Office of Lawyer Regulation v. Mark Austin Cross

2023 WI 14SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP1221-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Mark Austin Cross, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Mark Austin Cross,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CROSS
OPINION FILED: February 24, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per curiam.
NOT PARTICIPATING:
ATTORNEYS:
2023 WI 14NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP1221-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Mark Austin Cross, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 24, 2023
v. Sheila T. Reiff
Clerk of Supreme Court
Mark Austin Cross,
Respondent.
ATTORNEY disciplinary proceeding. Attorney’s license
suspended.
¶1 PER CURIAM. This is a reciprocal discipline matter.
On July 20, 2022, the Office of Lawyer Regulation (OLR) filed a
two-count complaint against Attorney Mark Austin Cross. Count
one alleged that by virtue of Attorney Cross’s recent 150-day
license suspension by the Supreme Court of Oregon, Attorney
Cross should be subject to reciprocal discipline in Wisconsin
pursuant to Supreme Court Rule (SCR) 22.22. Count two alleged
that by failing to notify OLR of his discipline in Oregon within
No. 2022AP1221-D
20 days of its effective date, Attorney Cross violated SCR 22.22
(1).1
¶2 On November 2, 2022, this court issued an order
directing Attorney Cross to show cause, in writing, by January
16, 2023, why the imposition of discipline identical to that
imposed in Oregon would be unwarranted, and of the factual basis
for any such claim. Attorney Cross has not responded to this
court’s order. Accordingly, we find it appropriate to impose
discipline reciprocal to that imposed by the Supreme Court of
Oregon.
¶3 Attorney Cross was admitted to practice law in
Wisconsin in 1973. He was admitted to practice law in Oregon in
1979. His Wisconsin law license was suspended in 1983 for
failure to pay State Bar dues and remains suspended. He has no
prior disciplinary history in Wisconsin.
¶4 An attorney disciplinary case in Oregon arose out of
Attorney Cross’s representation of a client in a case where
Attorney Cross was paid a $25,000 retainer. The retainer
agreement required Attorney Cross to refund any unused portion
of the retainer at the conclusion of the matter.
¶5 At the conclusion of the representation, the client
asked Attorney Cross for an accounting of the fees earned and a
SCR 22.22 (1) states: “An attorney on whom public
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discipline of misconduct or a license suspension for medical
incapacity has been imposed by another jurisdiction shall
promptly notify the director of the matter. Failure to furnish
the notice within 20 days of the effective date of the order or
judgment of the other jurisdiction constitutes misconduct.”
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No. 2022AP1221-D
description of the work performed. Attorney Cross failed to
provide that information. Instead, he refunded $10,000 with no
explanation for that amount. The client subsequently sued
Attorney Cross for an additional $10,000 of the original
retainer. Attorney Cross defaulted in that lawsuit, and a money
judgment for $10,000 was entered against him.
¶6 The client subsequently submitted a claim to Oregon’s
Client Security Fund for the $10,000 awarded to the client in
the lawsuit, and the fund paid the client $10,000. That payment
prompted an investigation by Oregon’s Disciplinary Counsel’s
Office. Attorney Cross ignored the investigation, and his
Oregon law license was suspended on March 30, 2021 for his
failure to respond to the investigation.
¶7 On June 21, 2021, the Oregon State Bar initiated a
disciplinary proceeding against Attorney Cross by filing a
formal complaint. Attorney Cross was personally served with the
complaint and notice to answer on August 6, 2021.
¶8 The complaint charged Attorney Cross with failure to
promptly deliver funds a client is entitled to and failure to
render a full accounting at the client’s request; failure to
take reasonable steps to protect a client upon termination of
representation; and failure to respond to inquiries from a
regulatory authority.
¶9 On August 24, 2021, Attorney Cross was served with a
notice of intent to take default judgment. A motion for default
judgment was filed on September 16, 2021. Attorney Cross filed
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no objection, and an order for default was entered on September
22, 2021.
¶10 On January 10, 2022, a Trial Panel Opinion was issued
in the Supreme Court of the State of Oregon ordering the
suspension of Attorney Cross’s license to practice law in Oregon
for 150 days for the alleged violations, effective 30 days from
the date the decision became final, which was March 12, 2022.
It was further ordered that Attorney Cross reimburse the fund
for the $10,000 it paid to the client and that in order to
reinstate his Oregon law license, Attorney Cross must undergo a
formal reinstatement process.
¶11 Supreme Court Rule 22.22 (3) states as follows:
The supreme court shall impose the identical
discipline or license suspension unless one or more of
the following is present:
a) The procedure in the other jurisdiction was so
lacking in notice or opportunity to be heard as to
constitute a deprivation of due process.
b) There was such an infirmity of proof establishing
the misconduct or medical incapacity that the supreme
court could not accept as final the conclusion in
respect to the misconduct or medical incapacity.
c) The misconduct justifies substantially different
discipline in this state.
¶12 Attorney Cross failed to respond to this court’s
November 2, 2022 order to show cause and has not claimed that
any of the defenses found in SCR 22.22 (3) apply.
¶13 The OLR asks this court to suspend Attorney Cross’s
Wisconsin law license for 150 days. It also asks this court to
order Attorney Cross to pay the restitution ordered by the
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No. 2022AP1221-D
Oregon Supreme Court and, despite the fact that the suspension
is less than six months, which is the length of suspension that
triggers a formal reinstatement proceeding in Wisconsin. See SCR
22.28 (3). OLR asks this court to order that Attorney Cross be
required to petition for reinstatement in Wisconsin, as
discipline reciprocal to that imposed by the Oregon Supreme
Court. We agree with OLR that it is appropriate to impose
discipline identical to that imposed by the Supreme Court of
Oregon, including requiring Attorney Cross to pay the $10,000
restitution ordered by the Oregon court and requiring him to
file a formal petition for reinstatement of his Wisconsin law
license.
¶14 IT IS ORDERED that the license of Mark Austin Cross to
practice law in Wisconsin is suspended for a period of 150 days,
effective the date of this order.
¶15 IT IS FURTHER ORDERED that Mark Austin Cross is
ordered to reimburse the Oregon Client Security Fund for its
$10,000 payment to Attorney Cross’s client.
¶16 IT IS FURTHER ORDERED that Mark Austin Cross shall be
required to file a formal petition for reinstatement pursuant to
SCR 22.29 in the event he wishes to reinstate his Wisconsin law
license.
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No. 2022AP1221-D
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