Office of Lawyer Regulation v. Schwitzer

2017 WI 53
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP675-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Matthew R. Schwitzer, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Matthew R. Schwitzer,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SCHWITZER
OPINION FILED: June 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 53
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP675-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Matthew R. Schwitzer, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, JUN 1, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Matthew R. Schwitzer,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended
¶1 PER CURIAM. We review the report and recommendation
of Referee Jonathan V. Goodman that the license of Attorney
Matthew R. Schwitzer be suspended for six months for
professional misconduct and that Attorney Schwitzer pay the full
costs of this proceeding, which are $1,661.68 as of May 25,
2017.
¶2 After careful review of the matter, we adopt the
referee's findings of fact and conclusions of law. We agree
No. 2015AP675-D
with the referee that a six-month suspension of Attorney
Schwitzer's law license is an appropriate sanction for his
professional misconduct. We further agree that the full costs
of the proceeding should be assessed against Attorney Schwitzer.
¶3 Attorney Schwitzer was admitted to practice law in
Wisconsin in 2007. He practiced in Green Bay. His Wisconsin
law license was suspended in 2013 for failure to pay State Bar
dues and failure to file required trust account certifications.
His Wisconsin law license was also suspended in 2014 for failure
to comply with continuing legal education reporting
requirements. On September 25, 2014, Attorney Schwitzer's law
license was additionally suspended for willful failure to
cooperate with an Office of Lawyer Regulation (OLR)
investigation concerning his conduct. His law license remains
suspended.
¶4 The OLR filed a complaint against Attorney Schwitzer
on April 6, 2015. On July 13, 2015 the OLR filed an amended
complaint alleging five counts of misconduct. The complaint
alleged that on February 4, 2014, Attorney Schwitzer was
convicted in Brown County of unlawful phone use – threatens
harm, in violation of Wis. Stat. § 947.012(1)(a), a Class B
misdemeanor; Possession of THC, in violation of Wis. Stat.
§ 961.41(3g)(e), an unclassified misdemeanor; and Possession of
Cocaine/Coca, in violation of Wis. Stat. § 961.41(3g)(c), an
unclassified misdemeanor. Other charges relating to possession
of drug paraphernalia, narcotics, and illegally obtained
prescription drugs were dismissed but read in. The Brown County
2
No. 2015AP675-D
circuit court withheld sentence and placed Attorney Schwitzer on
two years' probation, conditioned on thirty days in jail, to run
concurrently on each of the three counts. Attorney Schwitzer
was also ordered to comply with his healthcare provider's
recommendations, continue psychological and medical treatment,
take all prescription medications, surrender a firearm, and have
no contact with anyone who uses, sells, or possesses illegal
drugs.
¶5 On October 20, 2014, Attorney Schwitzer fell asleep or
lost consciousness while driving his car, drifted out of his
lane of travel, and sideswiped another driver's car. The police
officer who interacted with Attorney Schwitzer at the scene
observed that Attorney Schwitzer had an unsteady balance, was
shaking and sweating, his pupils were dilated, and he was having
a hard time forming sentences and was slurring his words.
¶6 When the officer asked Attorney Schwitzer to turn off
his car, the officer noticed there was a female passenger in the
car. The female passenger was not breathing. The officer
performed CPR until Fire and Rescue arrived. Fire and Rescue
administered Narcan to the passenger, at which time she regained
consciousness. The female passenger told a firefighter
transporting her to the hospital that she had snorted heroin in
Attorney Schwitzer's car and had lost consciousness. Upon
searching Attorney Schwitzer's car, officers found a plastic
baggie containing cocaine and a rolled up $20 bill which tested
positive for cocaine.
3
No. 2015AP675-D
¶7 On April 3, 2015, in Washington County circuit court,
Attorney Schwitzer pled guilty and was convicted of possession
of cocaine, as a party to a crime, an unclassified misdemeanor,
in violation of Wis. Stat. § 961.41(3g)(c). A second count for
possession of drug paraphernalia was dismissed but read in. The
Washington County circuit court sentenced Attorney Schwitzer to
five months in jail.
¶8 The OLR's amended complaint alleged the following
count of misconduct with respect to Attorney Schwitzer's
convictions:
Count 1: By engaging in the conduct leading to his
convictions of three misdemeanors in State v.
Schwitzer, Brown County Case No. 2013 CF 1142, and one
misdemeanor in State v. Schwitzer, Marinette County
Case No. 2014 CF 1150, Attorney Schwitzer violated SCR
20:8.4(b).1
¶9 The OLR's amended complaint also alleged that prior to
his August 2013 arrest, Attorney Schwitzer practiced law with
Attorneys Todd G. Simon and Timothy J. Feldhausen as part of the
law firm Schwitzer Simon, LLC. Attorney Schwitzer and his
brother, Kevan Schwitzer created a website used by the law firm.
Attorney Schwitzer's partners had no control or access to the
content of the website. Following Attorney Schwitzer's arrest,
Attorneys Simon and Feldhausen negotiated a separation from
Schwitzer Simon, LLC, which was completed in May 2014 by the
1
SCR 20:8.4(b) provides: "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."
4
No. 2015AP675-D
signing of a formal separation agreement. Before the separation
was complete, Attorneys Simon and Feldhausen had asked Attorney
Schwitzer to remove their information from the website. A
formal separation agreement signed in May 2014 required Attorney
Schwitzer to remove Simon and Feldhausen's information from the
website.
¶10 The website, as controlled by Attorney Schwitzer,
continued to operate and be accessible by the public following
Attorney Schwitzer's suspension until at least November 10,
2014. Sometime between January 4, 2014, and August 11, 2014,
Attorney Schwitzer caused the website to be modified to
advertise a law firm called Matthew R. Schwitzer, LLC, of which
Attorney Schwitzer was the only attorney. There is no
registered Wisconsin limited liability company named Matthew R.
Schwitzer, LLC, or any similarly named company other than
Schwitzer Simon, LLC.
¶11 As of October 30, 2014, the website continued to state
that Attorney Schwitzer was admitted to practice law in
Wisconsin as a member of the Wisconsin Bar Association and was
also admitted to practice before the Supreme Court of Wisconsin.
As of that date, the website invited website visitors to "Call
today . . . for a free initial consultation." The website
identified the address for Matthew R. Schwitzer, LLC, as P.O.
Box 8413, Green Bay, Wisconsin 54308, which was the same address
provided to the OLR by Attorney Schwitzer for communications
during the OLR's investigation.
5
No. 2015AP675-D
¶12 The OLR's amended complaint alleged the following
count of misconduct with respect to the website:
Count 2: By causing the website to be modified to
hold Attorney Schwitzer out as an attorney admitted to
practice law in Wisconsin at a time when his license
to practice law was suspended, Attorney Schwitzer
violated SCR 20:5.5(b)(2)2 and SCR 20:7.1(a)3
¶13 The OLR's amended complaint also alleged that
beginning in 2013, the OLR began to investigate Attorney
Schwitzer in connection with the criminal charges filed against
him in Brown County. At Attorney Schwitzer's request, the OLR
agreed to put its investigation on hold pending resolution of
the Brown County criminal case. In May 2014, after the OLR's
file was reopened, an OLR investigator wrote to Attorney
Schwitzer inquiring about the circumstances surrounding his
convictions. Attorney Schwitzer failed to respond to the
investigator's initial letter, and he further failed to respond
to either a second letter sent by both certified and regular
mail or an order from this court requiring him to show cause in
writing why this court should not grant the OLR's motion seeking
2
SCR 20:5.5(b)(2) provides: "A lawyer who is not admitted
to practice in this jurisdiction shall not.. .Hold out to the
public or otherwise represent that the lawyer is admitted to the
practice of law in this jurisdiction."
3
SCR 20:7.1(a) provides: "A lawyer shall not make a false
or misleading communication about the lawyer or the lawyer's
services. A communication is false or misleading if
it...contains a material misrepresentation of fact or law, or
omits a fact necessary to make the statement considered as a
whole not materially misleading..."
6
No. 2015AP675-D
an order suspending his license to practice law for a willful
failure to cooperate with the OLR's investigation concerning his
conduct. As noted above, on September 25, 2014, this court
granted the OLR's motion and temporarily suspended Attorney
Schwitzer's law license.
¶14 The OLR's amended complaint stated the following count
with respect to Attorney Schwitzer's failure to cooperate with
the OLR's investigation into his conduct:
Count 3: By failing to provide the information
requested by the OLR's May 12, 2014 correspondence,
Attorney Schwitzer violated SCR 22.03(6),4 via SCR
20:8.4(h).5
¶15 The final two counts of misconduct alleged in the
OLR's amended complaint arose out of Attorney Schwitzer's
attempt to transfer funds to himself from his law firm's trust
account. The amended complaint alleged that as of August 19,
2013, the date Attorney Schwitzer was arrested in Brown County,
Schwitzer Simon, LLC, maintained a client trust account at BMO
Harris Bank. Attorneys Schwitzer, Simon, and Feldhausen were
4
SCR 22.03(6) provides: "In the course of the
investigation, the respondent's willful 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..."
5
SCR 20:8.4(h) provides: "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 22.03(2), SCR 22:03(6)..."
7
No. 2015AP675-D
the only people authorized to disburse money from or otherwise
access the trust account.
¶16 On August 20, 2013, while incarcerated in the Brown
County Jail, Attorney Schwitzer used a fellow inmate's
contraband cell phone to access the trust account and initiated
a transfer of $2,000 from the trust account to a personal
account belonging to Attorney Schwitzer. Attorney Simon and/or
Attorney Feldhausen learned of Attorney Schwitzer's attempt to
transfer trust account proceeds and caused BMO Harris Bank to
reverse the transaction. In correspondence to the OLR, Attorney
Schwitzer admitted attempting to transfer funds from the trust
account to his personal account while incarcerated in the Brown
County Jail. The OLR's investigation was unable to determine
whether Attorney Schwitzer used another inmate's telephone to
access the trust account by phone or whether he attempted to
transfer funds by using the internet connection through the
contraband phone. Pursuant to supreme court rules,
disbursements from a trust account may not be made
telephonically or by way of internet transactions.
¶17 The OLR's amended complaint alleged the following
counts of misconduct with respect to the attempted trust account
transfer:
Count 4: By accessing his law firm's trust account
from another inmate's contraband cell phone, Attorney
Schwitzer made client and third party funds being held
8
No. 2015AP675-D
in trust by his firm vulnerable to third party access,
in violation of SCR 20:1.15(b)(1).6
Count 5: By attempting [in violation of SCR
20:8.4(a)7] to transfer funds to himself from his law
firm's trust account by using a fellow inmate's
contraband cell phone Attorney Schwitzer either
attempted to make a disbursement by telephone
transfer, in violation of SCR 20:1.15(e)(4)(b)8 or
Attorney Schwitzer attempted to make a disbursement by
internet transaction, in violation of SCR
20:1.15(e)(4)(c).9
¶18 On October 10, 2016, Attorney Schwitzer filed an
answer to the amended complaint admitting virtually all of
allegations and stipulating that he be found in violation of the
supreme court rules as alleged in the five counts of misconduct
in the amended complaint. Attorney Schwitzer further stipulated
6
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.
SCR 20:1.15(b)(1) provided: "A lawyer shall hold in trust,
separate from the lawyer's own property, that property of
clients and third parties that is in the lawyer's possession in
connection with a representation."
7
SCR 20:8.4(a) provides: "It is professional misconduct
for a lawyer to...violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another."
8
SCR 20:1.15(e)(4)(b) provided: "No deposits or
disbursements shall be made to or from a pooled trust account by
a telephone transfer of funds."
9
SCR 20:1.15(e)(4)(c) provided: "A lawyer shall not make
deposits to or disbursements from a trust account byway of an
Internet transaction."
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No. 2015AP675-D
that an appropriate level of discipline to impose in response to
his misconduct was a six-month suspension of his license to
practice law in Wisconsin.
¶19 The referee issued his report and recommendation on
January 12, 2017. The referee found that the OLR had met its
burden of proof by clear, satisfactory, and convincing evidence
that Attorney Schwitzer committed the five counts of misconduct
set forth in the OLR's amended complaint. The referee further
agreed that a six-month suspension of Attorney Schwitzer's
license to practice law in Wisconsin was an appropriate sanction
for his misconduct.
¶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 There is no showing that any of the referee's findings
of fact are clearly erroneous. Accordingly, we adopt them. We
further agree with the referee's conclusions of law that
Attorney Schwitzer violated the supreme court rules enumerated
above.
¶22 Upon careful review of the matter, we agree with the
referee's recommendation for a six-month suspension of Attorney
Schwitzer's license to practice law in Wisconsin. Although no
two disciplinary proceedings are precisely the same, a six-month
10
No. 2015AP675-D
suspension is generally consistent with the sanction imposed in
somewhat analogous cases. For example, in In re Disciplinary
Proceedings Against Soldon, 2010 WI 27, 324 Wis. 2d 4, 782
N.W.2d 81, an attorney who was convicted of multiple counts of
retail theft and fleeing and eluding an officer, as well as
failing to cooperate with the OLR's investigation of her
conduct, received a six-month suspension. In addition, in In re
Disciplinary Proceedings Against Meagher, 2003 WI 132, 266
Wis. 2d 18, 669 N.W.2d 733, an attorney who was convicted of
violating the federal Wire Wagering Act, 18 U.S.C. § 1084, also
received a six-month suspension. We find that a six-month
suspension is an appropriate sanction in this case as well. We
also agree that, consistent with our usual practice, Attorney
Schwitzer should be required to pay the full costs of this
proceeding.
¶23 IT IS ORDERED that the license of Matthew R. Schwitzer
to practice law in Wisconsin is suspended for a period of six
months, effective the date of this order.
¶24 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Matthew R. Schwitzer shall pay to the Office of
Lawyer Regulation the costs of this proceeding. If the costs
are not paid within the time specified, and absent a showing to
this court of his inability to pay the costs within that time,
the license of Matthew R. Schwitzer to practice law in Wisconsin
shall remain suspended until further order of the court.
¶25 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Matthew R. Schwitzer shall comply with the
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No. 2015AP675-D
provisions of SCR 22.26 concerning the duties of a person whose
license to practice law in Wisconsin has been suspended.
¶26 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
22.28(3).10
¶27 IT IS FURTHER ORDERED that the temporary suspension of
Attorney Matthew R. Schwitzer's license to practice law in
Wisconsin, imposed on September 25, 2014 due to his willful
failure to cooperate with the Office of Lawyer Regulation's
investigation in this matter, is hereby lifted.
10
In addition to obtaining reinstatement from the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Schwitzer will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.
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No. 2015AP675-D
1