Office of Lawyer Regulation v. Steven J. Sarbacker

2017 WI 86SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2486-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Steven J. Sarbacker, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Steven J. Sarbacker,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SARBACKER
OPINION FILED: September 15, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 86NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2486-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Steven J. Sarbacker, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, SEP 15, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Steven J. Sarbacker,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee James C. Boll, approving a partial stipulation filed
by the Office of Lawyer Regulation (OLR) and Attorney Steven J.
Sarbacker and concluding that Attorney Sarbacker committed the
professional misconduct alleged by the OLR, as stipulated by the
parties. The referee determined that a 60-day suspension of
Attorney Sarbacker's license to practice law is appropriate.
No. 2016AP2486-D
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law and agree that
a 60-day license suspension is an appropriate sanction for
Attorney Sarbacker's misconduct. We also find it appropriate to
impose the full costs of this proceeding, which are $1,375.83 as
of June 13, 2017. The OLR does not seek restitution and no
restitution is ordered.
¶3 Attorney Sarbacker was admitted to practice law in
Wisconsin in 1995. He practices in Portage, Wisconsin. In
2013, Attorney Sarbacker received a private reprimand for his
conduct resulting in a misdemeanor conviction for operating
while intoxicated. Private Reprimand No. 2013-15 (electronic
copy available at
https://compendium.wicourts.gov/app/raw/002634.html). In 2016,
he received a private reprimand for his failure to obey a court
order pertaining to child support. Private Reprimand No. 2016-9
(electronic copy available at
https://compendium.wicourts.gov/app/raw/002899.html).
¶4 On December 21, 2016, the OLR filed a six count
disciplinary complaint alleging five counts of professional
misconduct involving one client matter and an additional count
of professional misconduct based on criminal misconduct
committed by Attorney Sarbacker. The OLR sought a 60-day
suspension and costs.
¶5 The facts, to which the parties have stipulated, are
as follows. In November 2011, D.F. and L.F., a married couple,
obtained a $5,441.20 money judgment against a tenant in a
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No. 2016AP2486-D
Columbia County circuit court proceeding. They retained
Attorney Sarbacker to collect the money judgment. There was no
written fee agreement. In July 2012, Sarbacker advised the
clients in writing that he could no longer pursue their
collection case. He did not charge them.
¶6 In 2013, the couple again retained Attorney Sarbacker
to pursue the collection case. Again, there was no written fee
agreement. By June of 2014, Attorney Sarbacker had successfully
arranged for the Ho-Chunk Nation's Department of Treasury-
Payroll Division (DOT-P) to garnish the wages of the debtor and,
in July 2014, Attorney Sarbacker began receiving weekly
garnishment checks on behalf of his clients. At this time, the
outstanding debt was $5,914.45.
¶7 Attorney Sarbacker and the clients agreed that his fee
and costs would total $2,032.73 and that he would take this
amount from the garnishment checks, then send the balance of the
garnishment funds to the clients. Attorney Sarbacker knew the
total cost of representation exceeded $1,000, a fact relevant to
whether a written fee agreement was required.
¶8 Attorney Sarbacker began depositing garnishment checks
into both his trust account and operating accounts. By December
29, 2014, Attorney Sarbacker had received 24 garnishment checks
totaling $2,038.30 - $5.57 more than his agreed upon fee of
$2,032.73. After December 29, 2014, Attorney Sarbacker received
25 additional garnishment checks, representing the clients'
portion of the garnishment but he did not disburse these funds
to the clients.
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No. 2016AP2486-D
¶9 By June 2015, the clients had demanded their
garnishment portion from Attorney Sarbacker but Attorney
Sarbacker failed to send them the garnished funds. Accordingly,
L.F. contacted the DOT-P and requested that all remaining
garnishment checks be sent directly to the clients. On June 26,
2015, the DOT-P began sending weekly garnishment checks directly
to the clients.
¶10 On July 14, 2015, L.F. sent a certified letter to
Attorney Sarbacker listing the clients' unsuccessful attempts to
contact him. She demanded payment plus interest of the clients'
portion of the garnishment funds in his possession. Attorney
Sarbacker failed to respond.
¶11 Finally, by early October 2015, Attorney Sarbacker
sent the clients a cashier's check in the amount of $2,171.29
and a receipt documenting $61.25 of incurred costs.1
¶12 The clients filed a grievance with the OLR. Attorney
Sarbacker failed to promptly respond to the OLR's requests for
information about the grievance.
¶13 Based on these events, the OLR alleged and Attorney
Sarbacker has stipulated to five counts of misconduct in the
complaint, as follows:
Count One: By representing the clients pursuant to an
unwritten contingent fee agreement, Attorney Sarbacker
violated SCR 20:1.5(c).2
1
In total, the DOT-P issued 70 garnishment checks totaling
$5,914.45. The clients received $3,881.72 ($1,710.43 from the
DOT-P and $2,171.29 from Attorney Sarbacker).
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No. 2016AP2486-D
Count Two: By depositing 15 garnishment checks
totaling $1,273.49 into his business account, that
were the property of the clients, and by disbursing
$892.23 of the clients' funds to himself from his
trust account Attorney Sarbacker, in each instance,
violated SCR 20:1.15(b)(1).3
2
SCR 20:l.5(c) provides:
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by par.
(d) or other law. A contingent fee agreement shall be
in a writing signed by the client, and shall state the
method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the
recovery; and whether such expenses are to be deducted
before or after the contingent fee is calculated. The
agreement must clearly notify the client of any
expenses for which the client will be liable whether
or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement
stating the outcome of the matter and if there is a
recovery, showing the remittance to the client and the
method of its determination.
3
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.
Former 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
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.
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No. 2016AP2486-D
Count Three: By depositing 10 checks totaling $892.23
into his trust account and then disbursing almost all
of those funds to himself or his law office, and by
depositing the remaining 15 checks totaling $1,273.49
directly into his operating account, Attorney
Sarbacker, in each instance, violated SCR 20:8.4(c).4
Count Four: By failing to promptly deliver to the
clients their portion of the garnishment funds,
Attorney Sarbacker violated former SCR 20:1.15(d)(1).5
Count Five: By failing to timely provide the OLR with
a written response to the clients' grievance, Attorney
Sarbacker violated SCR 22.03(2),6 enforceable via
20:8.4(h).7
4
SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to . . . engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
5
Former SCR 20:1.15(d)(1) provided:
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 funds or other property that
the client or 3rd party is entitled to receive.
6
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
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
(continued)
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No. 2016AP2486-D
¶14 The sixth and final count of alleged misconduct does
not involve representation of a client. On March 16, 2016,
Attorney Sarbacker was charged in Sauk County circuit court with
three misdemeanors: pointing a firearm at or toward another,
battery, and disorderly conduct. See State v. Sarbacker, Sauk
County circuit court case no. 2016CM000113. Attorney Sarbacker
eventually pled no contest to the battery and disorderly conduct
charges and the pointing a firearm charge was dismissed.
Attorney Sarbacker entered into a 12-month deferred prosecution
agreement whereby if he successfully complies with specific
conditions, the charges will be dismissed.
¶15 After the court appointed a referee in this
disciplinary matter, the parties executed a partial stipulation.
The stipulation provides that Attorney Sarbacker does not
contest the facts and that he admits to committing the alleged
misconduct. He affirms that: the stipulation did not result
from plea bargaining; he fully understands the misconduct
allegations; he fully understands his right to contest this
matter; he fully understands his right to consult with counsel;
his entry into this stipulation is made knowingly and
questions, furnish documents, and present any
information deemed relevant to the investigation.
7
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 21.15(4), SCR 22.001(9)(b), SCR 22.03(6), or SCR
22.04(1)."
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No. 2016AP2486-D
voluntarily; and, his entry into this stipulation represents his
decision not to contest the misconduct alleged in the complaint.
¶16 The parties agreed to submit the question of
appropriate discipline to the referee, without an evidentiary
hearing. Both parties filed briefs on the question of
discipline. As noted, the OLR sought a 60-day suspension.
Attorney Sarbacker argued for a public reprimand. In his brief,
Attorney Sarbacker offered some personal context for the
criminal charges against him. He also stated that a suspension
would have a very adverse effect on his practice.
¶17 The OLR objected to the narrative in Attorney
Sarbacker's brief, describing it as impermissible hearsay and an
effort to present new evidence and new facts beyond the
complaint and stipulation. The OLR asked the referee to
disregard this information.
¶18 The referee issued a thorough report and
recommendation on May 25, 2017. Based upon the parties'
stipulation, the referee found that the OLR met its burden of
proof with respect to all six counts of misconduct alleged in
the complaint. With respect to the question of appropriate
discipline, the referee reviewed the parties' respective
submissions. The referee observed that Attorney Sarbacker
submitted no authority that would justify his request for a
public reprimand. The referee acknowledged that Attorney
Sarbacker's brief presented additional facts surrounding the
incident that led to count six of the complaint. The referee
noted that he was "not able to determine the veracity and, thus,
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No. 2016AP2486-D
the impact of the additional facts" and, accordingly, the
referee limited his consideration to the stipulated facts in
determining sanctions.
¶19 The referee then identified the factors relevant to
determining the appropriate sanction, which include:
[T]he seriousness, nature and extent of misconduct,
the level of discipline needed to protect the public,
the courts, and the legal system from repetition of
the attorney's misconduct, the need to impress upon
the attorney the seriousness of the misconduct and the
need to deter other attorneys from committing similar
misconduct.
In re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72,
290 Wis. 2d 30, 712 N.W.2d 877.
¶20 The referee observed that the OLR's brief provided
several instructive cases, including two cases that were
factually similar, although the lawyers in those cases each had
more serious prior discipline than Attorney Sarbacker. In re
Disciplinary Proceedings Against Wood, 2014 WI 116, 358
Wis. 2d 472, 854 N.W.2d 844, (ninety-day suspension for seven
counts of misconduct stemming from representation of clients in
a dispute with a construction company); and In re Disciplinary
Proceedings Against Steinhafel, 2013 WI 93, 351 Wis. 2d 313, 839
N.W.2d 404, (four-month suspension for seven counts of
misconduct stemming from two client matters and lawyer's
criminal conviction). The referee found persuasive two cases
both imposing a 60-day suspension. See In Disciplinary
Proceedings Against Bartz, 2015 WI 61, 362 Wis. 2d 752, 864
N.W.2d 881, (lawyer with previous private reprimand suspended
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No. 2016AP2486-D
for 60 days based on five counts of misconduct including failure
to disburse settlement funds and failure to cooperate); and In
re Disciplinary Proceedings Against Trowbridge, 177 Wis. 2d 485,
501 N.W.2d 452 (1993), (lawyer with previous private reprimand
suspended for 60 days for failure to respond to client
inquiries, failure to prosecute, and trust account violations,
including a violation of SCR 20:8.4(c) for converting a $300
check payable to him as personal representative of his mother's
estate).
¶21 In making his recommendation for a 60-day suspension
here, the referee noted that Attorney Sarbacker had been
previously disciplined and that the misappropriation of client
funds occurred over a period of several months. The referee
expressed concern about the vulnerability of the clients, who
are both disabled. As mitigating factors, the referee noted
that Attorney Sarbacker reimbursed the clients and has completed
an anger management program. On balance, the referee
recommended this court suspend Attorney Sarbacker's license to
practice law for a period of 60 days.
¶22 No appeal was filed so we review this matter pursuant
to SCR 22.17(2). This court will adopt the referee's findings
of fact unless they are 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
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No. 2016AP2486-D
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
¶23 We adopt the referee's findings of fact and
conclusions of law that Attorney Sarbacker violated the supreme
court rules as alleged in the six counts of the complaint. We
further agree with the referee that a 60-day suspension of
Attorney Sarbacker's license to practice law in Wisconsin is an
appropriate level of discipline.
¶24 No two cases are precisely the same, but we agree with
the referee that In re Disciplinary Proceeding Against Bartz,
2015 WI 61, 362 Wis. 2d 752, 864 N.W.2d 881 and In re
Disciplinary Proceeding Against Trowbridge, 177 Wis. 2d 485, 501
N.W.2d 452 (1993) are instructive. We find the misconduct at
issue here to be reasonably analogous to the misconduct in these
cases, and we agree that a similar suspension is appropriate.
We deem it appropriate, as is our usual custom, to impose the
full costs of this disciplinary proceeding on Attorney
Sarbacker. As Attorney Sarbacker has made restitution to D.F.
and L.F., the OLR does not seek restitution and we do not impose
restitution.
¶25 IT IS ORDERED that Attorney Steven J. Sarbacker's
license to practice law in Wisconsin is suspended for a period
of 60 days, effective October 27, 2017.
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order Steven J. Sarbacker shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$1,375.83 as of June 13, 2017.
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No. 2016AP2486-D
¶27 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Steven J. Sarbacker 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.
¶28 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.28(3).
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