Office of Lawyer Regulation v. David v. Moss

2014 WI 95
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2088-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
David V. Moss,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MOSS
OPINION FILED: July 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 95
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2088-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 30, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
David V. Moss,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On January 23, 2014, referee James C.
Boll, Jr. issued a report recommending that Attorney David V.
Moss be declared in default, concluding that Attorney Moss
engaged in numerous counts of professional misconduct, and
recommending that his license to practice law in Wisconsin be
suspended for nine months, that he be ordered to make
restitution to the Wisconsin Lawyers' Fund for Client Protection
No. 2013AP2088-D
(Fund), and that he pay the full costs of this proceeding, which
are $1,123.44 as of February 11, 2014.
¶2 We conclude that the referee's findings of fact are
supported by satisfactory and convincing evidence. Since
Attorney Moss failed to present a defense despite being given
the opportunity to do so, we declare him to be in default.
Based on our independent review of the record, we conclude that
a two-year suspension of Attorney Moss's license to practice law
in Wisconsin, rather than the nine months recommended by the
referee, is an appropriate sanction. We also agree that
Attorney Moss should be ordered to make restitution to the Fund
and that he should be assessed the full costs of the proceeding.
¶3 Attorney Moss was admitted to practice law in
Wisconsin in 2009 and practiced in Galesville. According to the
record, he now lives in the state of Oregon. Attorney Moss's
Wisconsin law license is currently suspended for failure to
cooperate with OLR grievance investigations, failure to pay
State Bar of Wisconsin (State Bar) dues, and non-compliance with
trust account certification requirements.
¶4 On September 19, 2013, the Office of Lawyer Regulation
(OLR) issued a complaint against Attorney Moss alleging 35
counts of misconduct with respect to his handling of eight
client matters.
¶5 The allegations in the 35-page OLR complaint will not
be extensively recited or repeated here. Counts One through
Five of the complaint arose out of Attorney Moss's
representation of S.H. and her then-husband J.H., who hired
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No. 2013AP2088-D
Attorney Moss to represent them in a joint Chapter 7 bankruptcy
proceeding. Attorney Moss charged them a $1,000 flat fee. The
bankruptcy petition was never filed. Despite never filing the
bankruptcy petition, Attorney Moss informed S.H. that he had
spent ten hours working on her case. On February 27, 2012,
Attorney Moss sent S.H. a letter saying he was closing his
office and moving to Oregon.
¶6 On April 28, 2012, Attorney Moss sent a letter to the
OLR saying he would not respond to any grievances. He enclosed
his State Bar membership card to serve as his resignation from
the State Bar. On May 25, 2012, the OLR wrote to Attorney Moss
informing him that voluntary resignation is governed by Supreme
Court Rule (SCR) 10.03(7) and that the OLR would continue to
notify him of any grievance filed against him.
¶7 In June of 2012, the OLR notified Attorney Moss of the
grievance S.H. had filed against him and requested a written
response. Attorney Moss failed to respond. On November 14,
2012, this court temporarily suspended Attorney Moss's law
license.
¶8 S.H. filed a claim against Attorney Moss with the
Fund, and the Fund approved the claim for $1,000.
¶9 Counts Six through Ten of the OLR's complaint arose
out of Attorney Moss's representation of G.H., who hired
Attorney Moss to represent him in a Chapter 7 bankruptcy
proceeding. Attorney Moss charged G.H. a $750 flat fee, but
never initiated bankruptcy proceedings. The Fund approved
G.H.'s claim for $750.
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No. 2013AP2088-D
¶10 Counts Eleven through Fifteen of the OLR's complaint
arose out of Attorney Moss's representation of S.J. and J.J.,
who hired Attorney Moss to represent them in a joint Chapter 7
bankruptcy proceeding. Attorney Moss charged them a $1,000 flat
fee. The bankruptcy petition was never filed. The Fund
approved a claim for S.J. and J.J. for $1,000.
¶11 Count Sixteen of the OLR's complaint arose out of
Attorney Moss's representation of S.K., who hired Attorney Moss
to represent him in a Chapter 7 bankruptcy proceeding. Attorney
Moss charged S.K. a $500 flat fee. Attorney Moss did file a
bankruptcy petition on behalf of S.K. S.K. subsequently hired
Attorney Moss to represent him in a post-divorce matter in which
a $5,600 money judgment had been entered against S.K. Attorney
Moss agreed to request sanctions through the bankruptcy court
for the issuance and enforcement of the money judgment and
agreed to file a Section 1983 lawsuit. Attorney Moss never
requested sanctions through the bankruptcy court and never filed
the promised lawsuit.
¶12 Counts Seventeen and Eighteen of the OLR's complaint
arose out of Attorney Moss's representation of S.L., who hired
Attorney Moss to represent him in a Chapter 7 bankruptcy
proceeding. Attorney Moss charged S.L. a $1,600 flat fee. In
September of 2010, S.L. purged a bench warrant, issued as a
result of an order for contempt in a Trempealeau County case, by
posting a $1,000 bond. Attorney Moss filed the bankruptcy
petition on behalf of S.L., and he also represented S.L. in two
adversary proceedings. As a result of an adversary proceeding
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No. 2013AP2088-D
filed by Attorney Moss in January of 2011, the $1,000 was
returned to Attorney Moss as a preference. Attorney Moss told
S.L. he would hold the $1,000 in trust until the bankruptcy was
resolved. S.L. tried to contact Attorney Moss regarding the
status of his bankruptcy and the $1,000 preference in early
February 2011, but Attorney Moss failed to return S.L.'s phone
calls.
¶13 In July of 2011, pursuant to SCRs 22.02(6)(b) and
22.10(4), Attorney Moss entered into a diversion agreement with
the OLR related to S.L.'s grievance. Attorney Moss breached the
conditions of the diversion agreement when he failed to provide
to the OLR verification of his attendance at six continuing
legal education/ethics credit hours of instruction by July 1,
2012. On August 8, 2012, the OLR director notified Attorney
Moss that he was terminating the diversion agreement and
referring the matter to investigation. The record indicates
that Attorney Moss returned the $1,000 to S.L.
¶14 Counts Nineteen through Twenty-Three of the OLR's
complaint arose out of Attorney Moss's representation of C.L.
and S.L., who hired Attorney Moss to represent them in a joint
Chapter 7 bankruptcy proceeding. Attorney Moss charged them a
$1,400 flat fee. The L.s informed Attorney Moss that S.L.'s
wages were being garnished as a result of a money judgment
entered against them in Trempealeau County. Attorney Moss
agreed to take his flat fee from the previously garnished wages
and returned the leftover funds to the L.s. Attorney Moss also
5
No. 2013AP2088-D
agreed to negotiate with the L.s' mortgage lender in an attempt
to lower their interest rate as part of the representation.
¶15 Attorney Moss filed a bankruptcy petition on behalf of
the L.s in March of 2011. In May of 2011, Attorney Moss filed a
reaffirmation agreement regarding the L.s' mortgage. Attorney
Moss also filed an adversary proceeding to collect S.L.'s
garnished wages. As a part of the proceeding, the entire
preference payment was returned to Attorney Moss. Attorney Moss
failed to account for and return any of the leftover funds to
the L.s. In September 2011, Attorney Moss filed a revocation of
the reaffirmation agreement. He failed to inform the L.s of the
status or results of his purported negotiations with their
mortgage lender. He also failed to inform the L.s that he was
terminating his representation and/or closing his law office and
moving to Oregon, and failed to return their client file.
¶16 Counts Twenty-Four through Twenty-Nine of the OLR's
complaint arose out of Attorney Moss's representation of K.Q.
and J.Q., who hired Attorney Moss to represent them in a joint
Chapter 7 bankruptcy proceeding. Attorney Moss charged them a
$1,500 flat fee. He did not have them sign a written fee
agreement.
¶17 In February 2012, after missing several scheduled
meetings with the Q.s, Attorney Moss met with them and told them
he was closing his law office and moving to Oregon. He agreed
to continue representing them after the move. The bankruptcy
petition was never filed. In April 2012, K.Q. terminated the
representation via email and asked Attorney Moss to return her
6
No. 2013AP2088-D
client file and unearned fees. The Fund approved a claim for
the Q.s for $1,200.
¶18 Counts Thirty through Thirty-Five of the OLR's
complaint arose out of Attorney Moss's representation of K.S.
and her then-husband G.G., who hired Attorney Moss to represent
them in a joint Chapter 7 bankruptcy proceeding. Attorney Moss
charged them a $1,500 flat fee. He did not have them sign a
written fee agreement. Despite agreeing to do so, Attorney Moss
failed to contact the couple's mortgage lender in an attempt to
negotiate a reaffirmation agreement. From September 2010
through August 2011, Attorney Moss failed to return most of the
couple's phone calls regarding the status of their bankruptcy.
The parties' mortgage lender filed a foreclosure action in
February 2011, and a default judgment was granted in April 2011.
¶19 The parties filed for a divorce in June 2011. In
August 2011, Attorney Moss filed the bankruptcy petition. In
October 2011, Attorney Moss had G.G. sign three reaffirmation
agreements, which were filed in December 2011. Attorney Moss
informed G.G. that K.S. would need to sign a reaffirmation
agreement for her motorcycle, but Attorney Moss failed to take
any further action regarding the motorcycle.
¶20 From October 2011 through March 2012, Attorney Moss
failed to return K.S.'s numerous phone calls. The parties'
divorce was finalized in December of 2011.
¶21 In February of 2012, G.G. and K.S. met with Attorney
Moss at his Galesville law office. During the meeting they saw
a handgun in Attorney Moss's lap and in his hand as he was
7
No. 2013AP2088-D
sitting behind his desk. Attorney Moss told them he was
carrying the handgun for protection from people who were
hounding him and from clients who stalked and harassed him.
¶22 Attorney Moss was personally served with the OLR's
complaint on September 20, 2013. He did not file an answer to
the complaint. On December 18, 2013, the referee sent a letter
to Attorney Moss setting a telephone scheduling conference for
January 15, 2014. Attorney Moss failed to respond to the letter
or appear at the scheduling conference.
¶23 On January 8, 2014, the OLR filed a motion for default
judgment. At the January 15, 2014 scheduling conference, of
which Attorney Moss had notice, the referee recommended that
Attorney Moss be declared in default.
¶24 Attorney Moss has not filed an appeal from the
referee's report and recommendation.
¶25 Although Attorney Moss was given the opportunity to
present a defense to the OLR's complaint, he failed to do so.
Accordingly, we deem it appropriate to declare him in default.
¶26 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.
¶27 There is no showing that the referee's findings of
fact are clearly erroneous. Accordingly, we adopt them. We
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No. 2013AP2088-D
also agree with the referee's conclusions of law that Attorney
Moss violated the following supreme court rules, some of them in
multiple instances: 20:1.3;1 20:1.4(a)(3) and (4);2 20:1.5(a);3
1
SCR 20:1.3 states: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
2
SCR 20:1.4(a)(3) and (4) provides that a lawyer shall
"keep the client reasonably informed about the status of the
matter" and shall "promptly comply with reasonable requests by
the client for information."
3
SCR 20:1.5(a) states:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
9
No. 2013AP2088-D
20:1.5(b)(1) and (2);4 20:1.15(d)(1) and (2);5 20:1.16(d);6
20:8.4(g);7 and 22.03(2)8 and 22.03(6)9, enforced via 20:8.4(h).10
4
SCR 20:1.5(b)(1) and (2) states:
(1) 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.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
5
SCR 20:1.15(d)(1) and (2) states:
(1) Notice and disbursement. Upon receiving
funds or other property in which a client has an
interest, or in which the lawyer has received notice
that a 3rd party has an interest identified by a lien,
court order, judgment, or contract, the lawyer shall
promptly notify the client or 3rd party in writing.
Except as stated in this rule or otherwise permitted
by law or by agreement with the client, the lawyer
shall promptly deliver to the client or 3rd party any
funds or other property that the client or 3rd party
is entitled to receive.
(2) Accounting. Upon final distribution of any
trust property or upon request by the client or a 3rd
party having an ownership interest in the property,
the lawyer shall promptly render a full written
accounting regarding the property.
6
SCR 20:1.16(d) states:
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No. 2013AP2088-D
¶28 After careful review of this matter, we conclude that
the nine-month suspension sought by the OLR and recommended by
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
relating to the client to the extent permitted by
other law.
7
SCR 20:8.4(g) provides that it is professional misconduct
for a lawyer to "violate the attorney's oath."
8
SCR 22.03(2) states:
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.
9
SCR 22.03(6) states: "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."
10
SCR 20:8.4(h) provides that 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)."
11
No. 2013AP2088-D
the referee is an insufficient sanction for Attorney Moss's
misconduct. Although Attorney Moss had a license to practice
law in Wisconsin for only slightly more than three years before
his license was suspended, during that short timeframe he
engaged in repeated misconduct where he took fees from clients,
failed to perform the work for which he was retained, failed to
communicate with the clients regarding the status of their
matters, and failed to return fees and client files upon
request. The incident in which Attorney Moss was brandishing a
handgun during a client meeting is disturbing. We believe that
a two-year suspension of his license to practice law in
Wisconsin is a sanction more commensurate with the misconduct at
issue in this case.
¶29 A two-year suspension is also consistent with the
level of discipline imposed in prior cases. For example, in In
re Disciplinary Proceedings Against Cooper, 2013 WI 55,
348 Wis. 2d 266, 833 N.W.2d 88, we imposed a two-year suspension
in a case involving 42 counts of misconduct arising out of nine
separate client matters. In In re Disciplinary Proceedings
Against Lucius, 2008 WI 12, 307 Wis. 2d 255, 744 N.W.2d 605, we
imposed a two-year suspension in a case where the attorney was
found to have committed ten counts of misconduct arising out of
six client matters. Attorney Moss was found to have committed
35 counts of misconduct in his handling of eight client matters.
A two-year suspension of his license to practice law in
Wisconsin is an appropriate sanction.
12
No. 2013AP2088-D
¶30 We agree with the referee that Attorney Moss should be
required to make restitution to the Fund and that he should be
required to pay the full costs of this proceeding.
¶31 IT IS ORDERED that the license of David V. Moss to
practice law in Wisconsin is suspended for a period of two
years, effective the date of this order.
¶32 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David V. Moss should make restitution to the
Wisconsin Lawyers' Fund for Client Protection as follows:
$1,000 attributable to S.H.; $750 attributable to G.H.; $1,000
attributable to S.J. and J.J.; and $1,200 attributable to K.Q.
and J.Q.
¶33 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David V. Moss shall pay to the Office of Lawyer
Regulation the costs of this proceeding, $1,123.44.
¶34 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶35 IT IS FURTHER ORDERED that David V. Moss shall comply
with the provisions of SCR 22.26 concerning the duties of an
attorney whose license to practice law has been suspended.
¶36 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
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No. 2013AP2088-D
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