Office of Lawyer Regulation v. Brandon Buchanan

2018 WI 41SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1899-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Brandon Buchanan, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Brandon Buchanan,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BUCHANAN
OPINION FILED: April 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 41NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1899-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Brandon Buchanan, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
APR 19, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Brandon Buchanan,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee Allan E. Beatty's
recommendation that the court declare Attorney Brandon Buchanan
in default and suspend his Wisconsin law license for a period of
60 days for professional misconduct in connection with his work
on one client matter and his non-cooperation with the Office of
Lawyer Regulation's (OLR) investigation into that misconduct.
The referee also recommended that Attorney Buchanan be required
to make restitution to a former client in the amount of $335,
No. 2017AP1899-D
and to pay the full costs of this proceeding, which total
$410.44 as of February 12, 2018.
¶2 Because no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Buchanan's failure to
answer the complaint filed by the OLR, the OLR is entitled to a
default judgment. We also agree with the referee that Attorney
Buchanan's professional misconduct warrants a 60–day suspension
of his Wisconsin law license. Finally, we agree with the
referee that Attorney Buchanan should be ordered to pay the full
costs of the proceeding, as well as $335 in restitution.
¶3 Attorney Buchanan was admitted to practice law in
Wisconsin in 2014. His law license is currently subject to
administrative and temporary suspensions. It is
administratively suspended due to his failure to pay mandatory
bar dues, failure to file a trust account certification, and
failure to comply with continuing legal education requirements.
It is temporarily suspended due to his failure to cooperate in
the OLR's investigation of this matter.
¶4 On September 28, 2017, the OLR filed the current
complaint against Attorney Buchanan. The complaint alleges five
counts of professional wrongdoing. The following facts are
taken from the OLR's complaint.
¶5 In 2014, S.L.L. filed for divorce from her husband.
In September 2015, Attorney Daniel R. Freund referred S.L.L. to
Attorney Buchanan to represent her and her husband, K.C.L., in a
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No. 2017AP1899-D
Chapter 7 bankruptcy action. In November 2015, the L.s hired
Attorney Buchanan and paid him a $1,835 advanced fee, which
included funds to pay the $335 bankruptcy filing fee.
Consistent with a request by S.L.L., Attorney Freund asked
Attorney Buchanan to keep him informed about the bankruptcy
proceedings in light of the ongoing divorce action.
¶6 Attorney Buchanan did not deposit the L.s' payment
into a trust account; indeed, he did not have a client trust
account. The retainer agreement between the L.s and Attorney
Buchanan stated that he would deposit the fee into his general
account.
¶7 Attorney Buchanan failed to keep in regular contact
with the L.s. He did not respond to the L.s' requests for
information for a number of months after his retention. In late
February 2016, Attorney Buchanan communicated with the L.s, but
his responsiveness was short-lived. In May 2016, he again
stopped responding to the L.s' requests for information, which
included e-mails and telephone calls.
¶8 Attorney Buchanan performed some legal work in the
matter, but never filed a Chapter 7 bankruptcy petition for the
L.s.
¶9 In June 2016, the L.s fired Attorney Buchanan and
instructed him to deliver their file to Attorney Freund.
Attorney Buchanan did not deliver the L.s' file to Attorney
Freund, or refund any unearned portion of their advanced fee, or
provide them with an accounting.
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No. 2017AP1899-D
¶10 Both Attorney Freund and S.L.L. filed grievances with
the OLR against Attorney Buchanan. The OLR wrote to Attorney
Buchanan informing him of the grievances and requesting a
response. Attorney Buchanan never responded. In January 2017,
the OLR personally served Attorney Buchanan at his home address
with correspondence from the OLR asking him to respond to
Attorney Freund's and S.L.L.'s grievances. Attorney Buchanan
did not respond.
¶11 In February 2017, based on an OLR motion, this court
ordered Attorney Buchanan to show cause why his license should
not be suspended for failure to cooperate with the OLR's
investigation. Attorney Buchanan did not respond. On April 10,
2017, this court temporarily suspended Attorney Buchanan's
license.
¶12 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Buchanan's representation of
the L.s.
Count One: By depositing the L.s' advanced fee into
his general account and not holding it in trust,
without providing any information regarding fee
arbitration, the Wisconsin Lawyers' Fund for Client
Protection, the L.s' ability to request a refund of
any unearned fees, or an accounting, Attorney Buchanan
violated former SCR 20:1.15(b)(4).1
1
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.
(continued)
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No. 2017AP1899-D
Count Two: By failing to keep the L.s reasonably
informed regarding the status of the Chapter 7
bankruptcy matter, and by failing to respond to the
L.s' requests for information, Attorney Buchanan
violated SCR 20:1.4(a)(3) and (4).2
Count Three: By failing to file a Chapter 7
bankruptcy petition on behalf of the L.s, Attorney
Buchanan violated SCR 20:1.3.3
Count Four: By failing to refund any portion of the
advanced fee and by failing to deliver the L.s' file
to Attorney Freund, Attorney Buchanan violated
SCR 20:1.16(d).4
Former SCR 20:1.15(b)(4) provided:
Except as provided in par. (4m) unearned fees and
advanced payments of fees shall be held in trust until
earned by the lawyer, and withdrawn pursuant to sub.
(g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
2
SCR 20:1.4(a) provides: "a lawyer shall:
. . .
(3) keep the client reasonably informed about the status of
the matter;
(4) promptly comply with reasonable requests by the client
for information."
3
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
4
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
(continued)
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No. 2017AP1899-D
Count Five: By willfully failing to provide the OLR
with a written response to the OLR's investigation,
Attorney Buchanan violated SCR 22.03(2)5 and
SCR 22.03(6), enforced via SCR 20:8.4(h).7
6
¶13 On November 9, 2017, the OLR filed a motion for
default judgment asking the referee to determine that the OLR
had properly served Attorney Buchanan with its complaint by
personal service, and that Attorney Buchanan had defaulted by
failing to timely file an answer to the complaint. The motion
relating to the client to the extent permitted by
other law.
5
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
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.
6
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."
7
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)."
6
No. 2017AP1899-D
sought an order for default judgment and the issuance of a
report making findings of fact and conclusions of law consistent
with the allegations in the complaint.
¶14 The referee issued an order advising the parties that
the OLR's default judgment motion would be considered at an
upcoming scheduling conference. Attorney Buchanan did not
participate in the scheduling conference.
¶15 The referee filed his report on January 24, 2018,
recommending that this court grant the OLR's motion for default
judgment. The referee deemed the allegations of the OLR's
complaint established. The referee recommended that this court
suspend Attorney Buchanan's Wisconsin law license for 60 days;
order him to pay the full costs of this proceeding; and order
him to pay $335 in restitution to the L.s.
¶16 Attorney Buchanan has not filed an appeal from the
referee's report and recommendation. Accordingly, our review
proceeds pursuant to SCR 22.17(2).
¶17 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.
¶18 We agree with the referee that Attorney Buchanan
should be declared in default. Although the OLR effected
personal service of its complaint, and although Attorney
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No. 2017AP1899-D
Buchanan was given notice of the hearing on the OLR's motion for
default judgment, he failed to appear or present a defense. He
has, therefore, defaulted. We also accept the referee's
findings of fact based on the allegations of the complaint, and
agree with the referee that those findings support a
determination of misconduct on the five counts alleged in the
OLR's complaint.
¶19 We further agree that a 60-day suspension of Attorney
Buchanan's license to practice law in Wisconsin is an
appropriate sanction for his misconduct. Although no two
disciplinary matters are precisely the same, a 60-day suspension
is generally consistent with the sanction imposed in somewhat
similar cases. See, e.g., In re Disciplinary Proceedings
Against Kingsley, 2006 WI 5, 287 Wis. 2d 91, 708 N.W.2d 321 (60-
day suspension for six counts of misconduct, including failing
to hold client's retainer in client trust account, failing to
file two lawsuits on client's behalf, and failing to respond to
multiple investigative letters from OLR); see also In re
Disciplinary Proceedings Against Collins, 2004 WI 9, 268
Wis. 2d 441, 674 N.W.2d 566 (60-day suspension for eight counts
of misconduct, consisting of two counts of neglect, two trust
account violations, two instances of failing to cooperate with
OLR investigations, one count of disobeying a court order, and
one count of failing to keep a client reasonably informed).
¶20 As is our usual practice, we deem it appropriate to
order Attorney Buchanan to pay the full costs of the proceeding.
See SCR 22.24(1m).
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No. 2017AP1899-D
¶21 As to the issue of restitution, the referee
recommended, consistent with the OLR's request in its complaint,
that this court order Attorney Buchanan to pay $335 in
restitution to the L.s. This amount represents the portion of
the funds that Attorney Buchanan received from the L.s——the $335
designated for filing fees——that he clearly neither earned nor
expended for its designated purpose. We agree with this
recommendation.
¶22 IT IS ORDERED that the license of Brandon Buchanan to
practice law in Wisconsin is suspended for a period of 60 days,
effective the date of this order.
¶23 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Brandon Buchanan shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$410.44.
¶24 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Brandon Buchanan shall make restitution in the
amount of $335 to S.L.L. and K.C.L.
¶25 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶26 IT IS FURTHER ORDERED that Brandon Buchanan 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.
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No. 2017AP1899-D
¶27 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.28(2).
¶28 IT IS FURTHER ORDERED that the April 10, 2017
temporary suspension of Brandon Buchanan's license to practice
law in Wisconsin, due to his willful failure to cooperate with
the OLR's grievance investigation in this matter, is lifted.
¶29 IT IS FURTHER ORDERED that the administrative
suspension of Brandon Buchanan's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues, failure
to file a trust account certification, and failure to comply
with continuing legal education requirements, will remain in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).
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No. 2017AP1899-D
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