Office of Lawyer Regulation v. Eric L. Crandall

2015 WI 111SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2487-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Eric L. Crandall, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Eric L. Crandall,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CRANDALL
OPINION FILED: December 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, A.W. BRADLEY, J.J., dissent.
(Opinion filed)
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 111NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2487-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Eric L. Crandall, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 23, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Eric L. Crandall,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report filed by Referee
James G. Curtis, adopting two stipulations between the Office of
Lawyer Regulation (OLR) and Attorney Eric L. Crandall. The
referee agreed that Attorney Crandall committed five counts of
misconduct, as alleged in the OLR's complaint. The referee
further agreed with the parties that a public reprimand was an
appropriate level of discipline for Attorney Crandall's
misconduct. Finally, the referee recommended that Attorney
No. 2014AP2487-D
Crandall should be assessed the full costs of the proceeding,
which are $4,182.17 as of September 17, 2015.
¶2 After careful review of the matter, we conclude that
the referee's findings of fact are supported by clear,
satisfactory, and convincing evidence. We adopt the referee's
conclusions of law. We agree that the appropriate discipline
for Attorney Crandall's misconduct is a public reprimand, and we
agree that Attorney Crandall should bear the full costs of this
proceeding.
¶3 Attorney Crandall was admitted to the practice of law
in Wisconsin on September 19, 1991. He resides in New Richmond,
Wisconsin. He is also licensed to practice law in Minnesota.
¶4 Effective February 20, 2006, we suspended Attorney
Crandall's Wisconsin law license for three months as reciprocal
discipline to that imposed by the Minnesota Supreme Court for
neglecting client matters, failing to communicate with clients,
failing to appear at court hearings, failing to comply with
discovery rules, and failing to cooperate with the disciplinary
investigation. In re Disciplinary Proceedings Against Crandall,
2006 WI 6, 287 Wis. 2d 102, 708 N.W.2d 690.
¶5 On March 4, 2008, we publicly reprimanded Attorney
Crandall for advancing a frivolous claim, failing to file a
client's affidavit or a brief in opposition to a summary
judgment motion, failing to keep clients reasonably informed,
failing to return clients' files in a timely manner, and failing
to cooperate with the OLR's investigation. In re Disciplinary
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No. 2014AP2487-D
Proceedings Against Crandall, 2008 WI 14, 307 Wis. 2d 536,
745 N.W.2d 679.
¶6 Effective September 2, 2008, we suspended Attorney
Crandall's Wisconsin law license for 30 days as reciprocal
discipline to that imposed by the Minnesota Supreme Court for
failing to act with diligence and promptness, failing to
communicate with clients, engaging in conduct involving
dishonesty and misrepresentation, and failing to cooperate with
the Minnesota disciplinary investigation. In re Disciplinary
Proceedings Against Crandall, 2008 WI 112, 314 Wis. 2d 33,
754 N.W.2d 501.
¶7 Effective May 31, 2011, we suspended Attorney
Crandall's Wisconsin law license for five months for failing to
hold advance fees in trust, failing to refund unearned fees, and
failing to cooperate with the OLR's investigation. In re
Disciplinary Proceedings Against Crandall, 2011 WI 21,
332 Wis. 2d 698, 798 N.W.2d 183. Attorney Crandall was
reinstated to the practice of law on January 5, 2012.
¶8 On October 27, 2014, the OLR filed a five-count
complaint against Attorney Crandall alleging (1) that Attorney
Crandall had failed to comply with the requirements of Supreme
Court Rule (SCR) 22.26 relating to the duties of an attorney
whose license has been suspended and (2) that he had failed to
cooperate with OLR's investigation into his alleged misconduct.
¶9 Attorney Crandall filed an answer and this court
appointed Referee Curtis. We subsequently denied Attorney
Crandall's untimely motion to substitute a different referee.
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No. 2014AP2487-D
On or about April 29, 2014, the parties submitted a stipulation
in which Attorney Crandall admitted the facts and misconduct
alleged in the complaint and authorized the referee to make
findings of fact and conclusions of law based on these
allegations. The parties requested an evidentiary hearing on
the appropriate sanction.
¶10 Before the scheduled hearing, the parties reached a
second stipulation regarding the appropriate sanction. On
August 7, 2015, the parties stipulated to a public reprimand as
an appropriate sanction.
¶11 The referee filed his findings of fact, conclusions of
law, and recommendation for discipline on August 18, 2015. The
referee determined that the OLR had met its burden of proof with
respect to the five counts of misconduct alleged in the
complaint, and recommended that we accept the stipulations. We
summarize those counts now.
¶12 As previously stated, on April 26, 2011, Attorney
Crandall's license to practice law in Wisconsin was suspended
for a period of five months, effective May 31, 2011. The order
suspending Attorney Crandall mandated that he comply with the
requirements of SCR 22.26 pertaining to the duties of an
attorney whose license has been suspended.
¶13 In April and May of 2011, Attorney Crandall was listed
as attorney of record for J.M., a party to an appeal then-
pending before the Wisconsin Court of Appeals. On June 30,
2011, the Court of Appeals certified the appeal to this court.
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No. 2014AP2487-D
¶14 On September 27, 2011, this court issued an order in
response to a motion filed by J.M. in which she advised the
court that she had only recently learned that Attorney
Crandall's law license had been suspended. We granted J.M.'s
motion for a briefing extension and permitted substitution of
new counsel.
¶15 The OLR complaint alleged and the referee determined
that, by failing to send, on or before the effective date of his
suspension, written notice of his suspension by certified mail
to his client, J.M., Attorney Crandall violated SCR 22.26(1)(a)
and (b)1 (Count One).
¶16 The OLR complaint alleged and the referee determined
that, by failing to send, on or before the effective date of his
suspension, written notice of his suspension to the Court of
Appeals, Attorney Crandall also violated SCR 22.26(1)(c)2 (Count
Two).
1
SCR 22.26(1)(a) and (b) provide that, on or before the
effective date of license suspension, an attorney whose license
is suspended shall:
(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.
2
SCR 22.26(1)(c) provides that, on or before the effective
date of license suspension, an attorney whose license is
suspended shall:
(continued)
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No. 2014AP2487-D
¶17 In January of 2012, Attorney Crandall continued to be
identified, during his period of suspension, as the attorney of
record in three separate appellate cases. The OLR alleged that
Attorney Crandall did not properly provide either his clients or
the Court of Appeals with the notices required by SCR 22.26 in
those three cases. Accordingly, the referee determined that, by
failing to send, on or before the effective date of his
suspension, written notice of his suspension by certified mail
to the three clients in the three separate appeals, Attorney
Crandall violated SCR 22.26(1)(a) and (b) (Count Three).
¶18 In addition, the referee determined that, by failing
to send, on or before the effective date of his suspension,
written notice of his suspension to the Court of Appeals in the
three appellate cases, Attorney Crandall violated
SCR 22.26(1)(c) (Count Four).
¶19 Finally, the referee determined that Attorney Crandall
violated SCR 22.03(2) and (6),3 enforced via SCR 20:8.4(h),4 by
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 184
or, if there is none at the time notice is given,
shall state the client's place of residence.
3
SCR 22.03(2) and (6) provide:
(2) Upon commencing an investigation, the
director shall notify the respondent of the matter
(continued)
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No. 2014AP2487-D
failing to timely respond to the OLR's requests for a response
to a grievance investigation, doing so only after this court
issued an order to show cause (Count Five).
¶20 The referee then considered the stipulation for a
public reprimand, mindful of his need to consider the
seriousness, nature, and extent of misconduct, the level of
discipline needed to protect the public and the legal system
from repetition of the misconduct, the need to impress on the
attorney the seriousness of the misconduct, and the need to
deter others from committing similar acts. See In re
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.
4
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)."
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No. 2014AP2487-D
Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72,
290 Wis. 2d 30, 712 N.W.2d 877, citing In re Disciplinary
Proceedings Against Charlton, 174 Wis. 2d 844, 875-76,
498 N.W.2d 380 (1993). The referee noted that he considered
Attorney Crandall's prior disciplinary history and the concept
of progressive discipline. See In re Disciplinary Proceedings
Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d
501.
¶21 The referee noted that the OLR relied on three prior
cases in support of the recommended discipline. Public
Reprimand of Arik J. Guenther, 2007-3 (imposing public reprimand
where attorney failed to notify two clients of his suspension,
failed to include the two clients on his affidavit of compliance
filed with the OLR, and also failed to cooperate with the OLR);
Public Reprimand of Michael G. Trewin, 2006-6 (imposing public
reprimand where lawyer failed to notify the court and opposing
counsel of his suspension in several cases, failed to include
those cases on his affidavit of compliance filed with the OLR,
and had a conflict of interest on a matter); Public Reprimand of
Hazel J. Washington, 2007-10 (imposing public reprimand for
lawyer's failure to inform a client, opposing counsel, and the
court of her suspension; failure to list the client, court, and
file number on the affidavit of compliance filed with the OLR;
and failure to provide competent representation). The referee
observed that Attorney Crandall's ethical violations in this
matter reflect a level of indifference to the requirements of
the supreme court rules. The referee concluded that public
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No. 2014AP2487-D
discipline is appropriate and recommends that we publicly
reprimand Attorney Crandall in this matter.
¶22 The referee further recommends that the court follow
its general policy and impose the full costs of the proceeding
on Attorney Crandall.
¶23 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.
¶24 There is no showing that any of the referee's findings
of fact are erroneous. Accordingly, we adopt them. We also
agree with the referee's conclusions of law that Attorney
Crandall violated the supreme court rules set forth above. In
view of Attorney Crandall's fairly extensive prior disciplinary
history, we considered whether suspension is necessary to
impress upon Attorney Crandall the seriousness of his misconduct
and the importance of abiding by the rules of professional
conduct. On balance, we accept the referee's recommendation
that a public reprimand is an appropriate sanction for Attorney
Crandall's misconduct. Although no two fact situations are
identical, a public reprimand is generally consistent with the
sanction imposed in somewhat analogous cases. See Public
Reprimand of Ronald J. Thompson, 2012-18 (imposing public
reprimand for failure to comply with SCR 22.26 following license
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No. 2014AP2487-D
suspension); see also In re Disciplinary Proceedings Against
Mulligan, 2009 WI 12, 315 Wis. 2d 605, 759 N.W.2d 766 (imposing
public reprimand on lawyer with two prior reprimands).
¶25 We also agree that Attorney Crandall should be
required to pay the full costs of the proceeding, which are
$4,182.17.
¶26 IT IS ORDERED that Eric L. Crandall is publicly
reprimanded for professional misconduct.
¶27 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Eric L. Crandall shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶28 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2014AP2487-D.ssa
¶29 SHIRLEY S. ABRAHAMSON, J. (dissenting). I write in
dissent in several attorney discipline cases because I have
concerns about the discipline imposed.
¶30 This is Attorney Crandall's fifth brush with the OLR
in the seven years since 2008. He has been disciplined four
times previously: a three-month suspension, a public reprimand,
a 30-day suspension, and a five-month suspension. It does not
appear that the previous discipline had the impact the court
intended. Nevertheless, the court now imposes another public
reprimand. This sanction is too light. The court professes
that it has "long adhered to progressive discipline." OLR v.
Netzer, 2014 WI 7, ¶49, 352 Wis. 2d 310, 841 N.W.2d 820. The
principle of progressive discipline should be applied here. It
is not.
¶31 Moreover, I write to state my difficulty reconciling
the significantly different levels of discipline imposed in the
instant case (public reprimand) and in OLR v. Boyle, 2015 WI
110, ___ Wis. 2d ___, ___ N.W.2d ___.
¶32 In OLR v. Boyle, the referee found (and the court
agreed) that the respondent attorney committed all six charged
offenses (including two trust account violations). The
discipline: a 60-day suspension plus conditions. The
respondent attorney had received three private reprimands
between 2002 and 2012. How does the court justify imposing
harsher discipline on Attorney Boyle than on Attorney Crandall?
¶33 I also have difficulty reconciling the significantly
different levels of discipline imposed in the following three
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No. 2014AP2487-D.ssa
cases. The first two cases are based on a stipulation of the
parties. The third case is a default by the respondent
attorney:
• OLR v. Krogman, 2015 WI 113, ___ Wis. 2d ___, ___
N.W.2d ___: Upon stipulation admitting the factual
allegations, the court orders a four-month suspension
of license and conditions upon reinstatement. The
complaint alleged 22 counts of professional misconduct
involving four clients, misconduct relating to license
suspension, and misconduct relating to trust accounts.
The four-month suspension seems too light compared to
the discipline imposed in the other cases.
• OLR v. Aleman, 2015 WI 112, ___ Wis. 2d ___, ___
N.W.2d ___: Illinois imposed a two-year suspension
for two counts of misconduct stemming from co-founding
and working with a national debt settlement firm.
Upon stipulation of the parties, this court orders
reciprocal discipline in Wisconsin. The two-year
suspension seems too harsh compared to the discipline
imposed in other cases.
• OLR v. Sayaovong, 2015 WI 100, 365 Wis. 2d 200, 871
N.W.2d 217: This per curiam was released November 18,
2015, imposing suspension for a period of six months.
Attorney Sayaovong defaulted in the discipline case.
The complaint alleged six counts of misconduct, four
counts involving two clients and two counts involving
another client. In 2014 Attorney Sayaovong was
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No. 2014AP2487-D.ssa
publicly reprimanded for misconduct in two separate
client matters. See OLR v. Sayaovong, 2014 WI 94, 357
Wis. 2d 312, 850 N.W.2d 940. The discipline does not
seem consistent with the discipline imposed in other
cases.
¶34 For the reasons set forth, I write in each of these
cases.
¶35 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 2014AP2487-D.ssa
1