Office of Lawyer Regulation v. Richard J. Podell

2013 WI 25SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP371-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Richard J. Podell, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Richard J. Podell,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST PODELL
OPINION FILED: March 22, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 25NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP371-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Richard J. Podell, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 22, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Richard J. Podell,
Respondent.
ATTORNEY disciplinary proceeding. Complaint dismissed.
¶1 PER CURIAM. Pending before the court is a report
filed by Referee Richard C. Ninneman recommending this court
dismiss a disciplinary complaint filed against Attorney
Richard J. Podell. No appeal has been filed, so we consider
this matter pursuant to SCR 22.17(2).1
1
SCR 22.17(2) states:
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
No. 2012AP371-D
¶2 We agree with the referee's conclusion that the facts
of this case do not support a conclusion that Attorney Podell's
conduct violated SCR 20:8.4(c). We therefore dismiss the
complaint. No costs will be imposed.
¶3 Attorney Podell was admitted to practice law in
Wisconsin in 1969. He practices family law in Milwaukee. He
has not previously been disciplined by the Office of Lawyer
Regulation (OLR).
¶4 On February 21, 2012, the OLR filed a complaint
against Attorney Podell alleging that he engaged in professional
misconduct involving dishonesty, fraud, deceit or
misrepresentation in violation of SCR 20:8.4(c) when he filed
three expense reimbursement requests with the American Bar
Association (ABA) in connection with its 2010 midyear meeting in
Orlando, Florida.
¶5 Attorney Podell was a longstanding active member of
the ABA, serving on numerous committees and holding numerous
office positions. He was a member of the House of Delegates,
was past-Chair of the Family Law Section, was Chair of the
Individual Rights and Responsibilities Section, and also served
as budget officer of the Senior Lawyers Division. Attorney
Podell frequently attended ABA section meetings and ABA House of
Delegates meetings and often submitted requests for financial
reimbursement to different ABA sections.
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
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No. 2012AP371-D
¶6 The OLR's complaint alleged that Attorney Podell
personally submitted three claims for expense reimbursement
following the 2010 ABA midyear meeting in Orlando, Florida, that
included separate requests for reimbursement of the same
expenses. In total, Attorney Podell sought reimbursement of
$2,371.50 from the ABA.
¶7 Attorney Podell then received a letter from the ABA
advising him he had sent "compound" (duplicate) reimbursement
requests. The ABA then conducted an audit of Attorney Podell's
ABA reimbursement requests for the years 2007, 2008, and 2009,
which revealed that Attorney Podell had submitted duplicate
requests for expense reimbursement to various ABA entities for
those years. The total overpayment by the ABA to Attorney
Podell for these years was $1,155.80.2
¶8 Attorney Podell admitted that he did not send the
reimbursement requests to the ABA in an appropriate manner. He
expressed embarrassment and regret, repaid the ABA the amounts
calculated as owed, claimed that he often failed to request
reimbursement for ABA-related expenses and, had he done so, the
ABA would have had to pay him considerable sums of money, and
2
Attorney Podell testified that during his 40 years of ABA
service he submitted 200 to 300 such vouchers and from time to
time, ABA staff would point out errors he had made, which he
would then correct and resubmit. Between 2008 and 2010 Attorney
Podell attended 56 ABA meetings outside the state of Wisconsin.
Of these 56 meetings, he only submitted reimbursement vouchers
for approximately 35 meetings.
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No. 2012AP371-D
that he would not submit any further requests for ABA
reimbursement. He immediately sought to rectify his mistake.
¶9 There was testimony at the evidentiary hearing about
the confusing nature of ABA reimbursement policies.
Reimbursement policies for meals and lodging were a per diem
rate, which differed based on the type of meeting attended.3 The
referee also heard testimony regarding Attorney Podell's
excellent reputation for trustworthiness and honesty.
¶10 The referee found that Attorney Podell submitted
requests for reimbursement of his $207.70 airfare to three
separate ABA entities, totaling $415.40 in duplicate requests.
He also submitted duplicate requests for reimbursement of the
cost of ground transportation in the amount of $168.40, for a
total of $583.80 in so-called compound billing. The referee
found that the OLR failed to establish any compound (duplicate)
billing for lodging/meals.4
3
For example, on the reimbursement form to the Individual
Rights and Responsibilities Section, lodging and meals were
limited to $100 per day. The reimbursement form to the Senior
Lawyers Division limited lodging expenses to $200 per day. The
reimbursement request to the House of Delegates states that
lodging and meals are not reimbursable, but further below
provides that certain committee members may be reimbursed at the
rate of $100 per day for hotel expenses. The reimbursement
policies are not designed to fully reimburse one for expenses
incurred in attending a meeting.
4
Attorney Podell incurred expenses for the Orlando midyear
meeting in the amount of $2,861.06 ($2,373.36 for lodging and
meals; $337.70 for airfare including the reservation change fee;
$125 for ground transportation; and $25 for miscellaneous
expenses). Attorney Podell was reimbursed $832.70, so he
incurred $2,028.36 in expenses for which he was not reimbursed
for this meeting alone.
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No. 2012AP371-D
¶11 When Attorney Podell reimbursed the ABA he was told
that the matter was closed. Nonetheless, in 2010 T. Maxfield
Bahner, a Tennessee attorney and former ABA officer, learned of
this matter from an ABA staff member. The ABA did not ask
Bahner to investigate the matter, but Bahner began pursuing the
matter of his own accord.
¶12 Bahner discussed the issue with numerous individuals
and set up phone conference calls with Attorney Podell during
which an ABA staff member silently listened and Bahner's
secretary also listened and took notes. Indeed, the referee
commented:
[W]atching Bahner testify and considering the number
of people within the ABA who now were aware of this
matter; considering Bahner's rush to judgment that
Podell was guilty of dishonesty from the very outset;
considering Bahner's obsession that Podell should
self-report this to OLR despite advice from others;
considering that phone conversations with his so-
called "friend" were silently being listened to by a
notekeeper or ABA staff; this referee is reminded of
the old adage that with friends like this, who needs
enemies.
There is no indication these factual findings are clearly
erroneous.
¶13 We consider whether Attorney Podell's conduct violated
SCR 20:8.4(c). Supreme court rule 20:8.4(c) provides it is
professional misconduct for a lawyer to "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation."
¶14 The referee considered the cases cited by the OLR
inapposite based on his credibility determination that Attorney
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No. 2012AP371-D
Podell's conduct was neither knowing nor intentional.5 See In re
Disciplinary Proceedings Against Jacobson, 2004 WI 152, ¶50, 277
Wis. 2d 120, 690 N.W.2d 264 (noting that intent can be inferred
from the circumstances, and it is proper for the referee to
assess an attorney's credibility with respect to intent). The
OLR thus failed to convince the referee "that an attorney's
unintentional error or careless mistake in submitting
reimbursement vouchers to the ABA, without more, will support a
finding that the attorney violated SCR 20:8.4(c)."
¶15 The referee deemed it significant that when the errors
were called to Attorney Podell's attention, he not only admitted
the mistake, but sought to correct the same and took full
responsibility for the error. The referee stated:
In observing Podell, this referee finds that Podell's
actions in this matter were not done knowingly,
recklessly, consciously or intentionally for the
purpose of getting a larger reimbursement from the ABA
than he was entitled to for the meeting. . . .
This referee finds that OLR has not proven by
clear, satisfactory and convincing evidence that
Podell engaged [in] professional misconduct involving
dishonesty, fraud, deceit or misrepresentation with
respect to his 2010 expense vouchers to the ABA in
connection with the Orlando midyear meeting.
5
The referee observed, in part, that Attorney Podell has
been actively involved in ABA activities for 40 years, had
political aspirations, and attended multiple meetings of the ABA
outside the state of Wisconsin at considerable financial expense
to Attorney Podell. Given this background, the referee found it
"inconceivable that he would intentionally throw all of this
away by trying to cheat the ABA out of $583.80."
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No. 2012AP371-D
¶16 Thus, the referee concluded the OLR failed to meet its
burden of proof that Attorney Podell violated SCR 20:8.4(c) and
recommended the court dismiss the complaint.
¶17 A referee's findings of fact will not be set aside
unless they are clearly erroneous. We review the referee's
conclusions of law de novo. In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675
N.W.2d 747. We conclude that the referee's findings of fact are
not clearly erroneous, and we also uphold the referee's
conclusion of law that Attorney Podell's conduct did not violate
SCR 20:8.4(c). Consequently, we dismiss the OLR's complaint.
No costs will be imposed.
¶18 IT IS ORDERED that the Office of Lawyer Regulation's
complaint is dismissed. No costs are imposed.
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No. 2012AP371-D
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