Office of Lawyer Regulation v. Patrick A. Callahan

2016 WI 8SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1984-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Patrick A. Callahan, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Patrick A. Callahan,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CALLAHAN
OPINION FILED: February 10, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 8NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1984-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Patrick A. Callahan, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
FEB 10, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Patrick A. Callahan,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to Supreme Court Rule (SCR) 22.121 by the Office of Lawyer
1
SCR 22.12 (Stipulation) provides:
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may
consider the complaint and stipulation without the
appointment of a referee, in which case the supreme
court may approve the stipulation, reject the
(continued)
No. 2015AP1984-D
Regulation (OLR) and Attorney Patrick A. Callahan. In the
stipulation, Attorney Callahan admits the misconduct alleged by
the OLR and agrees to a 60-day suspension of his Wisconsin law
license.
¶2 We adopt the stipulated facts and conclusions of law.
We agree that Attorney Callahan's misconduct warrants the
suspension of his Wisconsin law license for a period of 60 days.
The OLR advises that this court should not impose either
restitution or the costs of this proceeding upon Attorney
Callahan, and we accept that recommendation.
stipulation, or direct the parties to consider
specific modifications to the stipulation.
(2) If the supreme court approves a stipulation,
it shall adopt the stipulated facts and conclusions of
law and impose the stipulated discipline.
(3) If the supreme court rejects a stipulation, a
referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(3m) If the supreme court directs the parties to
consider specific modifications to the stipulation,
the parties may, within 20 days of the date of the
order, file a revised stipulation, in which case the
supreme court may approve the revised stipulation,
adopt the stipulated facts and conclusions of law, and
impose the stipulated discipline. If the parties do
not file a revised stipulation within 20 days of the
date of the order, a referee shall be appointed and
the matter shall proceed as a complaint filed without
a stipulation.
(4) A stipulation rejected by the supreme court
has no evidentiary value and is without prejudice to
the respondent's defense of the proceeding or the
prosecution of the complaint.
2
No. 2015AP1984-D
¶3 Attorney Callahan was admitted to the practice of law
in Wisconsin in 1998. Although Attorney Callahan has not been
the subject of prior disciplinary proceedings, his law license
is currently suspended due to his failure to pay mandatory bar
dues, failure to file a trust account certification, and failure
to comply with continuing legal education requirements. In
addition, Attorney Callahan's law license has been suspended
since November 26, 2013, for noncooperation with the OLR's
investigation into the matter that is the subject of the
complaint and stipulation now before this court.
¶4 The complaint and stipulation concern five misconduct
counts and involve one client, C.R. According to the complaint
and the stipulation, C.R. met with Attorney Callahan in April
2011 to discuss her recent and allegedly wrongful termination
from her job. In July 2012, Attorney Callahan filed on C.R.'s
behalf a discrimination complaint against C.R.'s former employer
with the Equal Rights Division (ERD) of the Wisconsin Department
of Workforce Development (DWD). This discrimination complaint
was time-barred, however, because the statutorily imposed
deadline to file the complaint expired several months earlier,
in February 2012. The DWD-ERD dismissed the complaint as
untimely filed.
¶5 Attorney Callahan appealed the dismissal. Shortly
thereafter, Attorney Callahan made an offer to C.R.'s former
employer to settle C.R.'s case for $10,000——even though he had
no authority from C.R. to settle the case on those terms. The
attorney for C.R.'s former employer accepted the offer.
3
No. 2015AP1984-D
Attorney Callahan then represented to the ERD administrative law
judge that the parties had settled the case and that settlement
paperwork would be forthcoming. After 19 months passed, the ERD
administrative law judge affirmed the decision to dismiss C.R.'s
discrimination complaint as untimely filed. The administrative
law judge noted that, although C.R. appeared blameless for the
untimely filing, Attorney Callahan had presented no valid excuse
for the delay.
¶6 In July 2012, on the same day that Attorney Callahan
filed the untimely discrimination complaint against C.R.'s
former employer with the DWD-ERD, Attorney Callahan also filed a
civil suit against C.R.'s former employer. In February 2013,
about six weeks before the discovery cutoff date set by the
circuit court, Attorney Callahan sent a letter to the circuit
court in which he admitted that he had: (1) failed to perform
necessary discovery activities to prepare the case adequately;
(2) failed to communicate with C.R. about the status of her
claim; (3) failed to inform C.R. of the scheduling of her
deposition; (4) advised opposing counsel that C.R. would accept
$10,000 to settle the case even though he did not have C.R.'s
authority to do so; and (5) failed to timely file C.R.'s
discrimination complaint with the DWD-ERD and to report this
fact to C.R. Attorney Callahan also mailed a copy of this
letter to the OLR.
¶7 At Attorney Callahan's request, the circuit court
permitted Attorney Callahan to withdraw from the representation
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No. 2015AP1984-D
of C.R. The circuit court then dismissed C.R.'s case without
prejudice.
¶8 In April and May 2013, the OLR sent letters to
Attorney Callahan seeking information related to his
representation of C.R. Attorney Callahan did not respond to
these letters, which ultimately led to this court's November 26,
2013 order temporarily suspending Attorney Callahan's law
license for failing to cooperate with the OLR's investigation.
¶9 In September 2015, the OLR filed a complaint against
Attorney Callahan which alleged the following five counts of
misconduct:
 Count 1: By failing to perform the necessary work to
advance C.R.'s circuit court suit against C.R.'s
former employer, and by failing to properly advance
C.R.'s DWD-ERD discrimination claim, Attorney Callahan
violated SCR 20:1.3.2
 Count 2: By advancing a settlement offer in C.R.'s
case that C.R. had not authorized, Attorney Callahan
violated SCR 20:1.2(a).3
2
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
3
SCR 20:1.2(a) provides, in pertinent part, that:
[A] lawyer shall abide by a client's decisions
concerning the objectives of representation and, as
required by SCR 20:1.4, shall consult with the client
as to the means by which they are to be pursued. A
lawyer may take such action on behalf of the client as
is impliedly authorized to carry out the
(continued)
5
No. 2015AP1984-D
 Count 3: By representing to opposing counsel that
C.R. would settle her claims for $10,000 when he knew
that he had no authority from C.R. to do so, Attorney
Callahan violated SCR 20:8.4(c).4
 Count 4: By failing to keep C.R. apprised of the
status of her discrimination claim with the DWD-ERD,
and by failing to keep C.R. apprised of the status of
her circuit court case, Attorney Callahan violated
SCR 20:1.4(a)(3) and (4).5
 Count 5: By failing to provide timely written
responses to the OLR's investigative letters regarding
C.R.'s grievance, Attorney Callahan violated
SCR 22.03(2) and (6).6
representation. A lawyer shall abide by a client's
decision whether to settle a matter.
4
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
5
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 "promptly comply with reasonable
requests by the client for information."
6
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.
(continued)
6
No. 2015AP1984-D
¶10 In late December 2015, the OLR and Attorney Callahan
executed the stipulation now before the court. In addition to
stipulating to the facts as set forth above, the parties
stipulated to discipline in the form of a 60-day suspension of
Attorney Callahan's Wisconsin law license.
¶11 The stipulation provides that it is not the result of
a plea bargain. Attorney Callahan also verifies that he fully
understands the misconduct allegations, the ramifications if
this court should impose the stipulated level of discipline, his
right to contest the matter, and his right to consult with
counsel. He further verifies that his entry into the
stipulation was made knowingly and voluntarily, and that it
represents his admission of all misconduct and his assent to the
level and type of discipline sought by the OLR director.
¶12 The OLR has filed a memorandum in support of the
stipulation. The memorandum discusses attorney disciplinary
cases that resulted in 60- or 90-day suspensions for misconduct
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.
7
No. 2015AP1984-D
that generally involved the failure to perform timely work for a
client, the failure to properly communicate with a client, and
the failure to cooperate with an OLR investigation into
misconduct.
¶13 The OLR's memorandum states that the case most similar
to the facts at issue here is In re Disciplinary Proceedings
Against Fitzgerald, 2006 WI 58, 290 Wis. 2d 713, 714 N.W.2d 925.
In Fitzgerald, an attorney received a 90-day suspension for,
among other things, failing to respond to an insurance company's
inquiries concerning her client's case; falsely telling her
client that the insurance company had made a settlement offer
when the insurance company had not done so; fabricating a
release document from the insurance company; and using her own
money as the settlement funds allegedly offered by the insurance
company. The OLR states that, like Attorney Fitzgerald,
Attorney Callahan failed to perform the necessary work to
advance his client's case and then later tried to cover it up by
advancing a ruse that the case had settled. However, on the
basis of Attorney Callahan's self-reporting of his misconduct to
the circuit court and to the OLR, the OLR recommends that
Attorney Callahan receive a 60-day suspension, rather than the
90-day suspension imposed in Fitzgerald. The OLR also considers
as a mitigating factor the fact that Attorney Callahan has not
been the subject of prior disciplinary proceedings.
¶14 We adopt the stipulation and the stipulated facts and
conclusions of law, and impose the stipulated discipline. We
agree that the seriousness of Attorney Callahan's misconduct
8
No. 2015AP1984-D
warrants the suspension of his Wisconsin law license for 60
days. The OLR does not seek restitution, so we impose none. In
light of the stipulation, the OLR does not seek costs, so we
also do not impose costs.
¶15 IT IS ORDERED that the license of Patrick A. Callahan
to practice law in Wisconsin is suspended for a period of 60
days, effective the date of this order.
¶16 IT IS FURTHER ORDERED that Patrick A. Callahan shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶17 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
¶18 IT IS FURTHER ORDERED that the November 26, 2013
temporary suspension of Patrick A. Callahan's license to
practice law in Wisconsin, due to his willful failure to
cooperate with the OLR's grievance investigation in this matter,
is lifted.
¶19 IT IS FURTHER ORDERED that the administrative
suspension of Patrick A. Callahan's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues, failure
to file a trust account certification, and failure to comply
with continuing legal education requirements, will remain in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).
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No. 2015AP1984-D
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