Office of Lawyer Regulation v. Amoun Vang Sayaovong

2015 WI 100
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP680-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Amoun Vang Sayaovong, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Amoun Vang Sayaovong,
Respondent.
DISCIPLINARY HEARINGS AGAINST SAYAOVONG
OPINION FILED: November 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 100
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP680-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Amoun Vang Sayaovong, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
NOV 18, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Amoun Vang Sayaovong,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On August 3, 2015, Referee James R.
Erickson issued a report recommending that Attorney Amoun Vang
Sayaovong be declared in default and that his license to
practice law in Wisconsin be suspended for a period of six
months.
¶2 We declare Attorney Sayaovong to be in default. We
further agree with the referee that Attorney Sayaovong's
professional misconduct warrants a six-month suspension of his
No. 2015AP680-D
license to practice law in Wisconsin. In addition, we follow
our usual practice and order Attorney Sayaovong to pay the full
costs of the proceeding, which are $852.43 as of August 20,
2015.
¶3 Attorney Sayaovong was admitted to practice law in
Wisconsin in 2007. The address he has on file with the State
Bar of Wisconsin is in Saint Paul, Minnesota. However, there is
no such address in Saint Paul. Attorney Sayaovong has also
listed a Milwaukee address in previous correspondence.
¶4 In 2014, Attorney Sayaovong was publicly reprimanded
for misconduct in two separate client matters consisting of
failing to advance a client's interests, failing to have a
written fee agreement setting forth the rate for his fee,
failing to hold an advanced fee in trust, failing on termination
of representation to timely provide an itemized statement as to
legal services rendered, and failing to cooperate with the
Office of Lawyer Regulation's (OLR) investigation. In re
Disciplinary Proceedings Against Sayaovong, 2014 WI 94,
357 Wis. 2d 312, 850 N.W.2d 940. On February 19, 2014, Attorney
Sayaovong's license to practice law in Wisconsin was temporarily
suspended for his willful failure to cooperate in the OLR
investigation concerning his conduct that underlies the present
proceeding. In addition, Attorney Sayaovong's Wisconsin law
license is administratively suspended for failure to pay
mandatory bar dues and failure to comply with continuing legal
education requirements.
2
No. 2015AP680-D
¶5 On April 6, 2015, the OLR filed a complaint against
Attorney Sayaovong alleging six counts of misconduct.
¶6 The OLR's complaint alleged four counts of misconduct
with respect to Attorney Sayaovong's representation of P.S. and
C.S., who Attorney Sayaovong represented in an accident case
against J.N. in 2009. In November 2010, a judgment of $6,500
was entered against J.N. The judgment included $500 in
statutory attorney's fees. In April 2011, Attorney Sayaovong
started garnishment proceedings in the case. In June 2011,
Attorney Sayaovong collected the $500 in statutory attorney's
fees from J.N. through garnishing his wages.
¶7 Beginning in early July 2011, J.N.'s employer sent
Attorney Sayaovong garnishment checks every two weeks. Attorney
Sayaovong did not notify his clients upon his receipt of the
garnished funds, but he issued checks to them periodically.
Attorney Sayaovong did not deposit a garnishment check issued
January 27, 2012, and did not send a corresponding check to his
clients. Although the clients later questioned Attorney
Sayaovong about the missing payment, he never forwarded funds
from that garnishment to them. In May 2012, the clients stopped
receiving regular payments from Attorney Sayaovong.
¶8 By mid-July 2012, J.N. was no longer employed, but he
agreed to make payments to Attorney Sayaovong. Attorney
Sayaovong did not communicate this information to his clients
until over a month after he made the agreement with J.N. In
September 2012, Attorney Sayaovong sent the clients a check for
3
No. 2015AP680-D
payments he had received from May through August 2012. The
clients received no further payments from Attorney Sayaovong.
¶9 In September 2012, Attorney Sayaovong told the clients
that he was negotiating with J.N. to have him pay the clients
directly. The clients never received any payments from J.N.
¶10 Attorney Sayaovong was frequently unresponsive to the
clients' emails and telephone calls. When Attorney Sayaovong
did respond to the clients, he wrote that he was still waiting
for J.N. to provide him with financial information. Although
the clients asked Attorney Sayaovong for an accounting of the
funds he had received for them concerning J.N., Attorney
Sayaovong never provided an accounting.
¶11 The clients filed a grievance with the OLR in May
2013. The OLR wrote to Attorney Sayaovong at several addresses
via regular and certified mail, requesting certain information
and a response to the grievance. The certified and regular mail
letters were returned. Attorney Sayaovong never responded. In
October 2013, the OLR made multiple attempts to have Attorney
Sayaovong personally served. All attempts were unsuccessful.
On November 5, 2013, the OLR emailed Attorney Sayaovong at his
last known email address, notifying him of the clients'
grievance and requesting a response. Attorney Sayaovong did not
respond.
¶12 In December 2013, based on an OLR motion, this court
ordered Attorney Sayaovong to show cause why his license should
not be suspended for failure to cooperate with the OLR's
investigation of the clients' grievance. Attorney Sayaovong did
4
No. 2015AP680-D
not respond, and on February 19, 2014, this court temporarily
suspended Attorney Sayaovong's license.
¶13 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Sayaovong's representation
of P.S. and C.S.:
[Count One] By failing to timely pursue
collection actions against [J.N.], Sayaovong violated
[Supreme Court Rule (SCR)] 20:1.3.1
[Count Two] In failing to consistently keep the
[clients] informed of collection efforts, and failing
to return numerous phone calls or respond to various
emails received from the [clients], Sayaovong violated
SCR 20:1.4(a)(3) and (4).2
[Count Three] By failing to consistently and
promptly notify the [clients] of his receipt of funds
received for their benefit, or provide them with an
itemized accounting as to amounts that were collected,
despite having received numerous requests from his
clients that he do so, Sayaovong violated
3
SCR 20:1.15(d)(1) and (d)(2).
1
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
2
SCR 20:1.4(a)(3) and (4) provide, respectively, 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 20:1.15(d)(1) and (2) provide:
(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
(continued)
5
No. 2015AP680-D
[Count Four] In failing to provide to OLR a
required written response to the [clients'] grievance,
Sayaovong violated SCR 22.03(2)4 and SCR 22.03(6),5
enforced via SCR 20:8.4(h).6
¶14 The OLR's complaint also alleged two additional counts
of misconduct arising out of Attorney Sayaovong's representation
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.
4
SCR 22.03(2) provides:
Upon commencing an investigation, the director
shall notify the respondent of the matter being
investigated unless in the opinion of the director the
investigation of the matter requires otherwise. The
respondent shall fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct
within 20 days after being served by ordinary mail 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.
5
SCR 22.03(6) provides that "[i]n 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."
6
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)."
6
No. 2015AP680-D
of D&D Auto Services LLC (D&D). On September 20, 2013, Attorney
Yeng Kong Lee filed a small claims complaint for his client,
C.L., against D&D. On October 31, 2013, Attorney Sayaovong's
Wisconsin law license was administratively suspended for failure
to pay mandatory bar dues. In December 2013, Attorney Sayaovong
contacted Attorney Lee on behalf of D&D. In January 2014,
Attorney Sayaovong sent Attorney Lee a draft stipulation to
settle the small claims lawsuit. After Attorney Lee received
the stipulation, he discovered that Attorney Sayaovong's
Wisconsin law license was suspended and he filed a grievance
with the OLR against Attorney Sayaovong.
¶15 The OLR wrote to Attorney Sayaovong at various
addresses via regular and certified mail, requesting a response
to Attorney Lee's grievance. The certified letters were
returned, except for one sent to a group office, for which an
unrelated person signed. Two of the regular mail letters were
also returned. Attorney Sayaovong did not respond.
¶16 The OLR's complaint set forth the following counts of
misconduct with respect to Attorney Sayaovong's dealings with
Attorney Lee:
[Count Five] By preparing and sending a proposed
stipulation to opposing counsel while his license to
practice law in Wisconsin was suspended due to failure
to pay mandatory bar dues, Sayaovong violated
7 8
SCR 10.03(6) and SCR 22.26(2), enforced via
SCR 20:8.4(f).9
7
SCR 10.03(6) provides:
(continued)
7
No. 2015AP680-D
[Count Six] By failing to provide a written
response to OLR in the matter of Attorney Lee's
grievance, Sayaovong failed to cooperate with OLR's
investigation, Sayaovong violated SCR 22.03(2) and
SCR 22.03(6), enforced via SCR 20:8.4(h).
¶17 On June 8, 2015, the OLR filed a motion for default
judgment asking the referee to determine that the OLR had
properly served Attorney Sayaovong by certified mail under
SCR 22.13(1). The motion further sought a determination that
Attorney Sayaovong was in default by failing to timely file an
answer to the complaint, and the motion sought an order for
default judgment and issuance of a report making findings of
fact and conclusions of law consistent with the allegations in
the complaint.
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
assessments may practice law during the period of the
suspension.
8
SCR 22.26(2) provides:
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.
9
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."
8
No. 2015AP680-D
¶18 The referee issued his decision on August 3, 2015,
recommending that this court grant the OLR's motion for default
judgment. The referee deemed the allegations of the OLR's
complaint established. The referee recommended that Attorney
Sayaovong's Wisconsin law license be suspended for six months.
Attorney Sayaovong has not filed an appeal from the referee's
report.
¶19 We agree with the referee that Attorney Sayaovong
should be declared in default. Although the OLR effected
service of its complaint pursuant to SCR 22.13(1) and although
Attorney Sayaovong was given notice of the hearing on the motion
for default judgment, he failed to appear or present a defense.
Accordingly, we deem it appropriate to declare him in default.
¶20 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.
¶21 We agree with the referee that the allegations in the
OLR's complaint have been established and that Attorney
Sayaovong engaged in the six counts of misconduct alleged in the
complaint. We further agree that a six-month suspension of his
license to practice law in Wisconsin is an appropriate sanction
for his misconduct. Although no two disciplinary matters are
precisely the same, a six-month suspension is generally
9
No. 2015AP680-D
consistent with the sanction imposed in somewhat similar cases.
See, e.g., In re Disciplinary Proceedings Against Woods,
2011 WI 46, 334 Wis. 2d 324, 800 N.W.2d 875; In re Disciplinary
Proceedings Against Mauch, 2010 WI 2, 322 Wis. 2d 79,
777 N.W.2d 637. As is our usual practice, we deem it
appropriate to order Attorney Sayaovong to pay the full costs of
the proceeding.
¶22 IT IS ORDERED that the license of Amoun Vang Sayaovong
to practice law in Wisconsin is suspended for a period of six
months, effective the date of this order.
¶23 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Amoun Vang Sayaovong shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$852.43.
¶24 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Amoun Vang Sayaovong shall comply with the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
¶25 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
¶26 IT IS FURTHER ORDERED that the temporary suspension of
Amoun Vang Sayaovong's license to practice law issued on
February 19, 2014, is hereby lifted.
¶27 IT IS FURTHER ORDERED that the administrative
suspension of Amoun Vang Sayaovong's license to practice law due
10
No. 2015AP680-D
to his failure to pay mandatory bar dues and failure to comply
with continuing legal education requirements remains in effect.
11
No. 2015AP680-D
1