Office of Lawyer Regulation v. Richard W. Voss

2018 WI 18SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP931-D & 2014AP2086-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Richard W. Voss,
Respondent-Respondent.
------------------------------------------------
In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Richard W. Voss,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST VOSS
OPINION FILED: March 1, 2018
SUBMITTED ON BRIEFS: November 27, 2017
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent (2012AP931-D), respondent-
appellant (2014AP2086-D), there were briefs filed by Richard W.
Voss, Rhinelander.
For the complainant-appellant (2012AP931-D), complainant-
respondent (2014AP2086-D), there was a brief filed by Julie M.
Spoke and Office of Lawyer Regulation, Madison.
2018 WI 18NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP931-D & 2014AP2086-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Appellant,
MAR 1, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Richard W. Voss,
Respondent-Respondent.
In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Richard W. Voss,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
No. 2012AP931-D & 2014AP2086-D
¶1 PER CURIAM. Richard W. Voss has appealed a referee's
report recommending the denial of Attorney Voss's petition for
reinstatement of his license to practice law in Wisconsin. We
agree with the referee that Attorney Voss's license to practice
law should not be reinstated at this time. We direct Attorney
Voss to pay the costs of the reinstatement proceeding, which
totaled $4,034.75 as of November 13, 2017.
¶2 Attorney Voss was admitted to practice law in
Wisconsin in 1976 and practiced in Rhinelander. In 2004, he was
privately reprimanded for failing to provide competent
representation and failing to keep a client reasonably informed.
Private Reprimand No. 2004-24 (electronic copy available at
https://compendium.wicourts.gov/app/raw/001746.html). In 2006,
Attorney Voss was publicly reprimanded for various trust account
violations. Public reprimand of Richard W. Voss, No. 2006-7
(electronic copy available at https://compendium.wicourts.gov/
app/raw/001861.html).
¶3 In 2014, Attorney Voss's license to practice law was
suspended for 18 months for his conduct as the court appointed
guardian of the person and estate of an individual suffering
from mental illness. This court determined that Attorney Voss
committed 11 counts of misconduct by, among other things,
converting at least $48,791.73 of his client's funds either for
his own use or to cover expenditures for other client matters,
committing various trust account violations, and making
misrepresentations to the circuit court about the client's
assets. In re Disciplinary Proceedings Against Voss, 2014 WI
2No. 2012AP931-D & 2014AP2086-D
75, 356 Wis. 2d 382, 850 N.W.2d 190. In 2015, Attorney Voss's
law license was suspended for a period of 60 days, to run
consecutive to the discipline imposed in 2014. The misconduct
at issue in the 2014 case included improprieties in the handling
of matters filed in United States Bankruptcy Courts; failing to
adequately supervise his staff so as to ensure the documents
prepared and filed by staff on behalf of clients conformed in
all respects with applicable law and court rules and were in all
respects accurate; failing to take reasonable steps to ensure
his staff timely informed him and/or clients of case
developments, including the payment status of filing fees; trust
account violations; and failing to provide the Office of Lawyer
Regulation (OLR) with a copy of his trust account transaction
register for the period requested of him by the OLR. In re
Disciplinary Proceedings Against Voss, 2015 WI 104, 365
Wis. 2d 442, 871 N.W.2d 859.
¶4 Attorney Voss filed a petition for the reinstatement
of his license to practice law in March 2016. The OLR filed a
response opposing the Petition for Reinstatement. The OLR said
its investigation revealed that Attorney Voss's conduct since
his suspension has not been exemplary and above reproach and he
cannot be safely recommended to the legal profession, the
courts, and the public as a person fit to be consulted by others
or act in matters of trust or confidence.
¶5 The Honorable John B. Murphy was appointed referee. A
hearing was held in October 2016. Attorney Voss was the only
witness to testify at the hearing.
3
No. 2012AP931-D & 2014AP2086-D
¶6 The referee issued his report and recommendation on
November 1, 2016. The referee found that Attorney Voss had met
some of the reinstatement criteria. The referee found that
Attorney Voss did not practice law during his suspension, kept
up on his educational requirements, and met his financial
obligations as to reimbursement and payment of client claims and
fees. The referee found, however, that Attorney Voss did not
meet some of the other reinstatement requirements.
¶7 The referee said most importantly, Attorney Voss
failed to comply with the Order of Suspension by not properly
notifying his clients, by mail, of his suspension and that the
cessation of his law practice was a result of the suspension.
The referee said while it was true that Attorney Voss did send
letters to his bankruptcy clients, those letters made no mention
of any suspension or attorney disciplinary action. Rather, the
letters simply indicated that Attorney Voss would be "leaving my
Law Practice on September 4, 2014." The referee said when
questioned about the letters at the evidentiary hearing,
Attorney Voss seemed to feel that there was no need to give his
bankruptcy clients a reason for why he was leaving his law
practice since the end result —— the client would need to find a
new attorney —— would be the same whether or not the clients
knew about the suspension. The referee said, "any reasonable
reading of the Voss letters makes clear that Voss was trying to
give his clients the impression that his winding up of his
practice was just a routine matter and was, implicitly, based
upon some 'good' reason such as retirement."
4
No. 2012AP931-D & 2014AP2086-D
¶8 The referee said Attorney Voss seemed to feel that his
failure to mention the suspension in the letters he sent to
clients was merely an oversight because it did not occur to him
to mention it at the time. The referee said the record suggests
otherwise. The referee noted that SCR 22.26(1)(a) is clear as
to the need to establish the nexus between leaving the practice
of law and the suspension. The referee said this is not a rule
where "substantial compliance" is good enough. The referee
opined that failure to use the word "suspension" in the letters
to clients meant that SCR 22.26(1)(a) was not complied with.
¶9 The referee also noted that Attorney Voss testified at
the evidentiary hearing that he became aware that the initial
notification letters that his secretary had to send to the
bankruptcy clients were erroneously sent out by registered mail
rather than certified mail. Once Attorney Voss became aware of
this error, he instructed his secretary to resend the letters.
The referee said since the only way Attorney Voss could have
known of the need to use certified mail was by reading
SCR 22.26(1)(a), Attorney Voss's claim that he was unaware of
the requirement of stating that a suspension was the cause of
his termination of practice was absurd and suggests that
Attorney Voss is being disingenuous in his claim that he was
ignorant of the provisions of the rule.
¶10 The referee went on to note that on September 25,
2014, Attorney Voss signed a document entitled "Winding up of
Practice Richard W. Voss," which was a sworn statement that
Attorney Voss provided to this court at the time of his
5
No. 2012AP931-D & 2014AP2086-D
suspension. The referee noted that in the document, Attorney
Voss attested that, "[a]ll clients with pending matters in which
he was the attorney of record were advised of his inability to
continue to represent them after September 4, 2014, the
effective date of the suspension." The referee said the wording
of this paragraph, along with the language of the letters sent
to the bankruptcy clients, leads to the conclusion that Attorney
Voss deliberately chose to circumvent the requirement of
SCR 22.26(1)(a) by misleading his clients about his suspension.
¶11 Further, the referee said Attorney Voss admitted that
he failed to give any written notification of his suspension and
his leaving the practice of law to any of his public defender
clients. The referee said this, too, was a clear violation of
the requirement of SCR 22.26(1)(a) and "suggests a more
troubling concern regarding Voss's competency to practice law."
The referee noted that Attorney Voss testified at the
evidentiary hearing that public defender clients were somehow
not his clients but were rather clients of the public defender
itself and that Attorney Voss represented the individual clients
by some sort of proxy. The referee said, "this view is
extremely troubling since it indicates that Voss has little
understanding of the attorney-client relationship or how that
relationship is the cornerstone of all legal practice."
¶12 In addition, the referee noted that SCR 22.26(1)(c)
requires all suspended or revoked attorneys to give written
notice to all courts, agencies, and opposing counsel of the
suspension or revocation and of the termination of practice.
6
No. 2012AP931-D & 2014AP2086-D
The referee said Attorney Voss provided no such notification to
any of the required persons or entities, nor did he attempt to
gain the circuit court's approval for withdrawal and
substitution of counsel with respect to his criminal clients.
The referee noted that at the evidentiary hearing, Attorney Voss
said there had been an article about his suspension in the
Rhinelander newspaper. The referee said Attorney Voss seemed to
consider the newspaper article substitute notice sufficient to
meet the requirements of SCR 22.26.
¶13 In addition to the failure to comply with the
requirements of SCR 22.26, the referee also found that Attorney
Voss still lacks an understanding of the need for a proper and
approved system of managing client funds. The referee noted
that as early as 2005 or even sooner, Attorney Voss began having
major problems with the handling of trust accounts, and those
problems continued up to the time of his suspension. The
referee said according to the records of the two cases that led
to his suspensions, and from what Attorney Voss testified to at
the evidentiary hearing, it appeared to the referee that
Attorney Voss has learned very little since 2005 about the
correct handling of client funds through the use of a properly
created trust account, in spite of having taken classes on such
accounts. The referee said there was nothing to suggest that if
Attorney Voss were reinstated to the practice of law, he would
be any more successful in keeping his accounts straight. The
referee said, "in fact, it was unclear, at the hearing, whether
7
No. 2012AP931-D & 2014AP2086-D
Voss even understood the basic accounting and ethical principles
behind maintaining a trust account . . .."
¶14 The referee concluded that Attorney Voss's failure to
fulfill the requirements of SCR 22.26 made him ineligible for
reinstatement. The referee also said because Attorney Voss
still lacked an understanding about the approved handling of
trust accounts, in the event he were to be reinstated, constant
monitoring of his handling of client funds would probably be
required to prevent further ethical violations.
¶15 The referee concluded by saying:
In making this recommendation, I am aware that Voss
cannot go back and correct his violations of
SCR 22.26. That time has passed and Voss's failure to
perform his obligations in 2014 may be a permanent bar
to his reinstatement. Therefore, Voss cannot "safely
be recommended to the legal profession, the courts and
the public as a person fit to be consulted by others
and to represent them and otherwise act in matters of
trust and confidence and in general to aid in the
administration of justice as a member of the bar and
as an officer of the court." SCR 22.29(4)(g).
¶16 Attorney Voss has appealed, arguing that it is
appropriate for this court to grant his petition for the
reinstatement of his license to practice law in Wisconsin.
¶17 Attorney Voss concedes that he did not comply with the
letter of SCR 22.26. However, he says all of the bankruptcy
clients received a certified letter noting the date of the end
of his services and their right to obtain other legal counsel.
He admits that the letter did not inform the bankruptcy clients
that his license to practice law was being suspended. Attorney
Voss says the clients who were represented through the Wisconsin
8
No. 2012AP931-D & 2014AP2086-D
State Public Defender program were all given oral notice by
Attorney Voss and their cases were promptly returned to the
State Public Defender.
¶18 Attorney Voss says while the referee and the OLR
believe that Attorney Voss intentionally omitted explaining to
his clients that the reason he was ceasing the practice of law
was due to suspension:
[T]hat does not change the fact that the suspension
which went in to effect began so soon after the
letters were sent that he could not in any way profit
by omitting the words since they could not remain his
clients after the suspension date and there is no
evidence that anyone continued to be his client after
that date.
Attorney Voss again notes that the top headline of the local
newspaper indicated that he was being suspended so "it can
hardly be argued that failure to include those words would be
advantageous to him. The more likely conclusion is that it was
an oversight."
¶19 With respect to the referee's criticism of Attorney
Voss's trust account practices, Attorney Voss says that none of
his clients lost any money and all of his legal work was done in
a manner that did not result in any dissatisfied clients. He
says, "while the procedures were at times inappropriate, the
results were not harmful to the clients." He also says if he
were reinstated, "by starting out with a new balanced trust
account which will be approved by the Wisconsin State Bar before
any funds are placed in it, the problems of the past should not
be repeated."
9
No. 2012AP931-D & 2014AP2086-D
¶20 The OLR argues that the referee properly found that
Attorney Voss did not meet his burden for the reinstatement of
his Wisconsin law license. The OLR says that although an
attorney's failure to strictly comply with SCR 22.26 may not
per se bar reinstatement, what is most disconcerting about
Attorney Voss's failure to fully comply with the rule is his
failure to comprehend the necessity of following the rule's
requirements. The OLR argues that Attorney Voss's testimony at
the evidentiary hearing displayed a complete lack of
understanding as to what his ethical obligations are as an
attorney. The OLR says although technical violations of
SCR 22.26 may not bar reinstatement, it is Attorney Voss's
complete lack of understanding of his ethical obligations as it
relates to his post-discipline requirements that supports a
denial of his petition for reinstatement. The OLR argues that
Attorney Voss's testimony at the hearing demonstrates that his
apparent belief is that the rules are merely advisory and do not
have to be followed in situations where Attorney Voss feels it
is unnecessary to do so.
¶21 The OLR also argues that the referee appropriately
concluded that Attorney Voss failed to demonstrate that he has a
proper understanding of and attitude toward the standards that
are imposed upon members of the bar and will act in conformity
with those standards. The OLR says that at the time Attorney
Voss learned of his suspension in July of 2014, he had some
$12,000 in his trust account and he did not know to whom
specifically those funds belonged. The OLR says Attorney Voss
10
No. 2012AP931-D & 2014AP2086-D
never sat down and accurately figured out to whom all the money
in the trust account belonged. The OLR says by September of
2014, Attorney Voss had $260 remaining in his trust account and
despite keeping inaccurate records, he simply assumed those
funds belonged to him because none of his clients had asked for
any money to be refunded. The OLR says Attorney Voss's position
that no money belonged to his clients because none of them had
asked for money exemplifies his ignorance of the rules and what
is ethically required of him as an attorney.
¶22 In his reply brief, Attorney Voss reiterates that he
believes that he has demonstrated that he is entitled to the
reinstatement of his Wisconsin law license. He says:
During the period of his practice, from 1976 through
2014, Voss did comply with all of the rules of the
Supreme Court except those rules which he has been
found to have violated. When he was sanctioned he
took steps to correct his behavior . . ..
¶23 This court will affirm a referee's findings of fact
unless they are found to be clearly erroneous. Conclusions of
law are reviewed de novo. See In re Disciplinary Proceedings
Against Davison, 2010 WI 1, ¶19, 322 Wis. 2d 67, 777 N.W.2d 82.
¶24 Supreme Court Rule 22.29(4) provides that a petition
for reinstatement shall show all of the following:
(a) The petitioner desires to have the petitioner's
license reinstated.
(b) The petitioner has not practiced law during the
period of suspension or revocation.
(c) The petitioner has complied fully with the terms
of the order of suspension or revocation and will
11
No. 2012AP931-D & 2014AP2086-D
continue to comply with them until the petitioner's
license is reinstated.
(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.
(e) The petitioner's conduct since the suspension or
revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of and
attitude toward the standards that are imposed upon
members of the bar and will act in conformity with the
standards.
(g) The petitioner can safely be recommended to the
legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.
(h) The petitioner has fully complied with the
requirements set for in SCR 22.26.
(j) The petitioner's proposed use of the license if
reinstated.
(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.
¶25 Supreme Court Rule 22.31(1) provides that an attorney
seeking reinstatement of his or her license has the burden of
demonstrating all of these requirements by clear, satisfactory,
and convincing evidence. We adopt the referee's findings and
conclusions and agree that Attorney Voss has failed to meet his
burden of demonstrating by clear, satisfactory, and convincing
evidence that he fully complied with all of the terms of the
order of suspension. We also agree with the referee that, at
the present time, Attorney Voss cannot safely be recommended to
12
No. 2012AP931-D & 2014AP2086-D
the legal profession, the courts, and the public as a person fit
to be consulted by others and to represent them and otherwise
act in matters of trust and confidence and in general to aid in
the administration of justice as a member of the bar and as an
officer of the court.
¶26 Supreme Court Rule 22.26(1)(a) plainly provides that
an attorney whose license is suspended shall notify all clients
being represented in pending matters "of the
suspension . . . and of the attorney's consequent inability to
act as an attorney following the effective date of the
suspension . . .." Supreme Court Rule 22.26(1)(c) plainly
provides that an attorney whose license is suspended shall
"promptly provide written notification to the court . . . and
the attorney for each party in a matter pending before a
court . . . and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension . . .." By his own admission, Attorney Voss failed
to comply with these rules. However, in the "Winding up of
Practice Richard W. Voss" document dated September 25, 2014,
Attorney Voss averred that all clients with pending matters in
which he was the attorney of record had been advised of his
inability to continue to represent them after the effective date
of the suspension. Thus, it appears that not only did Attorney
Voss fail to comply with the notice requirements of SCR 22.26,
he then untruthfully certified to the OLR that he had fully
complied.
13
No. 2012AP931-D & 2014AP2086-D
¶27 An attorney seeking reinstatement of his or her
license must demonstrate by clear, satisfactory, and convincing
evidence that he has met all of the requirements for
reinstatement. It is clear that Attorney Voss failed to do so.
As the referee pointed out, Attorney Voss cannot go back and
correct his failure to comply with SCR 22.26. Although we are
not suggesting that his failure to comply with that rule should
serve as a permanent bar to his reinstatement, on the record
before us we agree with the referee that his failure to comply
with SCR 22.26, coupled with his rather cavalier attitude that
strict compliance was perhaps not all that important, leads to
the conclusion that at the present time he has not met his
burden of demonstrating that his license to practice law should
be reinstated. We also share the referee's concerns about
whether Attorney Voss understands the proper handling of a
client trust account, although he could potentially correct that
deficiency in the future by attending continuing legal education
programs regarding trust accounts.
¶28 As is our general practice, we find it appropriate to
impose the full costs of this proceeding, $4,034.75 on Attorney
Voss.
¶29 IT IS ORDERED that Richard W. Voss's Petition for
Reinstatement of his license to practice law in Wisconsin is
denied.
¶30 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Richard W. Voss shall pay to the Office of Lawyer
Regulation the costs of this reinstatement proceeding.
14
No. 2012AP931-D & 2014AP2086-D
1