Office of Lawyer Regulation v. David J. Bartz

2015 WI 61SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2918-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David J. Bartz , Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
David J. Bartz,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BARTZ
OPINION FILED: June 25, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 61NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2918-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David J. Bartz , Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUN 25, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
David J. Bartz,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer
Regulation (OLR) and Attorney David J. Bartz. In the
stipulation, Attorney Bartz agrees that he committed five counts
of professional misconduct. He also agrees that a 60-day
suspension of his license to practice law in Wisconsin is an
appropriate sanction, and he agrees to pay restitution to one
client and to the Wisconsin Lawyers' Fund for Client Protection
No. 2014AP2918-D
(Fund). The OLR is not seeking an assessment of costs against
Attorney Bartz.
¶2 After careful review of the matter, we approve the
stipulation. We agree that a 60-day suspension of Attorney
Bartz's license to practice law in Wisconsin is an appropriate
level of discipline. We also agree that Attorney Bartz should
be ordered to pay restitution. Because this matter is being
resolved without the appointment of a referee, we do not impose
any costs on Attorney Bartz.
¶3 Attorney Bartz was admitted to practice law in
Wisconsin in 1989. He practiced in Madison. In 1999, he
received a consensual private reprimand for misconduct involving
his failure to employ the requisite preparation reasonably
necessary for competent representation of a client. Private
Reprimand No. 1999-19.
¶4 In 2011, Attorney Bartz's Wisconsin law license was
suspended for his failure to pay State Bar dues and failure to
file trust account certification. In 2012, he was
administratively suspended for failure to comply with continuing
legal education requirements. On October 16, 2012, this court
temporarily suspended his Wisconsin law license for his willful
failure to cooperate in two OLR investigations. His license
remains suspended.
¶5 On December 18, 2014, the OLR filed a complaint
alleging that Attorney Bartz had engaged in five counts of
misconduct with respect to his representation of P.M. In 2008,
P.M. was injured in a car accident. He was treated by Walnut
2
No. 2014AP2918-D
Grove Chiropractic (Walnut Grove). In November of 2009, P.M.
hired Attorney Bartz to represent him in a personal injury claim
concerning the car accident. P.M. signed a written fee
agreement. Under the terms of the agreement, Attorney Bartz
would collect a 15% contingent fee if the case settled before
trial. The agreement provided that P.M. would be responsible
for costs.
¶6 In April of 2010, Attorney Bartz settled P.M.'s claim
for $5,021. The settlement statement provided that Attorney
Bartz's fee would be $753.15, that P.M. would receive $996.85,
and that Walnut Grove's balance was $3,271. The settlement
statement required Attorney Bartz to hold the funds due to
Walnut Grove in his trust account while he tried to negotiate a
lower payout to Walnut Grove.
¶7 On April 7, 2010, Attorney Bartz deposited the $5,021
settlement check into his trust account. On April 9, 2010,
Attorney Bartz paid P.M. $996.85 and paid himself $755. On
April 14, 2010, Walnut Grove agreed to accept $2,191.80 to
settle their bill. Attorney Bartz never paid Walnut Grove.
¶8 Between April 15 and May 14, 2010, Attorney Bartz
disbursed six trust account checks payable to himself, leaving
no funds in trust attributable to either Walnut Grove or P.M.
In late October of 2011, Attorney Bartz told P.M. that he would
pay Walnut Grove's bill.
¶9 On October 31, 2011, Attorney Bartz's license to
practice law was suspended for failure to pay his annual bar
dues. Attorney Bartz never informed P.M. of his suspension.
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No. 2014AP2918-D
¶10 In 2012, P.M. filed a grievance against Attorney Bartz
with the OLR. The OLR sent Attorney Bartz two letters notifying
him that he was required to respond to the grievance. Attorney
Bartz never responded. As a result, this court temporarily
suspended Attorney Bartz's Wisconsin law license due to his
failure to cooperate with the OLR.
¶11 In September of 2012, the Fund paid P.M. $2,191.80 as
partial reimbursement for the funds Attorney Bartz had
misappropriated.1
¶12 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Bartz's representation of
P.M.:
[Count One] By failing to promptly disburse to
Walnut Grove funds it was entitled to receive, Bartz
violated SCR 20:1.15(d)(1).2
[Count Two] By failing to continue to hold in
trust $3,271 of settlement proceeds belonging to
others, Bartz violated SCR 20:1.15(b)(1).3
1
The amount paid by the Fund represents the amount Walnut
Grove had agreed to accept to settle its account with P.M.
2
SCR 20:1.15(d)(1) provides:
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.
4
No. 2014AP2918-D
[Count Three] By misappropriating funds held in
trust, Bartz violated SCR 20:8.4(c).4
[Count Four] By failing to inform [P.M.] that
his Wisconsin law license had been suspended, Bartz
violated SCR 22.26,5 enforceable via SCR 20:8.4(f).6
[Count Five] By failing to respond to OLR's
written requests for information regarding its
3
SCR 20:1.15(b)(1) provides:
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.
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 22.26 provides, in relevant part:
(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(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.
. . . .
6
SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
5
No. 2014AP2918-D
investigation of the [P.M.] grievance, Bartz violated
SCR 22.03(2) and (6),7 enforceable via SCR 20:8.4(h).8
¶13 On March 3, 2015, the parties filed a stipulation
whereby Attorney Bartz admitted the five counts of misconduct
alleged in the OLR's complaint. In the stipulation, Attorney
Bartz represents that he fully understands the misconduct
allegations, the ramifications should the court impose the
stipulated level of discipline, his right to contest the matter,
7
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.
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.
8
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. 2014AP2918-D
and his right to consult with counsel. He further avers that
his entry into the stipulation is made knowingly and voluntarily
and represents his decision not to contest the misconduct
alleged in the complaint, the level and type of discipline
sought by the OLR's director, or the restitution sought.
¶14 Having carefully considered this matter, we approve
the stipulation and adopt the stipulated facts and legal
conclusions of professional misconduct. We agree that a 60-day
suspension of Attorney Bartz's license to practice law in
Wisconsin is an appropriate level of discipline. Although no
two disciplinary matters are identical, a 60-day suspension is
consistent with sanctions imposed in somewhat similar cases.
See, e.g., In re Disciplinary Proceedings Against Barrock,
2007 WI 24, 299 Wis. 2d 207, 727 N.W.2d 833 (60-day suspension
imposed for six counts of misconduct arising out of attorney's
failure to hold settlement funds subject to third-party claim in
trust account); In re Disciplinary Proceedings Against
Riegleman, 2003 WI 3, 259 Wis. 2d 1, 657 N.W.2d 339 (60-day
suspension imposed for three counts of misconduct arising out of
attorney's failure to notify lienholder of settlement and
unauthorized endorsement of settlement check).
¶15 We also agree that Attorney Bartz should pay $1,081.059
in restitution to P.M. and $2,191.8010 in restitution to the
9
The OLR notes that the amount payable to P.M. includes the
funds which should have been distributable to P.M. after
Attorney Bartz settled the Walnut Grove claim ($1,079.20) and
the fees Attorney Bartz took in excess of the settlement
statement ($1.85).
7
No. 2014AP2918-D
Fund. Because Attorney Bartz entered into a comprehensive
stipulation, thereby obviating the need for the appointment of a
referee and a full disciplinary proceeding, we do not impose
costs in this matter.
¶16 IT IS ORDERED that the license of David J. Bartz to
practice law in Wisconsin is suspended for a period of 60 days,
effective the date of this order.
¶17 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David J. Bartz shall pay restitution as follows:
$1,081.05 to P.M. and $2,191.80 to the Wisconsin Lawyers' Fund
for Client Protection.
¶18 IT IS FURTHER ORDERED that the October 16, 2012
temporary suspension of David J. Bartz'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.11
10
Although both the OLR's complaint and the stipulation
state that Attorney Bartz should be ordered to pay $2,191.30 in
restitution to the Fund, the complaint states that Walnut Grove
agreed to accept $2,191.80 to settle its bill and that the Fund
paid P.M. $2,191.80. As a result, it appears the $2,191.30
figure is a typographical error and Attorney Bartz should be
ordered to pay $2,191.80 in restitution to the Fund.
11
On March 4, 2015, the OLR filed a report and
recommendation stating that Attorney Bartz's law license should
be reinstated from the October 16, 2012 temporary suspension.
The suspension arose out of Attorney Bartz's failure to
cooperate in two grievance investigations. One of those
investigations resulted in the complaint that was filed in this
case. The OLR states that its investigation into the second
grievance is ongoing.
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No. 2014AP2918-D
¶19 IT IS FURTHER ORDERED that, to the extent he has not
already done so, David J. Bartz 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.
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No. 2014AP2918-D
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