Office of Lawyer Regulation v. Patrick M. Cooper

2013 WI 55SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2334-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Patrick M. Cooper, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Patrick M. Cooper,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST COOPER
OPINION FILED: June 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 55NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2334-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Patrick M. Cooper, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUN 26, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Patrick M. Cooper,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of the referee,
Attorney Christine Harris Taylor, recommending that Attorney
Patrick M. Cooper's license to practice law in Wisconsin be
suspended for a period of two years, retroactive to the
expiration of his prior disciplinary suspension. The referee's
recommendation was based on the stipulation and no contest plea
entered by Attorney Cooper. The referee has further recommended
No. 2012AP2334-D
that Attorney Cooper be required to pay the costs of this
disciplinary proceeding, which were $913.94 as of April 9, 2013.
No appeal has been filed in this matter. Accordingly, our
review proceeds pursuant to SCR 22.17(2).1
¶2 The Office of Lawyer Regulation (OLR) filed the
present complaint against Attorney Cooper in October 2012. The
complaint set forth 42 counts of misconduct arising out of nine
separate client representations.2 The complaint asked for an
additional two-year suspension of Attorney Cooper's license.
Attorney Cooper filed an answer in which he denied all of the
material factual allegations against him and asserted that the
delay in bringing the current charges of misconduct violated his
due process rights.
¶3 After the appointment of a referee, Attorney Cooper
entered into a stipulation with the OLR. Pursuant to the
stipulation, Attorney Cooper withdrew his answer, agreed that
the referee could use the allegations of the complaint as a
factual basis for a determination of misconduct, and pled no
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
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
2
The OLR and the referee refer to the complaint as
containing 41 counts. Because of a numbering error, it actually
contains 42 counts, which is the number that we will use in this
decision.
2
No. 2012AP2334-D
contest to each of the counts set forth in the OLR's complaint.
The stipulation requested the referee to recommend that the
court (1) impose a two-year suspension as sought by the OLR and
(2) make that suspension retroactive to the date on which
Attorney Cooper's prior suspension expired. In the stipulation,
Attorney Cooper represents that he fully understands the
allegations of misconduct against him and his right to contest
those charges of misconduct, that he understands the
ramifications of entering into the stipulation, that he
understands his right to consult with counsel and has decided to
proceed on a pro se basis, and that he is entering into the
stipulation knowingly and voluntarily.
¶4 Pursuant to the stipulation, the referee made findings
of fact based on the allegations of the complaint. Those
findings are summarized in the following paragraphs.
¶5 Attorney Cooper was admitted to the practice of law in
September 1993. As discussed below, Attorney Cooper's license
to practice law is currently suspended. The most recent address
he has provided to the State Bar of Wisconsin is in Mequon,
Wisconsin.
¶6 Attorney Cooper's license to practice law in this
state was administratively suspended on October 31, 2005, for
failure to pay mandatory bar dues and assessments.3 On
December 14, 2005, this court also temporarily suspended
3
An additional administrative suspension for failure to
comply with mandatory reporting of continuing legal education
credits was imposed in June 2006.
3
No. 2012AP2334-D
Attorney Cooper's license due to his willful failure to
cooperate with OLR investigations into his conduct.
¶7 Those OLR investigations led to the first disciplinary
proceeding against Attorney Cooper. The OLR's amended complaint
in that matter alleged 33 counts of misconduct. In light of
Attorney Cooper's failure to participate in that disciplinary
proceeding, the referee declared him to be in default and found
that Attorney Cooper had committed each of the 33 counts of
misconduct. Attorney Cooper's misconduct included conversion of
client funds, multiple misrepresentations to clients, depositing
client trust funds into his personal account, failing to notify
others of his receipt of funds belonging to them, failing to
deliver a client file to successor counsel, failing to act with
diligence, failing to communicate with clients, and failing to
cooperate with the OLR's grievance investigations. Ultimately,
this court imposed a three-year suspension of Attorney Cooper's
license to practice law in this state. In re Disciplinary
Proceedings Against Cooper, 2007 WI 37, 300 Wis. 2d 61, 729
N.W.2d 206 (Cooper I) (suspension effective March 23, 2007).
¶8 At the time of the Cooper I disciplinary proceeding,
the OLR was investigating each of the nine
representations/grievances that form the basis for the current
complaint. Within a few days after the Cooper I decision was
released, the OLR sent a letter to Attorney Cooper advising him
that it was placing its nine pending investigations on hold
until such time as Attorney Cooper petitioned for the
reinstatement of his license and informing him that he should
4
No. 2012AP2334-D
contact the OLR at any time if he wished to resolve any of the
investigated matters.
¶9 In December 2010 Attorney Cooper filed a petition for
the reinstatement of his license. Ultimately, Attorney Cooper
entered a stipulation with the OLR for the dismissal of his
reinstatement petition. Based on the stipulation, this court
dismissed the reinstatement petition in September 2011.
¶10 As noted above, the OLR's current complaint addresses
nine client representations and alleges 42 separate counts of
professional misconduct. Describing each of those client
representations and the accompanying charges of misconduct is
unnecessary to demonstrate the nature and scope of Attorney
Cooper's misconduct. Each of those nine representations
followed a similar, but not identical pattern.
¶11 An illustrative example is sufficient to show the
types of misconduct committed by Attorney Cooper. In the summer
of 2004, Attorney Cooper was retained by K.W. to represent him
regarding a work-related injury. Over the next year, the
attorney representing the worker's compensation insurer, or his
paralegal, asked Attorney Cooper to provide authorizations
signed by K.W. that would allow them to obtain K.W.'s medical
records. Attorney Cooper failed to obtain K.W.'s signature or
to provide the authorizations to opposing counsel.
¶12 In April 2005 opposing counsel wrote a letter to the
Department of Workforce Development (DWD) explaining the actions
that still needed to be completed before K.W.'s worker's
compensation case would be ready for a hearing. Opposing
5
No. 2012AP2334-D
counsel stated that the case had not moved forward because of
Attorney Cooper's failure to respond to his repeated requests
for the medical records release authorizations. On June 17,
2005, the administrative law judge (ALJ) ordered Attorney Cooper
to provide the authorizations within 45 days or K.W.'s claim
would be dismissed. On July 27, 2005, just four days prior to
the 45-day deadline, Attorney Cooper sent the authorization
forms to K.W. He did not, however, advise K.W. of the deadline
that needed to be met in just a few days in order to avoid
dismissal of K.W.'s worker's compensation claim. When the
authorization forms were not provided, opposing counsel sought
dismissal of K.W.'s claim for failure to prosecute, which the
ALJ granted on August 15, 2005.
¶13 During the representation, K.W. had approximately five
or six discussions with Attorney Cooper regarding his case. On
the few occasions when K.W. was able to reach Attorney Cooper by
telephone, Attorney Cooper would cut off the conversation,
stating that he needed to get off the telephone but would call
K.W. back. Attorney Cooper, however, never made the promised
return calls. In addition, at one point during the
representation, Attorney Cooper told K.W. that he had received a
settlement offer from opposing counsel and would forward it to
K.W. This was a false statement, however, as there was no
evidence of any such settlement offer.
¶14 After K.W. learned that his case had been dismissed,
he called Attorney Cooper's office numerous times, but Attorney
Cooper failed to return any of K.W.'s calls. K.W. then
6
No. 2012AP2334-D
terminated Attorney Cooper's representation and requested in
writing that Attorney Cooper send his file to him. Attorney
Cooper failed to respond.
¶15 K.W. subsequently filed a grievance with the OLR
against Attorney Cooper. In February and April 2006, the OLR
sent letters to Attorney Cooper advising him of K.W.'s grievance
and asking him to submit a written response to the grievance.
See SCR 22.03(2). Attorney Cooper did not respond to the OLR's
requests. Indeed, he did not provide a response to K.W.'s
grievance until after he filed his December 2010 petition for
reinstatement. At that time Attorney Cooper informed the OLR
that he no longer had K.W.'s file and that a different law firm
might have the file. The OLR discovered no evidence, however,
that this other law firm had ever represented K.W. in his
worker's compensation case or that K.W. had consented for
Attorney Cooper to transfer his file to any other attorney or
law firm.
¶16 On the basis of these stipulated facts, the referee
concluded that Attorney Cooper had committed six counts of
professional misconduct related to his representation of K.W.
First, Attorney Cooper violated SCR 20:1.3 due to his lack of
diligence in obtaining the medical records release
authorizations from K.W., providing those authorizations to
opposing counsel, or otherwise preparing K.W.'s case to be ready
for a hearing before the ALJ. Attorney Cooper's failure to
communicate adequately with K.W. or to respond to K.W.'s
reasonable requests for information violated former
7
No. 2012AP2334-D
SCR 20:1.4(a). Attorney Cooper also violated former
SCR 20:1.16(d) by failing to provide K.W. with a copy of his
file when requested. The referee further concluded that
Attorney Cooper had made a misrepresentation to K.W., in
violation of SCR 20:8.4(c), when he had falsely stated that he
had received a settlement offer from opposing counsel. In
addition, by failing to notify K.W. of the October and December
2005 suspensions of his license to practice law, Attorney Cooper
violated SCRs 22.26(1)(a) and (b), which are enforced via
SCR 20:8.4(f). Finally, the referee found that Attorney Cooper
had failed to provide a timely response to K.W.'s grievance, as
requested in two letters from the OLR, in violation of
SCRs 22.03(2) and (6), which are also enforced via
SCR 20:8.4(f).
¶17 In total, based on the stipulation and the allegations
of the OLR's complaint, the referee concluded that Attorney
Cooper had committed the following violations:
• Four counts of violating SCR 20:1.34 (lack of
diligence);
• Seven counts of violating former SCR 20:1.4(a)5 (lack
of communication with client);
4
SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
5
Former SCR 20:1.4(a) (effective through June 30, 2007)
provided that "[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with
reasonable requests for information."
8
No. 2012AP2334-D
• One count of violating former SCR 20:1.2(a)6 and
SCR 20:1.4(b)7 (failing to explain matters to client
and to consult with client regarding means of pursuing
objectives of representation);
• Four counts of violating SCR 20:8.4(c)8 (engaging in
conduct involving dishonesty, fraud, deceit or
misrepresentation);
• Nine counts of violating former SCR 20:1.16(d)9
(failing to deliver files to clients or successor
counsel);
6
Former SCR 20:1.2(a) (effective through June 30, 2007)
provided, in relevant part, as follows:
A lawyer shall abide by a client's decisions
concerning the objectives of representation, . . . and
shall consult with the client as to the means by which
they are to be pursued. A lawyer shall inform a
client of all offers of settlement and abide by a
client's decision whether to accept an offer of
settlement of a matter . . . .
7
SCR 20:1.4(b) states, "A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
8
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . ."
9
Former SCR 20:1.16(d) (effective through June 30, 2007)
stated as follows:
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 that has not been earned.
9
No. 2012AP2334-D
• Six counts of violating SCRs 22.26(1)(a) and (b)10
(failing to notify clients, tribunals, or opposing
counsel of suspension of law license);
• One count of violating SCRs 22.26(2)11 and 10.03(6)12
(practicing law while license suspended);
The lawyer may retain papers relating to the client to
the extent permitted by other law.
10
SCRs 22.26(1)(a) and (b) state:
On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
11
SCR 22.26(2) provides as follows:
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.
12
SCR 10.03(6) states: Penalty for nonpayment of dues.
If the annual dues or assessments of any member
remain unpaid 120 days after the payment is due, the
membership of the member may be suspended in the
manner provided in the bylaws; and no person whose
membership is so suspended for nonpayment of dues or
10
No. 2012AP2334-D
• One count of violating SCR 20:3.4(c)13 (failing to
comply with order of ALJ); and
• Nine counts of violating SCRs 22.03(2) and (6)14
(failing to submit written response to grievance).
¶18 In its memorandum in support of the stipulation, the
OLR argued that a two-year suspension, retroactive to the end of
the prior, three-year suspension, would be an appropriate level
assessments may practice law during the period of the
suspension.
13
SCR 20:3.4(c) states a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."
14
SCRs 22.03(2) and (6) provide as follows:
(2) 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.
. . .
(6) 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.
11
No. 2012AP2334-D
of discipline. The OLR indicated that a two-year suspension was
supported by this court's decision in the case of In re
Disciplinary Proceedings Against Haberman, 126 Wis. 2d 411, 376
N.W.2d 852 (1985), where we suspended Attorney Haberman's
license for two years for misconduct that included neglect of
his duties in seven estates, engaging in a prohibited conflict
of interest, and failing to cooperate with the investigations of
his conduct with respect to two estates. It also concluded that
a two-year suspension was supported by the fact that Attorney
Cooper's misconduct was more extensive and/or serious than the
misconduct in two cases where we imposed one-year suspensions.
See In re Disciplinary Proceedings Against Woodard, 190 Wis. 2d
487, 526 N.W.2d 510 (1995) (one-year suspension imposed for
misconduct including failing to communicate with clients,
failing to return file to client, and failing to cooperate with
two grievance investigations); In re Disciplinary Proceedings
Against Kennedy, 119 Wis. 2d 261, 349 N.W.2d 483 (1984) (one-
year suspension imposed for misconduct consisting of neglecting
two client matters and failing to cooperate in the ensuing
investigations).
¶19 The OLR further noted that there were a number of
aggravating factors in the present case, including Attorney
Cooper's prior discipline, the presence of a pattern of
misconduct, the presence of multiple violations, the fact that a
number of violations involved intentional failure to comply with
his obligations to the disciplinary agency and to tribunals, his
substantial experience at the time of the violations, and his
12
No. 2012AP2334-D
refusal to acknowledge the wrongful nature of his conduct. On
the mitigating side, the OLR noted that the misconduct had
occurred during substantially the same time period as the
misconduct that formed the basis for the three-year suspension
imposed in 2007, and that Attorney Cooper had alleged that
stress and emotional problems had essentially caused him to
"check out" of his law practice during the relevant time period.
¶20 The OLR's memorandum also provided its rationale for
requesting that any suspension be imposed retroactively.
Because the misconduct here occurred during the same time as the
misconduct that resulted in the prior three-year suspension, the
OLR contended that it would be unfair to make a new suspension
prospective.
¶21 The referee considered the parties' joint request for
a two-year, retroactive suspension, as well as the purposes of
discipline in attorney disciplinary proceedings, the court's
general preference for progressive discipline, and the
aggravating and mitigating factors present in this case. The
referee agreed with the parties that a two-year suspension,
retroactive to the expiration of the prior suspension, would be
an appropriate level of discipline for Attorney Cooper's
misconduct. The referee further recommended that the court
impose the full costs of the disciplinary proceeding on Attorney
Cooper.
¶22 When reviewing a referee's report and recommendation
in an attorney disciplinary proceeding, we affirm a referee's
findings of fact unless they are found to be clearly erroneous,
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No. 2012AP2334-D
but we review the referee's conclusions of law on a de novo
basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI
126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the
appropriate level of discipline given the particular facts of
each case, independent of the referee's recommendation, but
benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶23 In light of Attorney Cooper's stipulation and no
contest plea, we adopt the referee's findings of fact, which are
based on the OLR's complaint. We also agree with the referee
that those findings of fact support a legal conclusion that
Attorney Cooper committed each of the 42 counts of professional
misconduct alleged in the OLR's complaint.
¶24 We now turn to the appropriate level of discipline.
The facts alleged in the complaint with respect to the nine
client representations demonstrate a clear pattern by Attorney
Cooper of neglect and of failure to pursue the objectives of his
clients. In addition, while he failed to move their claims
forward, Attorney Cooper also essentially shut down
communications with his clients, leaving them in the dark, even
when some of their claims were dismissed. Moreover, by failing
to provide the clients with their case files, Attorney Cooper
impaired their ability to correct or mitigate his misconduct by
retaining new counsel. This is a disturbing pattern of serious
misconduct that goes to the core of an attorney's obligations.
¶25 We recognize, however, that the misconduct alleged in
this case occurred nearly a decade ago, during the same period
14
No. 2012AP2334-D
as the misconduct that was at issue in the previous disciplinary
proceeding. If all of Attorney Cooper's misconduct from that
time period had been addressed in a single proceeding, the most
severe discipline that could have been imposed would have been a
revocation of Attorney Cooper's license to practice law in this
state, which would have allowed him to petition for the
reinstatement of his license after a period of five years.
Imposing an additional suspension of two years in this
proceeding, retroactive to the end of the prior three-year
suspension, would similarly result in a five-year period of
ineligibility to seek reinstatement. A retroactive suspension
would also comport with our prior cases, where we have said that
retroactive suspensions may be appropriate in situations, like
the one here, where the "misconduct occurred prior to the
[earlier] disciplinary proceeding and [the attorney's] license
has remained suspended well beyond the period of suspension
previously imposed." In re Disciplinary Proceedings Against and
Reinstatement of Mandelman, 182 Wis. 2d 583, 592, 514 N.W.2d 11(1994). Moreover, there is support in our prior decisions for a
two-year suspension given the nature and scope of Attorney
Cooper's misconduct, regardless of the fact that the misconduct
at issue here occurred at the same time as the misconduct
charged in the prior disciplinary proceeding. Accordingly, we
conclude that Attorney Cooper's license to practice law in
Wisconsin should be suspended for a period of two years,
15
No. 2012AP2334-D
retroactive to March 23, 2010, the date on which the prior
three-year suspension expired.15
¶26 Finally, we turn to the issue of costs. Our general
policy is to impose the full costs of a disciplinary proceeding
on the respondent attorney who is found to have committed
professional misconduct. See SCR 22.24(1m). We see no reason
to depart from that policy in this matter. Although Attorney
Cooper did ultimately enter into a stipulation and no contest
plea, he initially filed an answer that denied each of the
material allegations of misconduct in the OLR's complaint, which
required the appointment of a referee and the accompanying costs
of litigating this matter. It is therefore appropriate that he
pay those costs.
¶27 IT IS ORDERED that the license of Patrick M. Cooper to
practice law in Wisconsin is suspended for a period of two
years, effective March 23, 2010.
15
The referee's report recommends that the suspension be
made retroactive to March 25, 2010, as the date on which
Attorney Cooper was eligible to petition for reinstatement. The
three-year suspension, however, was effective on the date of the
court's order, March 23, 2007, which meant that it expired on
March 23, 2010. Cooper I, 300 Wis. 2d 61, ¶21. We make the new
suspension retroactive to that date. We do not make the new
suspension retroactive to the date on which Attorney Cooper
would have been eligible to file a petition for reinstatement.
Under SCR 22.29(1), an attorney whose license has been suspended
for a definite period of time of six months or more is eligible
to file a reinstatement petition three months prior to the
expiration of the period of suspension.
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No. 2012AP2334-D
¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Patrick M. Cooper shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶29 IT IS FURTHER ORDERED that Patrick M. Cooper shall
continue compliance with the provisions of SCR 22.26 concerning
the duties of a person whose license to practice law in
Wisconsin has been suspended.
¶30 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
17