Office of Lawyer Regulation v. John F. Koenig

2015 WI 16
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1523-D
COMPLETE TITLE: Office of Lawyer Regulation,
Complainant,
v.
John F. Koenig,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KOENIG
OPINION FILED: February 17, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 16
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1523-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John F. Koenig, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
FEB 17, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
John F. Koenig,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a report and recommendation of
referee James C. Boll, approving a stipulation filed by the
Office of Lawyer Regulation (OLR) and Attorney John F. Koenig.
In the stipulation, Attorney Koenig admitted one count of
misconduct as alleged in the complaint filed by the OLR. The
parties jointly recommended that, as a sanction for his
misconduct, Attorney Koenig's license to practice law in
Wisconsin be suspended for two years and that he also be
No. 2014AP1523-D
required to make restitution to his former law firm in the
amount of $12,020. Because Attorney Koenig entered into a
comprehensive stipulation, the OLR recommends that no costs be
assessed against him.
¶2 Upon careful review of the matter, we agree with the
referee's findings of fact and conclusions of law. We conclude
that a two-year suspension of Attorney Koenig's license to
practice law is an appropriate sanction for his misconduct. We
further agree that Attorney Koenig should make restitution to
his former law firm in the amount of $12,020. Finally, we agree
that, under the specific facts of this case, it is appropriate
not to assess any costs against Attorney Koenig.
¶3 Attorney Koenig was admitted to practice law in
Wisconsin in 1997 and practices in Milton. He was previously
employed with the law firm of Kohls and Associates LLC. The
firm practices primarily in estate planning and frequently bills
on a flat fee basis. Clients are billed after the work is
completed.
¶4 Attorney Koenig's employment with the firm ended on
August 31, 2013, after the firm discovered that Attorney Koenig
had been embezzling funds from it.
¶5 Attorney Koenig quoted and collected fees from clients
that were larger than what he reported and turned in to the
firm. He would have clients pay him directly for some or all of
the work he performed. He either did not report the money to
the firm or would tell the firm that he charged the client a
lesser amount. In some cases, Attorney Koenig manually created
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No. 2014AP1523-D
an invoice for the client that was for a larger amount than that
stated by the firm in its accounting system. He would keep the
difference between the two invoice amounts.
¶6 Attorney Koenig accepted payments from the firm's
clients without the firm's knowledge and then cashed those
checks at Summit Credit Union where he maintained an account.
He also received money for legal work that he performed for
acquaintances who paid him directly. Attorney Koenig normally
performed such work during regular law firm office hours and he
used the firm's equipment, supplies, and staff. Although a
Kohls firm attorney would have been permitted to perform work
for family or perhaps close friends at no charge, it was
understood by the firm's employees that any legal work performed
by an employee should be reported to the firm. It was also
understood by the firm's employees that all billings for legal
work should be reported to the firm.
¶7 Attorney Koenig received other funds for honorariums
and reimbursements for presenting continuing legal education
programs or public workshops that he also did not turn over to
the firm.
¶8 After the firm learned of Attorney Koenig's actions,
Attorney Koenig requested Summit Credit Union to provide all
checks that were presented but not deposited into his account at
the credit union. He received that information and provided it
to the firm and to the OLR.
¶9 Attorney Koenig admitted accepting a total of $39,920
in payments for legal work from firm clients or other parties
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No. 2014AP1523-D
using firm resources in 37 separate instances without notifying
the firm of such payments. As an offset towards the money he
improperly took, Attorney Koenig forfeited his final paycheck
from the firm in the gross amount of $27,900.
¶10 On July 7, 2014, the OLR filed a complaint against
Attorney Koenig alleging the following count of misconduct:
[Count One] By receiving at least $39,920 in
legal fees for legal work he performed for clients of
his law firm employer or for legal work he performed
for other third parties using the firm's time,
equipment, supplies, and staff without reporting such
fees to the firm, and by falsifying billing statements
that he provided to the firm in order to cover up his
embezzlement, Koenig violated [Supreme Court Rule
(SCR)] 20:8.4(c) and SCR 20:8.4(f).1
¶11 The complaint sought a two-year suspension of Attorney
Koenig's license to practice law in Wisconsin. Attorney Koenig
filed an answer on July 29, 2014, admitting all allegations in
the complaint as true. Referee Boll was appointed on
September 4, 2014.
¶12 On September 30, 2014, the parties entered into a
stipulation whereby Attorney Koenig agreed to the OLR's
recommendation for a two-year suspension of his license. The
stipulation averred that Attorney Koenig fully understood the
misconduct allegations and his right to contest the matter; he
fully understood the ramifications of his entry into the
1
SCR 20:8.4(c) and (f) provide, respectively, that it is
professional misconduct for a lawyer to "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation" or to
"violate a statute, supreme court rule, supreme court order or
supreme court decision regulating the conduct of lawyers."
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No. 2014AP1523-D
stipulation; he fully understood his right to consult with
counsel; and his entry into the stipulation was made knowingly
and voluntarily and was not the result of coercion nor plea-
bargaining.
¶13 On October 30, 2014, the referee issued his final
decision. Based on the stipulation, the referee found by clear,
satisfactory, and convincing evidence that Attorney Koenig
violated the supreme court rules as alleged in Count One of the
OLR's complaint. The referee also recommended that Attorney
Koenig's license to practice law in Wisconsin be suspended for
two years and that he be required to make restitution to his
former law firm in the amount of $12,020.
¶14 On November 19, 2014, the OLR filed a statement of
costs showing costs in the amount of $921.63. The OLR takes the
position that, because Attorney Koenig entered into a
comprehensive stipulation, no costs should be assessed against
him.
¶15 This court will adopt a 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 Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,
660 N.W.2d 686.
¶16 We adopt the referee's findings of fact and
conclusions of law that Attorney Koenig violated the supreme
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No. 2014AP1523-D
court rules as alleged in Count One of the OLR's complaint. We
also agree with the referee that a two-year suspension of
Attorney Koenig's license is an appropriate sanction for the
misconduct at issue here. A two-year suspension is consistent
with the level of discipline imposed in somewhat similar cases.
See, e.g., In re Disciplinary Proceedings Against Cotter,
171 Wis. 2d 373, 491 N.W.2d 475 (1992).
¶17 We also agree with the referee that Attorney Koenig
should be required to make restitution to his former law firm in
the amount of $12,020. We further agree that, based on the
particular circumstances present in this matter, it is
appropriate not to assess any costs against Attorney Koenig.
¶18 IT IS ORDERED that the license of John F. Koenig to
practice law in Wisconsin is suspended for a period of two
years, effective March 19, 2015.
¶19 IT IS FURTHER ORDERED that within 60 days of the date
of this order, John F. Koenig shall make restitution to the law
firm of Kohls and Associates LLC in the amount of $12,020.
¶20 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4m)(c).
¶21 IT IS FURTHER ORDERED that John F. Koenig shall comply
with the provisions of SCR 22.26 concerning the duties of an
attorney whose license to practice law has been suspended.
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No. 2014AP1523-D
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