [Attorney] Luening
and [L.S.] in relation to the cost of such legal
services. If [Attorney] Luening did not intend to
charge her anything for his legal services, that
should have been conveyed to [L.S.] at the beginning
of the representation. While I find [Attorney]
Luening's gratuitous thinking in relation to his close
friend, [L.S.], to be a friendship gesture, as a
lawyer, he was still required to convey intended
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No. 2020AP2166-D
charges or lack thereof to [L.S.] His failure to do
so is a violation of SCR 20:1.5(b)(1). His gratuitous
and friendship goals are more of a mitigating factor
to be considered by me in recommending appropriate
discipline for this violation of the rules.
¶33 In finding that OLR failed to meet its burden of proof
with respect to Count 9 of the complaint, the referee said that
the evidence showed that L.S. "knew perfectly well that the
power of attorney allowed [Attorney] Luening access to her
[bank] account and she benefitted from his continuing access to
her accounts." The referee said L.S. testified at the
evidentiary hearing that she thought the proceeds from the
military benefits claim were being deposited into her bank
accounts; she thought additional benefits were due her; the
power of attorney she gave to Attorney Luening was not only to
obtain the military benefits but also to have him help her with
the military benefits after they were deposited into her
accounts; and she never revoked the power of attorney. The
referee also noted that L.S. testified that she never arranged
for her bank statements to be forwarded to her in Kenya; she
knew the statements were being sent to her old address in
Milwaukee; and she had no way to access her bank account other
than through Attorney Luening.
¶34 The referee rejected OLR's claim that Attorney Luening
used his knowledge of L.S.'s bank accounts as a result of
"formerly" representing her in obtaining the military benefits.
Rather, the referee said:
The representation of [L.S.] by [Attorney] Luening and
the use of the power of attorney was continuous at
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No. 2020AP2166-D
[L.S.]'s directions to [Attorney] Luening. [L.S.]
knew that [Attorney] Luening continued to have the
power of attorney and she made use of the power by
directing [Attorney] Luening to conduct certain
transactions with the [bank] accounts. [L.S.] knew
she had given [Attorney] Luening the general durable
power of attorney and that it remained in effect even
after some of the military benefits had been received
as a result of [Attorney] Luening's
efforts. . . . [L.S.] benefitted from and directed
further use of the power of attorney by [Attorney]
Luening.
¶35 The referee found that the evidence showed a close
personal relationship between L.S. and Attorney Luening while
she was residing in Kenya, with considerable communications of a
personal nature. The referee said after Attorney Luening
indicated he was experiencing financial problems, L.S.
responded, "I can help you. I can lend you $25,000 if you need
it. You can deposit payments when I come over." The referee
found Attorney Luening's testimony that he believed L.S. was
offering him a loan up to $25,000 that he could repay when she
returned to Milwaukee a plausible interpretation of L.S.'s
statement to him. By contrast, the referee said the language of
the communication did not support L.S.'s claim that she meant
she would consider making a loan to Attorney Luening when she
returned to Milwaukee. The referee said although L.S. claimed
she did not have any money to make the loan when she sent her
communication to Attorney Luening, "She knew the military death
benefits were going into her [bank] accounts" and "she knew
perfectly well that she had given [Attorney Luening] a power of
attorney that gave him access to the . . . accounts." The
referee also said, "While there is some nominal disputes as to
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No. 2020AP2166-D
the exact amounts removed by [Attorney] Luening from [L.S.]'s
accounts, all of the money removed has been returned by
[Attorney] Luening to [L.S.] and OLR does not claim . . . any
additional amount is still owed by [Attorney] Luening in
relation to the loans."
¶36 The referee found that OLR met its burden of proof
with respect to Count 10 of the complaint, and he found that
Attorney Luening did violate SCR 20:8.4(c) by removing money
from L.S.'s accounts. However, the referee rejected OLR's
contention that Attorney Luening planned to use L.S.'s power of
attorney to "misappropriate" her funds. The referee said:
[Attorney] Luening did not make gifts to himself using
the power of attorney. He made loan payments to
himself which he believed [L.S.] had offered to him.
There is no evidence that [Attorney] Luening ever
suggested the loan amounts were gifts. . . .
[L.S.] was a nurse and thus highly educated. . . .
While I have found [Attorney] Luening, as a lawyer,
should have further clarified the loan offer from a
client, [L.S.] needs to take responsibility for the
language she used. Also, her claim that she did not
realize [Attorney] Luening had the ability to transfer
money from her account lacks credibility, given that
she was the one who actually gave such power to him in
the power of attorney she prepared and signed.
¶37 Finally, with respect to Attorney Luening's practicing
law while suspended, the referee noted that he had previously
granted OLR's motion for summary judgment on Count 11, and the
referee described Attorney Luening's failure to pay the late
fees to BBE "an oversight . . . and not a deliberate act of
defiance."
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No. 2020AP2166-D
¶38 Turning to the appropriate level of discipline for the
three counts of misconduct, the referee noted that courts should
consider: (1) the duty violated; (2) the lawyer's mental state;
(3) the potential or actual injury caused by the lawyer's
conduct; and (4) the existence of aggravating or mitigating
factors. In re Disciplinary Proceedings Against Grogan, 2011 WI
7, ¶15 n.9, 331 Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA
Standards for Imposing Lawyer Sanctions, as amended in 1992, as
a guidepost).
¶39 The referee noted that Attorney Luening's two public
reprimands did not adequately demonstrate to Attorney Luening
the need to scrupulously comply with Supreme Court Rules. The
referee also noted that this court has recognized the need for
progressive discipline in attorney disciplinary cases. In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, ¶27,
296 Wis. 2d 47, 719 N.W.2d 501.
¶40 With respect to the two counts involving L.S., the
referee said Attorney Luening believed L.S. was offering him a
loan of up to $25,000, and although he should have clarified and
documented the loan offer, Attorney Luening did not outright
steal L.S.'s money. The referee said:
[Attorney Luening] was fully aware that [L.S.] would
learn of the loans upon her return to Milwaukee.
Also, he actually arranged for bank statements to be
sent to her upon her return to Milwaukee. He did not
try to hide the loan amounts he received. He repaid
the loans and he claims with interest. While the
evidence in regard to the repayments of the loans was
not clear, OLR does not argue in its post-hearing
briefs that any amount remains due. Nonetheless,
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No. 2020AP2166-D
[Attorney] Luening should have known that he needed to
confirm [L.S.]'s willingness to make the loan and he
should have kept her inform[ed] of the amounts he was
taking from her account. In essence, both [L.S.] and
[Attorney] Luening were sloppy in how both of them
approached the loan. However, [Attorney] Luening was
the professional attorney who should have realized the
need to further document the situation.
¶41 The referee went on to say:
While I have found that [Attorney] Luening should have
had a fee agreement or at least something in writing
when he began helping [L.S.] obtain the military
benefits due her as a result of her husband's death,
it is clear from the evidence that [Attorney] Luening
did not intend to charge her anything for his legal
services. While OLR suggests in their briefs some
sort of evil motive and intent to ultimately charge
[L.S.] for the services, I did not find anything of
the sort in the evidence. . . . I do not see this as a
classic case where a lawyer simply did not provide a
fee contract to a client. . . . There certainly are
mitigating circumstances to be taken into account in
both the fee contract and loan counts.
¶42 The referee concluded that a 60-day suspension was an
appropriate sanction for Attorney Luening's misconduct.
¶43 As to the assessment of costs, the referee noted that
this court's general policy is to impose all costs upon a
finding of misconduct. SCR 22.24(1m). The referee noted that
OLR's complaint alleged twelve counts of misconduct, while the
referee was tasked with recommending an appropriate sanction for
only three of those counts. The referee noted that SCR
22.24(1m) sets forth the factors to be considered in assessing
costs. The referee said:
I believe the two most important factors in relation
to the assessment of costs in this case are that
[Attorney] Luening has previously received two public
reprimands, each involving multiple violations.
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No. 2020AP2166-D
However, I cannot ignore the fact that the respondent
has only been found responsible on three of twelve
counts. Seven of the original 12 counts were
improperly charged. While mathematical equality is
not always required, I believe the respondent should
be responsible for 25% of the costs in this case.
¶44 This court will adopt a referee's findings of fact
unless they are 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 recommendations. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686.
¶45 We adopt the referee's findings of fact and
conclusions of law and find that Attorney Luening violated the
Supreme Court Rules as alleged in Counts 8, 10, and 11 of the
complaint. After careful consideration, we also agree with the
referee that a 60-day suspension of Attorney Luening's license
to practice law in Wisconsin is an appropriate sanction for his
misconduct, and we agree with the referee's recommendation on
the imposition of costs.
¶46 We frequently say that since no two disciplinary
cases are precisely the same, there is no standard sanction for
any particular misconduct. We find, however, that the counts of
misconduct found by the referee in this case are somewhat
similar to the misconduct at issue in In re Disciplinary
Proceedings Against Toran, 2018 WI 26, 380 Wis. 2d 531, 909
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No. 2020AP2166-D
N.W.2d 411 and In re Disciplinary Proceedings Against Bartz,
2015 WI 61, 362 Wis. 2d 752, 864 N.W.2d 881.
¶47 In Bartz, we imposed a 60-day suspension for five
counts of professional misconduct that included a violation of
SCR 20:8.4(c) that was more egregious than the violation that
occurred in the instant case since Attorney Bartz, after
settling a personal injury claim, disbursed monies held in trust
to himself, leaving no funds in trust attributable to his client
or the client's medical provider. Attorney Bartz's disciplinary
history consisted of a consensual private reprimand. In Toran,
we imposed a 60-day suspension for three counts of misconduct
that included failing to enter into a written fee agreement with
a client and failing to return an advanced payment of fees when
the attorney did not complete the work for which he was
retained. Attorney Toran's disciplinary history consisted of
two consensual public reprimands, a consensual private
reprimand, and a six-month suspension.
¶48 Here, the referee found Attorney Luening's failure to
pay the late fee associated with his lack of timely compliance
with mandatory CLE requirements to be an oversight. Although
Attorney Luening practiced law for several days after his law
license was suspended, as soon as he learned he had not paid the
late fee, he ceased practicing law and took immediate steps to
correct his error. Although his practice of law during those
few days is a violation of the rules of professional misconduct,
standing alone it would not warrant a license suspension.
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No. 2020AP2166-D
¶49 Attorney Luening's misconduct related to L.S. is
obviously more serious. Even if Attorney Luening did not intend
to charge his friend for assisting her in obtaining military
benefits following the death of her husband, as an attorney he
had the obligation to clearly communicate with L.S. regarding
the issue of fees. The fact that Attorney Luening was
successful in obtaining an award of the military benefits does
not relieve him of his responsibilities under SCR 20:1.5(b)(1).
¶50 Attorney Luening's transfer of funds from L.S.'s bank
account after she told him, "I can lend you $25,000 if you need
it," is his most serious transgression. As the referee noted,
Attorney Luening was serving as L.S.'s agent under the power of
attorney and was acting as a fiduciary for her. As an attorney,
he should have recognized the need to clarify the terms of the
loan offer he believed she had made. It is significant,
however, that the referee, who was in the best position to
judge witness credibility, found Attorney Luening's testimony
about the loan to be credible, and he found parts of L.S.'s
testimony about the loan to be less than credible. We agree
with the referee that while both L.S. and Attorney Luening were
sloppy in how they approached the loan, as both an attorney and
as L.S.'s fiduciary, Attorney Luening bore the responsibility of
clarifying and documenting the terms of the loan before
transferring any funds from L.S.'s account to his own.
¶51 The referee is correct that we generally adhere to the
concept of progressive discipline. This is Attorney Luening's
third disciplinary proceeding. The referee is also correct that
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No. 2020AP2166-D
Attorney Luening's two previous public reprimands apparently did
not impress upon him the need to strictly adhere to the rules of
professional conduct. We concur with the referee's conclusion
that a 60-day suspension of Attorney Luening's law license is an
appropriate sanction.
¶52 We turn now to the issue of costs. The referee
recommends that Attorney Luening be responsible for 25% of the
costs. As the referee noted, upon a finding of misconduct, our
general policy is to impose all costs of the proceeding upon the
respondent. See SCR 22.24(1m). In appropriate cases, the court
may, in the exercise of its discretion, reduce the amount of
costs. In exercising its discretion regarding the assessment of
costs, the court considers the statement of costs, any objection
and reply, the recommendation of the referee, and (a) the number
of counts charged, contested, and proven; (b) the nature of the
misconduct; (c) the level of discipline sought by the parties
and recommended by the referee; (d) the respondent's cooperation
with the disciplinary process; (e) prior discipline, if any; and
(f) other relevant circumstances. Id.¶53 The pre-appellate costs of this proceeding, prior to
October 24, 2022 when this court asked the parties to advise
whether SCR 20:8.5(b)11 required that the counts of misconduct
11 SCR 20:8.5(b) provides: "Choice of law. In the exercise
of the disciplinary authority of this state, the Rules of
Professional Conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before
a tribunal, the rules of the jurisdiction in which the tribunal
sits, unless the rules of the tribunal provide otherwise; and
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No. 2020AP2166-D
arising out of Attorney Luening's representation of clients
before an immigration tribunal should have been pleaded under
EOIR rules, are $34,556.88. In addition, OLR's appellate
counsel fees are $4,207.00. Twelve counts of misconduct were
charged in OLR's complaint. Three were proven. In their post-
remand briefs, the parties agreed that a suspension not
exceeding 60 days would be appropriate, and the referee agreed
with their assessment. As noted, this is Attorney Luening's
third disciplinary proceeding.
(2) for any other conduct,
(i) if the lawyer is admitted to the bar of only this
state, the rules to be applied shall be the rules of this
state.
(ii) if the lawyer is admitted to the bars of this
state and another jurisdiction, the rules to be applied
shall be the rules of the admitting jurisdiction in which
the lawyer principally practices, except that if particular
conduct clearly has its predominant effect in another
jurisdiction in which the lawyer is admitted to the bar,
the rules of that jurisdiction shall be applied to that
conduct.
(iii) if the lawyer is admitted to the bar in another
jurisdiction and is providing legal services in this state
(Continued)
as allowed under these rules, the rules to be applied shall
be the rules of this state.
(c) A lawyer shall not be subject to discipline if the
lawyer's conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect of
the lawyer's conduct will occur."
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No. 2020AP2166-D
¶54 Recognizing that its charging decisions resulted in
substantial additional costs——as well as the dismissal of seven
out of the originally pleaded twelve counts of misconduct——OLR
urges the court to assess 50% of the pre-appellate costs against
Attorney Luening. In support of its recommendation, OLR points
to Attorney Luening's two previous public reprimands. It also
asserts, "most of the work that OLR performed would have taken
place regardless of the number of counts charged." OLR
recommends that the court assess 50% of the costs incurred prior
to October 24, 2022, or $17,278.44. For the period beginning
October 24, 2022, OLR recommends that the court assess no costs
since it concedes those amounts arose directly from the charging
decision that this court held was improper.
¶55 Upon consideration of the factors set forth in SCR
22.24(1m), along with the unique circumstances of this case, we
adopt the referee's recommendation to impose 25% of the pre-
October 24, 2022 costs, or $8,639.22. Of the twelve counts of
misconduct alleged in OLR's complaint, only three were proven.
One count was dismissed by OLR, and this court dismissed the
seven immigration-based counts due to OLR's failure to plead
them under the rules promulgated by EOIR. If OLR's complaint
had contained only the five counts unrelated to Attorney
Luening's practice before an immigration tribunal, this
proceeding would have been greatly simplified and the costs
would likely have been a fraction of their actual amount. While
the referee is correct that costs should not be assessed based
on "mathematical equality," we conclude that requiring Attorney
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No. 2020AP2166-D
Luening to pay 25% of the pre-October 24, 2022 costs would be
equitable based on the unique circumstances presented here.
¶56 We note that while it may appear that by dismissing
the seven counts of misconduct arising out of the representation
of clients before an immigration tribunal and reducing the costs
of the proceeding by 75%, Attorney Luening is getting off
lightly, that is not the case. As we noted in Luening I, OLR's
failure to plead the seven immigration-based counts of
misconduct under EOIR rules, while simultaneously pleading
immigration-based counts against another attorney under EOIR
rules, threatened to undermine confidence in Wisconsin's
attorney regulatory system given OLR's disparate treatment of
two similarly situated attorneys. Luening I, 2023 WI 12, ¶20.
We concluded that the appropriate remedy for OLR's decision not
to prosecute Attorney Luening's immigration-based misconduct
counts under EOIR rules was dismissal of those counts. Id.,
¶22.
¶57 The suspension of an attorney's license to practice
law, even for a brief period of time, is a significant sanction.
The attorney is deprived of his livelihood during the period of
suspension. He is required to notify all clients and courts
before which he practices of the suspension. The court's order
of suspension is published and may have an adverse impact on the
attorney's ability to attract future clients. In short, a 60-
day suspension is not a de minimus sanction, and we find it is
the appropriate sanction under the unique facts of this case.
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No. 2020AP2166-D
¶58 As to the 75% reduction in costs, since the vast
majority of the costs incurred in this matter arose out of OLR's
prosecution of, and Attorney Luening's vigorous defense against,
the seven immigration-based counts of misconduct that this court
dismissed, Attorney Luening should be relieved of having to pay
the costs associated with OLR's significant error in pleading.
¶59 In closing, we note again that this is Attorney
Luening's third disciplinary proceeding. We remind him that the
court may impose progressively severe sanctions when an attorney
engages in a pattern of misconduct. We impose the sanction
recommended by the referee in this matter with the expectation
that Attorney Luening will not commit future misconduct that
would subject him to additional, potentially harsher,
discipline.
¶60 IT IS ORDERED that the license of Matthew T. Luening
to practice law in Wisconsin is suspended for a period of 60
days, effective January 26, 2024.
¶61 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Matthew T. Luening shall pay to the Office of
Lawyer Regulation costs in the amount of $8,639.22.
¶62 IT IS FURTHER ORDERED that Matthew T. Luening shall
comply with the requirements of SCR 22.26 pertaining to the
duties of a person whose license to practice law in Wisconsin
has been suspended.
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