Office of Lawyer Regulation v. Andrew J. Bryant

2015 WI 7
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP312-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Andrew J. Bryant, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Andrew J. Bryant,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BRYANT
OPINION FILED: January 28, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 7
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP312-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Andrew J. Bryant, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JAN 28, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Andrew J. Bryant,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This case is before us pursuant to
SCR 22.14(2)1 and SCR 22.17(2)2 on a stipulation between the
1
SCR 22.14(2) states:
The respondent may by answer plead no contest to
allegations of misconduct in the complaint. The
referee shall make a determination of misconduct in
respect to each allegation to which no contest is
pleaded and for which the referee finds an adequate
factual basis in the record. In a subsequent
disciplinary or reinstatement proceeding, it shall be
(continued)
No. 2013AP312-D
parties, Attorney Andrew J. Bryant and the Office of Lawyer
Regulation (OLR). In the stipulation, Attorney Bryant pled no
contest to 37 of 38 counts of misconduct alleged in the OLR's
third amended complaint. The referee issued a report
recommending that the court suspend Attorney Bryant's license to
practice law for three years, order Attorney Bryant to pay
restitution to two clients as set forth herein, and order
Attorney Bryant to pay the full costs of this proceeding, which
total $9,175.05 as of September 2, 2014.
¶2 We approve the recommendations stated in the
stipulation and adopt the stipulated findings of fact and
conclusions of law. We agree that Attorney Bryant's
professional misconduct warrants a three-year suspension of his
Wisconsin law license. We further order that Attorney Bryant
make restitution to M.W. and M.C. as outlined below, and that he
pay the full costs of this disciplinary proceeding.
conclusively presumed that the respondent engaged in
the misconduct determined on the basis of a no contest
plea.
2
SCR 22.17(2) states:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
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No. 2013AP312-D
¶3 Attorney Bryant was admitted to practice law in
Wisconsin in 1992. He most recently practiced as a solo
attorney in Verona.
¶4 In January of 2012, Attorney Bryant received a
consensual private reprimand for misconduct that included lack
of competence, lack of diligence, failure to consult with his
client regarding the means by which the objectives of the
representation were to be pursued, and failure to keep his
client adequately informed. Private Reprimand No. 2012-01.
¶5 On June 24, 2014, this court suspended Attorney
Bryant's license for a period of four months for 15 counts of
misconduct including: practice of law while his license was
administratively suspended; failure to obtain a written conflict
waiver; failure to utilize a written fee agreement; trust
account violations; lack of diligence; failure to provide a
client's file to successor counsel; lack of competence; failure
to make reasonable efforts to expedite litigation; failure to
keep his client reasonably informed; failure to explain matters
sufficiently; knowingly disobeying circuit court scheduling and
sanction orders; conduct intended merely to harass or delay; and
misrepresentation. In re Disciplinary Proceedings Against
Bryant, 2014 WI 43, 354 Wis. 2d 684, 847 N.W.2d 833. We imposed
certain conditions on Attorney Bryant's future reinstatement in
that matter. Id, ¶52. His license remains suspended.
¶6 On February 8, 2013, the OLR filed the disciplinary
complaint giving rise to this decision. The complaint was
amended several times; the third, and final, amended complaint
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No. 2013AP312-D
was filed January 24, 2014, and contained some 255 separately
numbered paragraphs describing 38 counts of misconduct in
connection with Attorney Bryant's representation of seven
clients.
¶7 Before an evidentiary hearing was conducted on the
complaint, Attorney Bryant withdrew his answers and entered into
the stipulation now before the court, in which the parties
agreed to dismiss Count 13 and Attorney Bryant pled no contest
to the remaining 37 counts.
¶8 The referee, James C. Boll, accepted all of the
factual allegations of the complaint as his findings of fact.
Based on those facts, the referee concluded that Attorney Bryant
had engaged in 37 separate acts of professional misconduct.
¶9 Given the volume of the factual findings and legal
conclusions made by the referee, we do not repeat them all here.
It is sufficient to provide the following brief summary of each
client matter followed by summary information concerning the
serious misconduct committed by Attorney Bryant.
Matter of J.N. (Counts 1-2)
¶10 On August 8, 2008, J.N. and her husband filed a joint
petition for divorce in Dane County circuit court. J.N.
retained Attorney Bryant, signed a fee agreement, and paid an
advanced fee. During the representation, Attorney Bryant
engaged in trust account violations by failing to provide J.N.
with an accounting, notice, or statement before disbursing trust
account funds, and failed to respond to the OLR's requests for
information concerning the ensuing grievance.
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No. 2013AP312-D
Matter of M.W. (Counts 3-11)
¶11 In April of 2010, M.W. retained Attorney Bryant to
represent her in a divorce proceeding. Attorney Bryant failed
to provide M.W. with any timely periodic invoices, and disbursed
attorney's fees and trust account funds to himself without
providing M.W. an itemized bill or accounting. He also failed
to communicate with his client, failed to act with diligence in
the representation, failed to provide M.W. with an accounting
after final distribution of the trust property, failed to comply
with a court commissioner's order, which resulted in his client
being held in contempt, and converted client funds to pay
himself attorney's fees. Attorney Bryant further failed to
respond to the OLR's requests for information about the ensuing
grievance, resulting in the temporary suspension of his law
license. Office of Lawyer Regulation v. Andrew J. Bryant,
Sup. Ct. Case No. 2012XX946-D.
Matter of M.C. (Counts 12-15)
¶12 In April of 2009, M.C. hired Attorney Bryant to pursue
claims against her former employer for termination based upon
gender and for denial of employer insurance benefits for long-
term disability benefits. Attorney Bryant failed to take
substantive action in M.C.'s case, and repeatedly failed to
respond to her requests for information about her case. He
further failed to respond to the OLR's requests for information
regarding the ensuing grievance, resulting in the temporary
suspension of his law license. Office of Lawyer Regulation v.
Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D.
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No. 2013AP312-D
Matter of G.G. (Counts 16-24)
¶13 In December of 2008, G.G., a City of Madison employee,
slipped and fell on an icy restaurant stoop, sustaining injury.
In 2009, G.G. hired Attorney Bryant to pursue a worker's
compensation claim and a third-party personal injury lawsuit on
his behalf. Attorney Bryant failed to prepare a written
contingent fee agreement and, other that purportedly hiring an
investigator to pursue evidence, failed to take any other
meaningful action on the matter. He failed to return his
client's calls or otherwise respond to requests for information.
Ultimately, the statute of limitations on both the worker's
compensation and the third-party claims expired.
¶14 In May of 2010, G.G. also hired Attorney Bryant to
represent him in divorce proceedings. Attorney Bryant failed to
prepare a written fee agreement, improperly paid himself $2,000
in attorney's fees from trust account funds, failed to
communicate with G.G. regarding the status of the divorce
proceedings, failed to respond to requests for information, and
engaged in trust account violations. He then failed to respond
to the OLR's requests for investigation relating to the ensuing
grievance, resulting in the temporary suspension of his license
to practice law. Office of Lawyer Regulation v. Andrew Bryant,
Sup. Ct. Case No. 2012XX493-D.
Matter of K.R. (Counts 25-30)
¶15 In March of 2010, K.R. hired Attorney Bryant to pursue
an employment discrimination claim against his former employer.
Attorney Bryant failed to prepare a written contingent fee
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No. 2013AP312-D
agreement, failed to pursue his client's claim, and repeatedly
failed to respond to his client's requests for information. He
further failed to respond to the OLR's requests for information
regarding the ensuing grievance, resulting in the temporary
suspension of his license to practice law. Office of Lawyer
Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D.
Matter of A.C. (Counts 31-34)
¶16 On August 15, 2001, A.C. suffered a work-related
injury at his place of employment and was subsequently
terminated. Attorney Bryant agreed to represent A.C. in his
effort to pursue a discrimination claim with the Equal Rights
Division of the Wisconsin Department of Workforce Development.
¶17 On March 25, 2011, A.C. signed a contingent fee
agreement. After Attorney Bryant filed his notice of
appearance, A.C. never heard from him again. Attorney Bryant
failed to respond to requests of successor counsel to relinquish
A.C.'s file, and then failed to respond to the OLR's requests
for information relating to the ensuing grievance, resulting in
the temporary suspension of Attorney Bryant's law license.
Office of Lawyer Regulation v. Andrew J. Bryant, Sup. Ct. Case
No. 2012XX946-D.
Matter of J.F. (Counts 35-38)
¶18 In December of 2009, J.F. hired Attorney Bryant to
pursue a personal injury claim on J.F.'s behalf. J.F. signed a
contingent fee agreement. Attorney Bryant then repeatedly
failed to communicate with J.F. and took no action on the case.
He also failed to respond to the OLR's requests for information
7
No. 2013AP312-D
relating to the ensuing grievance, resulting in the temporary
suspension of his license to practice law. Office of Lawyer
Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D.
¶19 The stipulation executed by the OLR and Attorney
Bryant provided and the referee concluded that, contrary to
SCR 20:1.1, Attorney Bryant failed to provide competent
representation during his work on the matters of G.G. (Count 16)
and K.R. (Count 25).
¶20 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.3, Attorney Bryant failed to take
meaningful action or advance his client's interests in the
following client matters: M.W. (Count 3), M.C. (Count 12), G.G.
(Count 17), K.R. (Count 26), A.C. (Count 31), and J.F.
(Count 35).
¶21 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.4(a)(3), Attorney Bryant failed to
keep the following clients reasonably informed about the status
of their matter: M.W. (Count 4), G.G. (Count 18), K.R.
(Count 27), A.C. (Count 32), and J.F. (Count 36).
¶22 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.4(a)(4), Attorney Bryant failed to
promptly comply with reasonable requests by the client for
information in the following client matters: M.W. (Count 5),
G.G. (Count 19), K.R. (Count 28), A.C. (Count 32), and J.F.
(Count 37).
¶23 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.4(b), Attorney Bryant failed to
8
No. 2013AP312-D
explain matters to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation
during his work on the matters of M.C. (Count 14) and G.G.
(Count 20).
¶24 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.5(b)(1) and (2), Attorney Bryant
improperly accepted advanced fees without communicating in
writing the basis or rate of the fee and expenses and failed to
communicate in writing the purpose and effect of the advanced
fees received in the matter of G.G. (Count 21).
¶25 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.15(b)(4) and SCR 20:1.15(g)(1),
Attorney Bryant failed to properly hold unearned fees and
advanced payment of fees in trust in the matters of J.N.
(Count 1), M.W. (Count 6), and G.G. (Count 23).
¶26 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.15(d)(1) and (2), Attorney Bryant
converted client funds to pay himself attorney's fees during his
work on the M.W. matter (Counts 7 and 8).
¶27 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.16(d), Attorney Bryant failed to
respond to multiple written requests to relinquish a client file
during his representation of A.C. (Count 33).
¶28 The stipulation provided and the referee concluded
that, contrary to SCR 20:1.5(c), Attorney Bryant failed to enter
into a written contingent fee agreement during his work on the
matters of G.G. (Count 22) and K.R. (Count 29).
9
No. 2013AP312-D
¶29 The stipulation provided and the referee concluded
that by knowingly and without justification disobeying a court's
order, resulting in the issuance of a court order finding his
client in contempt, Attorney Bryant violated SCR 20:3.4(c)
during his work on the M.W. matter (Count 9).
¶30 The stipulation provided and the referee concluded
that, contrary to SCR 20:8.4(c), Attorney Bryant engaged in
dishonesty, fraud, deceit, or misrepresentation during his work
on the M.W. matter (Count 10).
¶31 The stipulation provided and the referee concluded
that, contrary to SCR 22.03(2), SCR 22.03(6), and SCR 20:8.4(h),
Attorney Bryant failed to provide relevant information to the
OLR in a timely fashion, and failed to answer questions fully or
otherwise provide information requested by the OLR, in the
following matters: J.N. (Count 2), M.W. (Count 11), M.C.
(Count 15), G.G. (Count 24), K.R. (Count 30), A.C. (Count 34),
and J.F. (Count 38).
¶32 Attorney Bryant pled no contest to the above counts of
misconduct. The parties' stipulation recited that Attorney
Bryant understands the allegations of the complaint, that he
enters the stipulation freely, knowingly, and voluntarily, and
that he understands that he had a right to contest the matters
and consult with and be represented by counsel. Attorney Bryant
also explicitly stated in the stipulation that his mental
health/medical issues are not a defense to the alleged
misconduct.
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No. 2013AP312-D
¶33 The parties stipulated that a three-year suspension
was appropriate discipline. The referee agreed, and also
recommended restitution as stipulated by the parties, noting
that Attorney Bryant did not dispute that he owed restitution to
these clients.3 The referee further recommended the imposition
of full costs, which total $9,175.05 as of September 2, 2014.
¶34 Because no appeal was filed from the referee's report
and recommendation, our review proceeds pursuant to
SCR 22.17(2). When reviewing a report and recommendation in an
attorney disciplinary proceeding, we affirm a referee's findings
of fact unless they are found to be clearly erroneous. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5,
305 Wis. 2d 71, 740 N.W.2d 125. We review the referee's
conclusions of law, however, on a de novo basis. Id. Finally,
we determine the appropriate level of discipline given the
particular facts of each case, independent of the referee's
recommendation, but benefitting from it. In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,
660 N.W.2d 686.
3
In the OLR's restitution statement filed September 3,
2014, the OLR advises the court that it does not seek
restitution in the matters of J.N., K.R., A.C., and J.F. because
there was no fee dispute and/or reasonably ascertainable
restitution amount, explains the reasons for the reduced request
for restitution in the matter of M.W., and explains that it
withdraws its request for restitution to G.G. and to the
Wisconsin Lawyers' Fund for Client Protection.
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No. 2013AP312-D
¶35 We adopt the findings of fact and conclusions of law
to which the parties have stipulated and as adopted by the
referee.
¶36 Turning to the sanction, we accept the parties'
stipulation that a three-year suspension is an appropriate level
of discipline in light of the facts of this case. Given the
presence of prior discipline, the number of counts of
misconduct, the number of clients affected by the misconduct,
and the seriousness of the misconduct, a lengthy suspension is
clearly required.
¶37 Because this case presents no extraordinary
circumstances and no objection to costs has been filed, we
further determine that Attorney Bryant should be required to pay
the full costs of this matter. See SCR 22.24(1m) (supreme
court's general policy upon a finding of misconduct is to impose
all costs upon the respondent attorney).
¶38 Finally, we agree that Attorney Bryant should be
ordered to pay restitution as stipulated by the parties:
$10,312.20 to M.W. and $5,000 to M.C.
¶39 IT IS ORDERED that the license of Andrew J. Bryant to
practice law in Wisconsin is suspended for a period of three
years, effective the date of this order.
¶40 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Andrew J. Bryant shall pay to the Office of
Lawyer Regulation the imposed costs of this proceeding.
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No. 2013AP312-D
¶41 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Andrew J. Bryant shall pay $10,312.20 to M.W. and
$5,000 to M.C. as restitution.
¶42 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶43 IT IS FURTHER ORDERED that Andrew J. Bryant 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.
¶44 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
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No. 2013AP312-D
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