Office of Lawyer Regulation v. William R. Lamb

2015 WI 52
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP486-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
William R. Lamb, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
William R. Lamb,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST LAMB
OPINION FILED: June 9, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 52
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP486-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against William R. Lamb, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUN 9, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
William R. Lamb,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney William R. Lamb has appealed
from the report of the referee, Attorney James R. Erickson,
which found, based on Attorney Lamb's stipulation and no contest
plea, that Attorney Lamb had engaged in 75 counts of
professional misconduct arising out of ten client
representations, that his license to practice law in Wisconsin
should be revoked, that he should be required to pay restitution
in the total amount of $21,580, and that he should be required
No. 2012AP486-D
to pay the full costs of this disciplinary proceeding, which
were $8,875.90 as of September 16, 2014.
¶2 Having considered the referee's report, the briefs of
the parties, and the record in this matter, we determine that
the referee's factual findings based on Attorney Lamb's
stipulation are not clearly erroneous. We reject Attorney
Lamb's request that he be relieved of the stipulation he entered
so that the matter can be remanded to the referee and Attorney
Lamb can now present evidence to "correct the record." We
further conclude that the referee's factual findings support his
conclusions of misconduct on the 75 counts alleged against
Attorney Lamb. Given Attorney Lamb's pervasive pattern of
misconduct, including forging his client's name in order to
convert the client's settlement funds, we determine that it is
necessary to revoke Attorney Lamb's license to practice law in
this state. We also agree with the referee's recommendation
that Attorney Lamb should be ordered to make restitution to the
clients he has harmed and to pay the full costs of this
disciplinary proceeding.
¶3 Attorney Lamb was admitted to the practice of law in
this state in April 1989. He maintained a solo legal practice
in Menomonie. His license has been suspended for administrative
reasons and for failure to cooperate with disciplinary
investigations since the fall of 2011.
¶4 This is the fourth time that Attorney Lamb has been
the subject of professional discipline. The first two instances
resulted in consensual private reprimands. In 1997 Attorney
2
No. 2012AP486-D
Lamb received a consensual private reprimand for failing to
provide requested information during a disciplinary
investigation. Private Reprimand No. 1997-10. In 2003 Attorney
Lamb received a second consensual private reprimand for
misconduct involving a failure to communicate the basis or rate
of his fee to a client, a failure to maintain trust account
records which would have shown whether he had placed an advanced
fee into a client trust account or had immediately cashed the
checks for his own use, and a failure to provide his client's
file to successor counsel in a timely manner. Private Reprimand
No. 2003-28.
¶5 The third prior disciplinary matter resulted in a
60-day suspension of Attorney Lamb's license. In re
Disciplinary Proceedings Against Lamb, 2011 WI 101, ¶2,
338 Wis. 2d 1, 806 N.W.2d 439 (Lamb I). In that proceeding,
Attorney Lamb stipulated that he had committed 21 counts of
professional misconduct arising out of four client
representations. Attorney Lamb's actions tended to follow a
general pattern. He often accepted advanced fees, which he
failed to hold in trust or for which he failed to provide the
notices required for the alternative advanced fee procedure
under Supreme Court Rule (SCR) 20:1.15(b)(4m). He then refused
to or failed to keep his clients reasonably informed about the
status of their legal matters, often ignoring multiple requests
for information from the clients. When the clients attempted to
obtain a refund of fees and a return of their files, Attorney
Lamb either failed to respond or failed to comply with their
3
No. 2012AP486-D
requests. When the Office of Lawyer Regulation (OLR) asked for
information regarding the clients' grievances, Attorney Lamb
failed to cooperate properly with the OLR's investigations.
¶6 The OLR initiated this proceeding by filing a
complaint and order to answer on March 7, 2012. The original
complaint alleged 23 counts of misconduct arising out of four
client representations. Attorney Lamb filed an answer, which
admitted some of the allegations of the complaint but contended
that the claims of misconduct were without merit and alleged
specific facts contradicting some of the complaint's
allegations.
¶7 On February 8, 2013, the OLR filed an amended
complaint alleging the 75 counts of misconduct referenced above.
Attorney Lamb filed an answer that again admitted some of the
factual allegations of the amended complaint, denied most of the
allegations, provided Attorney Lamb's view of the various client
representations, and denied that he had violated any rules of
professional conduct, other than perhaps failing to place
certain advanced fees into his client trust account. Attorney
Lamb's answer to the amended complaint also alleged that he had
additional personal information that he would seek to provide to
the referee or the OLR and for which a protective order would be
appropriate.
¶8 In November 2013, Attorney Lamb entered into a
stipulation with the OLR. In the stipulation, Attorney Lamb
withdrew his answer to the OLR's amended complaint and pled no
contest to each of the 75 counts of misconduct, "as set forth in
4
No. 2012AP486-D
the Amended Complaint." Specifically, Attorney Lamb agreed that
the referee "may use the allegations of the Amended Complaint as
an adequate factual basis in the record for a determination of
misconduct as to each misconduct count to which [Attorney] Lamb
has pled no contest." In the stipulation, Attorney Lamb
explicitly verified that he understood the misconduct
allegations and his right to contest those allegations, that he
understood his right to consult with counsel but had decided to
proceed on a pro se basis, and that his entry into the
stipulation was knowing and voluntary.
¶9 The stipulation also called for the matter of the
appropriate sanction to be the subject of briefs to be submitted
by the parties. The OLR filed a sanction brief, but Attorney
Lamb never did so.
¶10 Based on the stipulation Attorney Lamb entered, the
referee issued a report containing findings of fact based on the
allegations of the amended complaint. He determined that those
facts supported conclusions of law that Attorney Lamb had
engaged in the ethical violations alleged in the 75 counts set
forth in the amended complaint. The referee agreed with the
uncontested recommendation in the OLR's sanction brief that
Attorney Lamb's license to practice law in Wisconsin should be
revoked. He also recommended that Attorney Lamb should be
required to pay restitution to three individual clients, as well
as to the Wisconsin Lawyers' Fund for Client Protection (the
Fund), which had already made payments to five other clients.
5
No. 2012AP486-D
¶11 It is not necessary to recount the extensive factual
findings made by the referee regarding each of the ten client
representations at issue in this proceeding. A summary of one
representative example is sufficient to provide an accurate
picture of the types of misconduct found by the referee with
respect to most of the representations.
¶12 In November 2010 Attorney Lamb was retained by client
M.B. to represent him in attempting to set aside a sheriff's
sale of M.B.'s property following the entry of a judgment
against M.B. As part of the oral agreement for representation,
Attorney Lamb requested an advanced fee of $1,000 for the
representation. M.B. initially paid $500 in cash to Attorney
Lamb and then sent him a check for the remaining $500 three days
later. Attorney Lamb did not deposit the $1000 advanced fee
into his client trust account nor did he provide any of the
notices required by the alternative advanced fee procedure.
¶13 Several weeks later Attorney Lamb entered an
appearance in the foreclosure action. He did not, however, take
any further action on M.B.'s behalf. Over the next several
weeks, M.B. telephoned Attorney Lamb multiple times, seeking
information about the status of the matter. Attorney Lamb
failed to return M.B.'s calls. Ultimately, M.B. left multiple
messages with Attorney Lamb, repeatedly requesting a refund of
the $1000 advanced fee he had paid to Attorney Lamb.
¶14 Because Attorney Lamb did not provide any refund of
the advanced fee, M.B. filed a claim with the Fund. The Fund
6
No. 2012AP486-D
subsequently reimbursed M.B. for the $1000 advanced fee he had
paid to Attorney Lamb.
¶15 M.B. also filed a grievance with the OLR, which
forwarded the grievance to Attorney Lamb and asked for a
response to the substance of the grievance, an accounting of his
fee, and a copy of his file. When Attorney Lamb did not
respond, the OLR e-mailed a second letter and personally served
a third letter, each time asking for a response to its requests.
Attorney Lamb still did not respond.
¶16 On July 10, 2012, the OLR filed a motion seeking a
temporary suspension of Attorney Lamb's license. This court
issued an order directing Attorney Lamb to show cause why his
license should not be temporarily suspended due to his willful
failure to cooperate with the OLR's investigation. See
SCR 22.03(4). When Attorney Lamb did not respond to the order,
this court temporarily suspended Attorney Lamb's license on
September 17, 2012. That temporary suspension has remained in
effect until the issuance of this opinion and order.
¶17 Another matter addressed in the referee's report also
merits discussion. Attorney Lamb agreed to represent R.M., a
friend, who had been injured in a December 2004 automobile
accident. Attorney Lamb did not prepare a written
fee/representation agreement. In December 2007, Attorney Lamb
filed a personal injury lawsuit on R.M.'s behalf. By early 2008
Attorney Lamb informed R.M. that the defendants had made a
settlement offer. R.M. instructed Attorney Lamb to complete the
settlement.
7
No. 2012AP486-D
¶18 Over the ensuing years, R.M. asked Attorney Lamb on
multiple occasions about the status of the settlement. Attorney
Lamb's responses falsely indicated that the settlement was close
to being finalized, but he otherwise deferred answering
questions about it. In early 2012, after confronting Attorney
Lamb about the settlement, R.M. obtained a copy of the
settlement check from one of the defendants. The check showed
that it had been issued on March 20, 2008, made payable to
"[R.M.] A SINGLE INDIVIDUAL AND HIS ATTORNEY OF RECORD." On the
back of the check were endorsements for "[R.M.]" and "William R.
Lamb, for deposit only." R.M.'s endorsement signature on the
back of the check had been forged. R.M. never received any of
the settlement funds from Attorney Lamb.
¶19 Although the settlement proceeds belonged to R.M.,
Attorney Lamb had not deposited the proceeds into his client
trust account. He also never notified R.M. that he had received
the settlement proceeds or provided R.M. with an accounting of
those proceeds.
¶20 After learning of the conversion of the settlement
proceeds, R.M. filed a grievance with the OLR in February 2012.
The OLR again sent a notice of formal investigation to Attorney
Lamb, once more asking that he respond to the allegations in the
grievance, that he provide an accounting of his fee, and that he
submit a copy of his file for the matter. Although Attorney
Lamb sent an email indicating that he had received the OLR's
letter, he did not provide a response as requested. The OLR
sent two additional letters to Attorney Lamb via e-mail and by
8
No. 2012AP486-D
personal service, but Attorney Lamb did not respond. The OLR
included this matter in its July 10, 2012 motion for a temporary
suspension. Thus, this matter was also a basis for the court's
September 17, 2012 temporary suspension order.
¶21 In all, the referee concluded that Attorney Lamb had
committed 84 separate violations of 19 different subsections of
the Rules of Professional Conduct for Attorneys:1
• SCR 20:1.32—eight counts (lack of reasonable diligence)
• SCR 20:1.4(a)(2)3—one count (failure to consult with
client regarding the means by which the client's
objectives are to be accomplished)
1
Some of the 75 counts set forth in the complaint alleged
violations of multiple subsections of the ethical rules.
2
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
3
SCR 20:1.4(a) provides:
A lawyer shall:
(1) Promptly inform the client of any decision or
circumstance with respect to which the client's
informed consent, as defined in SCR 20:1.0(f), is
required by these rules;
(2) reasonably consult with the client about the
means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the
status of the matter;
(4) promptly comply with reasonable requests by
the client for information; and
(5) consult with the client about any relevant
limitation on the lawyer's conduct when the lawyer
(continued)
9
No. 2012AP486-D
• SCR 20:1.4(a)(3)—nine counts (failure to keep client
reasonably informed about status of matter)
• SCR 20:1.4(a)(4)—nine counts (failure to comply with
reasonable client requests for information)
• SCR 20:1.4(b)4—one count (failure to explain a matter
so client may make informed decisions)
• SCR 20:1.5(a)5—seven counts (collection of an
unreasonable fee)
knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.
4
SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
5
SCR 20:1.5(a) provides:
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;
(continued)
10
No. 2012AP486-D
• SCR 20:1.5(b)(1)6—five counts (failure to communicate
in writing to client the basis or rate of fees and
expenses)
• SCR 20:1.5(b)(2)—five counts (failure to communicate
in writing to client the purpose and effect of
advanced fee)
(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.
6
SCR 20:1.5(b) provides:
(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.
(3) A lawyer shall promptly respond to a client's
request for information concerning fees and expenses.
11
No. 2012AP486-D
• SCR 20:1.5(b)(3)—four counts (failure to respond to
client requests regarding fees and expenses)
• SCR 20:1.15(b)(1)7—one count (failure to hold client's
property in trust)
• SCR 20:1.15(b)(4)8—eight counts (failure to hold
advanced fees in trust until earned where alternative
procedure not used)
• SCR 20:1.15(d)(1)9—one count (failure to notify client
of receipt of funds in which client has interest)
7
SCR 20:1.15(b)(1) provides that
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of
clients and 3rd parties paid to a lawyer or law firm
in connection with a representation shall be deposited
in one or more identifiable trust accounts.
8
SCR 20:1.15(b)(4) provides:
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.
9
SCR 20:1.15(d)(1) provides:
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
(continued)
12
No. 2012AP486-D
• SCR 20:1.15(d)(2)10—one count (failure to provide
accounting of trust funds after final distribution or
upon client request)
• SCR 20:1.16(d)11—seven counts (failure to refund
unearned advanced fees upon termination of
representation)
• SCR 20:4.1(a)(1)12—one count (making false statement of
material fact or law to third party)
• SCR 20:8.4(b)13—one count (committing criminal acts)
the client or 3rd party any funds or other property
that the client or 3rd party is entitled to receive.
10
SCR 20:1.15(d)(2) provides that "[u]pon 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."
11
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
relating to the client to the extent permitted by
other law.
12
SCR 20:4.1(a)(1) provides that in the course of
representing a client, a lawyer shall not knowingly "make a
false statement of a material fact or law to a 3rd person."
13
SCR 20:8.4(b) provides that it is professional misconduct
for a lawyer to "commit a criminal act that reflects adversely
on the lawyer's honesty, trustworthiness or fitness as a lawyer
in other respects."
13
No. 2012AP486-D
• SCR 20:8.4(c)14—five counts (engaging in conduct
involving dishonesty, fraud, deceit, or
misrepresentation)
• SCR 22.03(2) and (6),15 enforced via SCR 20:8.4(h)16—
nine counts (failure to cooperate with disciplinary
investigation)
14
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
15
SCR 22.03(2) and (6) provide:
(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.
16
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)."
14
No. 2012AP486-D
• SCR 22.26(1)(a), (b), and (c),17 enforced via
SCR 20:8.4(f)18—one count (failure to notify client,
opposing counsel, and court of license suspension)
¶22 In attorney disciplinary proceedings, we affirm the
referee's findings of fact unless they are found to be clearly
erroneous, 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
17
SCR 22.26(1) provides, in relevant part:
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.
(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency 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. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
18
SCR 20:8.4(f) provides that 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."
15
No. 2012AP486-D
the appropriate level of discipline to impose 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 The primary thrust of Attorney Lamb's appeal is that
the factual record on which the referee relied is erroneous and
incomplete, despite the fact that Attorney Lamb stipulated that
the referee could rely on those facts. Attorney Lamb contends
that he was informed that once the formal complaint was filed,
the only options he had were to admit or deny entire allegations
as set forth in the complaint. He asserts that during the time
period of the OLR's investigation and of the determination by
the Preliminary Review Committee (PRC) as to whether there was
cause to proceed with specific charges in a formal complaint, he
was impaired by alcoholism, which prevented him from submitting
evidence to the OLR and which, in turn, prevented the PRC from
considering the full panoply of facts when it made its cause-to-
proceed determinations on specific misconduct charges.
¶24 Attorney Lamb acknowledges that he entered into a
stipulation. He claims, however, that since he had been unable
to participate fully in the investigation process, he felt that
once the complaint had been filed, he had no choice but to enter
into a stipulation.
¶25 Attorney Lamb further argues that, regardless of his
responsibility for cooperating with the OLR's investigation and
ensuring that both the OLR and the referee had a proper
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No. 2012AP486-D
understanding of all relevant facts, the OLR has a duty to
ensure that there is an accurate record in a disciplinary
proceeding.
¶26 Attorney Lamb also states that he is not challenging
the factual findings with respect to all ten of the client
representations at issue. To the contrary, he is challenging
the facts as to only six of the representations, and with
respect to one of those representations, he is seeking to modify
the factual findings solely on the issue of whether he earned
the advanced fees paid by the client. He offers one example.
He contends that he "put a great deal of effort" into
representing D.L., including negotiating a settlement with the
district attorney's office. Attorney Lamb, however, provides
only his unsupported and broad allegation to this effect. He
offers no specifics and does not provide any evidence that he
believes should be added to the record to support such a claim.
He does not offer even general allegations as to what is
inaccurate with respect to the other five client
representations.
¶27 The relief sought by Attorney Lamb to remedy the
alleged inaccuracies in the record is a remand to the referee
for further development of the factual record. In essence,
Attorney Lamb is asking that he be relieved of the stipulation
he entered and that he be placed in the position he occupied
prior to that stipulation, where he could litigate all of the
alleged factual inaccuracies in the OLR's amended complaint.
17
No. 2012AP486-D
¶28 We reject Attorney Lamb's arguments and requested
relief. He fails to convince us that there is any legal basis
for voiding the stipulation he entered and restarting the
litigation of this matter.
¶29 Although Attorney Lamb asserts that he was impaired by
his alcoholism during the time that the OLR was conducting its
investigation and presenting the results of that investigation
to the PRC, he does not claim that his subsequent entry into the
stipulation was unknowing or involuntary due to his alcoholism.
The time period for the initial investigatory stage of this
matter ended, at the very latest, in February 2013 when the OLR
filed its amended complaint, adding a number of client
representations and alleged ethical violations. Attorney Lamb,
however, did not enter into the stipulation until November 2013.
He never expressly contends that he was impaired at that time,
which is the relevant time period for determining whether he
should be granted relief from the stipulation he entered. In a
motion Attorney Lamb filed with this court in May 2014, he
asserted that he had sought treatment for his alcoholism in
2012. Indeed, in an April 2014 email message to the referee,
which the referee treated as an objection to the imposition of
costs, Attorney Lamb specifically stated that he had been
impaired by his alcoholism "until sometime later on in 2012."
Thus, according to Attorney Lamb's own admission, his impairment
was no longer an impediment to responding to the charges in this
matter after the latter part of 2012, a year before he entered
into the stipulation. There is simply no basis in the record to
18
No. 2012AP486-D
conclude that Attorney Lamb's earlier problems with alcohol
dependency rendered his November 2013 decision to enter into the
stipulation unknowing or involuntary.
¶30 In addition, although Attorney Lamb claims there are
factual inaccuracies in the record, he does not identify the
alleged inaccuracies with specificity or provide evidence to
demonstrate the inaccuracy. He simply asks this court to take
him at his word that if the court were to remand the matter back
to the referee, he would now produce evidence that would refute
some of the allegations in the amended complaint.
¶31 Attorney Lamb, however, already had ample opportunity
to present such evidence to the OLR and to the referee. Even if
the OLR would not have changed the charges in its amended
complaint, that does not mean that it was futile to submit the
evidence. The proceedings before the referee are designed to
find the facts as to what occurred. Attorney Lamb clearly
recognized that fact because his answer to the amended complaint
did deny a substantial number of the OLR's allegations and did
contain some of the same contentions regarding the work he
performed for his clients. He intentionally forfeited his right
to contest the OLR's factual allegations, however, when he
signed a stipulation that the referee could use the factual
allegations of the amended complaint as the referee's factual
findings that formed the basis for determining that he had
committed the ethical violations alleged in the 75 counts of the
amended complaint.
19
No. 2012AP486-D
¶32 Moreover, even if Attorney Lamb's concern about the
alleged inaccuracies in the record relates solely to the level
of discipline and to the imposition of restitution, he was given
the opportunity to bring the alleged inaccuracies to the
referee's attention in connection with his sanction brief. He
could have submitted the additional evidence he now claims to
have to the referee as part of an argument that his misconduct
is not as serious as it appears, but he never filed any sanction
brief.
¶33 In the end, Attorney Lamb has not presented a valid
basis for essentially vacating the referee's report and voiding
the stipulation he entered. Thus, we find no basis to overturn
any of the referee's factual findings as clearly erroneous. We
further determine that the referee's factual findings adequately
support the legal conclusion that Attorney Lamb engaged in the
ethical violations contained in the 75 counts of the amended
complaint.
¶34 Having established the number of violations, we now
consider the appropriate level of discipline. Other than
asserting that he has additional evidence that would show some
work was done for certain clients, Attorney Lamb's brief does
not contain an argument regarding the appropriate level of
discipline. He cites no prior cases as support for the
imposition of any particular level of discipline. Indeed, he
specifically states in his brief that he is "not arguing or
suggesting that the ultimate outcome will be different,"
20
No. 2012AP486-D
although he notes there is a possibility it could be different
if a remand to the referee were ordered.
¶35 After considering the totality of the factors present
in this proceeding, we conclude that the revocation of Attorney
Lamb's license to practice law in this state is appropriate and
necessary. Attorney Lamb forged his client's signature so he
could convert over $10,000 in settlement funds to his own use
and then hid that fact from his client and friend for nearly
four years. That is an exceedingly serious breach of an
attorney's core responsibility to a client. There is also a
clear pattern of misconduct by Attorney Lamb, both within the
client representations at issue in this proceeding and between
this proceeding and Lamb I. For example, Attorney Lamb
repeatedly accepted advanced fees from clients, did little or no
work on those clients' matters, and repeatedly ignored requests
by the clients for information about their legal matters, often
resulting in significant harm to the clients. When the clients
filed grievances against Attorney Lamb, he repeatedly failed to
respond to the OLR's attempts to gather information from him.
Throughout the great majority of the proceedings before the
referee and on appeal before this court, Attorney Lamb failed to
express real remorse for what he did. Only at the eleventh
hour, when he thought this court was about to decide his case,
did Attorney Lamb file a letter to the court offering his
"sincere apology" for the hurt he had left in his wake.
Although that expression of remorse is a positive step, even
then Attorney Lamb still couched his apology in the context of
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No. 2012AP486-D
his alcoholism, although he presented no evidence before the
referee that alcoholism had caused all or even some of his
misconduct, including his forgery of a client's signature and
theft of over $10,000. In the end, the balance of facts
requires revocation.
¶36 A revocation of Attorney Lamb's law license is
consistent with other disciplinary cases in which we have
revoked an attorney's license. See, e.g., In re Disciplinary
Proceedings Against Kelly, 2012 WI 55, 341 Wis. 2d 104,
814 N.W.2d 844 (revocation imposed where attorney found to have
committed 51 counts of misconduct, including failure to exercise
diligence, failure to communicate with clients, failure to
refund advanced fees when work not completed, and failure to
respond to OLR requests for information); In re Disciplinary
Proceedings Against Fadner, 2007 WI 18, 229 Wis. 2d 54,
727 N.W.2d 20 (revocation imposed where attorney with one prior
private reprimand and a previous nine-month suspension engaged
in 45 counts of misconduct arising out of ten representations).
¶37 We now turn to the issue of restitution. We agree
with the referee that Attorney Lamb should be required to pay
restitution to the Fund in the amount of $17,500, which the Fund
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No. 2012AP486-D
paid to clients T.L., B.B., M.B., R.M., and W.B.19 In addition,
we agree that he should also pay restitution directly to clients
D.L. ($2,730), E.R. ($850), and B.O. ($500).
¶38 Finally, we consider Attorney Lamb's appeal from the
referee's recommendation that he pay the full costs of this
disciplinary proceeding. Attorney Lamb makes essentially two
arguments as to why he should not have to pay the full costs of
the proceeding.
¶39 First, Attorney Lamb alleges that the costs could have
been reduced if there had been some sort of settlement
discussion or a mediation session between himself and the OLR.
He contends that this would have allowed him to present the
evidence he had not been able to present during the
investigation phase due to his alcoholism. He also asserts that
such settlement discussions would have resulted, based in part
on his alleged new evidence, in a negotiated settlement, which
would have eliminated some of the costs incurred in litigating
this matter. He contends that he held the impression that, once
a formal complaint had been filed, the OLR could not or would
19
In his letter to the court filed on December 17, 2014,
Attorney Lamb claimed that he had reimbursed the Fund for its
payment to R.M. The OLR has not responded to this assertion.
Without a finding of fact or a stipulation on this matter, we
will still utilize the $17,500 total for restitution to the Fund
set forth in the referee's report. Of course, if Attorney Lamb
has already reimbursed the Fund for the payment it made to R.M.
or any other payments, he should be credited accordingly.
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No. 2012AP486-D
not consider any of his additional evidence outside of the
context of an evidentiary hearing or a formal mediation session.
¶40 To the extent that Attorney Lamb is suggesting that
the OLR should have engaged in plea bargaining with him to
reduce the amount of litigation expenses, this court's position
has been not to allow plea bargaining in attorney disciplinary
cases. See, e.g., Inglimo, 305 Wis. 2d 71, ¶85. The OLR would
have been operating with that understanding.
¶41 The lack of plea bargaining, however, does not mean
that Attorney Lamb was powerless to present his evidence to the
OLR, even during the pendency of a formal disciplinary
proceeding. Indeed, there was a period of discovery in this
matter. If Attorney Lamb had evidence in his possession that
would have demonstrated that he did not commit certain alleged
ethical violations, he could have produced that evidence during
discovery (or really at any time). In his supplemental report
regarding costs, the referee specifically stated that, while the
OLR had not over-litigated the case or engaged in excessive
discovery, Attorney Lamb had "neglected to cooperate in
providing required discovery" to the OLR.
¶42 In addition, while the OLR is not authorized to engage
in plea bargaining, it always has the ability to ask for the
dismissal of certain counts if it determines that the evidence
on those counts does not meet the clear, satisfactory, and
convincing standard. See SCR 22.16(5). Indeed, our opinions
document that the OLR has moved for dismissal of some pending
counts on prior occasions while the case was still before the
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No. 2012AP486-D
referee. See, e.g., In re Disciplinary Proceedings Against
Mandelman, 2014 WI 100, ¶4, 358 Wis. 2d 179, 851 N.W.2d 401 (OLR
dismissed 23 counts due to evidentiary problems during pre-
hearing phase of disciplinary proceeding); In re Disciplinary
Proceedings Against Ruppelt, 2014 WI 53, ¶1, 354 Wis. 2d 738,
850 N.W.2d 1 (OLR voluntarily dismissed a count pursuant to
stipulation); In re Disciplinary Proceedings Against Mulligan,
2009 WI 12, ¶9, 315 Wis. 2d 605, 759 N.W.2d 766 (after filing
complaint OLR moved to dismiss one count and to modify a second
count). Consequently, we do not reduce the costs due to
Attorney Lamb's claim that he could not present his alleged new
evidence to the OLR, which allegedly extended the length of the
disciplinary proceeding. The proceeding was lengthened, if at
all, by Attorney Lamb's own choice or his failure to act.
¶43 Attorney Lamb's second argument against the imposition
of full costs is that he lacks the current financial ability to
pay them. He has provided no evidence, however, to support this
assertion. Thus, we do not have a basis in this record to
reduce the amount of the cost obligation. Further, "[t]he
court's general policy in such situations is to direct the
attorney to provide financial information to the OLR and to try
to negotiate a payment plan for the payment of costs over time."
In re Disciplinary Proceedings Against Balistrieri, 2014 WI 104,
¶67, 358 Wis. 2d 262, 852 N.W.2d 1; see also, In re Disciplinary
Proceedings Against Harman, 2005 WI 89, ¶¶7-12, 282 Wis. 2d 199,
698 N.W.2d 697 (court ordered attorney who claimed a lack of
finances to negotiate a reasonable payment schedule with the OLR
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No. 2012AP486-D
and then imposed such a schedule). We conclude that we should
again follow that policy in this situation.
¶44 IT IS ORDERED that the license of William R. Lamb to
practice law in Wisconsin is revoked, effective the date of this
order.
¶45 IT IS FURTHER ORDERED that within 60 days of the date
of this order, to the extent he has not already done so,
William R. Lamb shall pay restitution to the Wisconsin Lawyers'
Fund for Client Protection in the amount of $17,500.00, to
client D.L. in the amount of $2,730.00, to client E.R. in the
amount of $850.00, and to client B.O. in the amount of $500.00.
¶46 IT IS FURTHER ORDERED that within 60 days of the date
of this order, William R. Lamb shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶47 IT IS FURTHER ORDERED that payment of restitution to
the individual clients and to the Wisconsin Lawyers' Fund for
Client Protection is to be completed prior to paying costs to
the Office of Lawyer Regulation.
¶48 IT IS FURTHER ORDERED that William R. Lamb shall
comply, if he has not already done so, with the requirements of
SCR 22.26 pertaining to the duties of a person whose license to
practice law in Wisconsin has been revoked.
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No. 2012AP486-D
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