Office of Lawyer Regulation v. Jeffrey L. Elverman

2014 WI 15
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1400-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Jeffrey L. Elverman, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Jeffrey L. Elverman,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST ELVERMAN
OPINION FILED: March 25, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by Jeffrey
L. Elverman, Genoa City.
For the Office of Lawyer Regulation, there was a brief by
Anne MacArthur and Anne MacArthur Law, LLC, Madison.
2014 WI 15
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1400-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Jeffrey L. Elverman, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAR 25, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Jeffrey L. Elverman,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney Jeffrey L. Elverman appeals
from that portion of a referee's report recommending that his
license to practice law be revoked effective the date of this
court's order rather than making revocation retroactive to the
date that his prior nine-month license suspension ended. He
also appeals the amount of restitution recommended by the
referee.
No. 2011AP1400-D
¶2 Upon careful review of this matter, we agree with the
referee that given the seriousness of Attorney Elverman's
misconduct, the revocation of his license to practice law in
Wisconsin should not be retroactive. We agree with Attorney
Elverman and the Office of Lawyer Regulation (OLR) that
restitution should be ordered in the same amount and upon the
same terms as that ordered by the circuit court in Attorney
Elverman's underlying criminal case. Finally, we find it
appropriate to assess the full costs of this proceeding, which
are $19,558.08 as of September 5, 2013, against Attorney
Elverman.
¶3 Attorney Elverman was admitted to practice law in
Wisconsin in 1986. On May 12, 2008, Attorney Elverman's license
was suspended for nine months for failure to report co-trustee
fees he received as income in his state and federal income tax
returns for the years 1999 to 2003. In re Disciplinary
Proceedings Against Elverman, 2008 WI 28, 308 Wis. 2d 524, 746
N.W.2d 793. The nine-month suspension would have ended
February 13, 2009. Attorney Elverman's license remains
suspended.
¶4 The most serious counts of misconduct alleged in the
OLR's amended complaint, which was filed on July 10, 2012, arose
out of Attorney Elverman's representation of D.P. Attorney
Elverman was introduced to D.P., who was 82 years old, in 2000,
when he was a partner at Quarles & Brady. D.P.'s investment
advisor introduced them. D.P., a widow, wanted Attorney
Elverman to prepare an estate plan for her. She had assets of
2
No. 2011AP1400-D
between $1,000,000 and $2,000,000, including substantial liquid
assets.
¶5 In May 2000 D.P. signed various estate planning
documents prepared by Attorney Elverman, including a durable
financial power of attorney and a durable power of attorney for
health care. The financial advisor, Leonard Campbell, was
D.P.'s agent under both powers of attorney, with Attorney
Elverman designated as successor agent.
¶6 Attorney Elverman also drafted a will for D.P., along
with a revocable trust. The trust established terms for its
administration during D.P.'s lifetime and provided for the
creation of the D.P. Foundation (the Foundation) upon her death.
¶7 D.P. was the initial trustee of the revocable trust.
Campbell was the successor trustee, and Attorney Elverman was
the successor trustee if Campbell did not act or ceased to act.
Campbell was the initial trustee for the Foundation, and
Attorney Elverman was the successor trustee.
¶8 By late 2000, D.P.'s mental acuity began to decline as
a result of Alzheimer's disease. During 2001, Campbell resigned
as D.P.'s agent under her powers of attorney, and Attorney
Elverman became D.P.'s agent for both finances and health care.
¶9 In February 2001 one of D.P.'s physicians wrote to
another of her doctors noting he had spoken with Attorney
Elverman and that D.P.'s ability to think cognitively was
substantially impaired. Around this time, Attorney Elverman
contracted with Professional Organizers Unlimited to assist D.P.
with her activities of daily living. The principal of
3
No. 2011AP1400-D
Professional Organizers Unlimited, Marion Whelpley, continued to
provide services to D.P. through 2008.
¶10 By March of 2003, D.P.'s Alzheimer's disease had
progressed to the stage that she was no longer competent to
manage her personal or financial affairs. On March 24, 2003, at
Attorney Elverman's request, Dr. Brian Hirano, another of D.P.'s
physicians, provided Attorney Elverman with a certification of
D.P.'s incapacitation which was sent by facsimile to Attorney
Elverman's office at Quarles & Brady. In July and September
2003, Dr. Hirano sent letters to D.P. explaining that her memory
would continue to decline over time. Attorney Elverman received
copies of those letters.
¶11 In or about August of 2003, Attorney Elverman drafted
an amendment to D.P.'s revocable trust making him trustee of her
trust and the Foundation. This amendment gave him the power to
appoint a successor trustee of each entity and gave him complete
control over the disposition of D.P.'s estate during her life
and after her death. D.P. signed the amendment on August 14,
2003, several months after Dr. Hirano had provided Attorney
Elverman with a certification of D.P.'s incapacitation.
¶12 In or about September of 2004, concerns were raised at
Quarles & Brady as the result of allegations that Attorney
Elverman's time records and billing were false. Upon review of
the firm's records, Quarles & Brady learned that Attorney
Elverman had received $230,000 in co-trustee fees from the
Donald W. Kastner Trusts that he had not turned over to Quarles
& Brady. Attorney Elverman also failed to originally report the
4
No. 2011AP1400-D
receipt of the Kastner trustee income on his tax returns. This
failure formed the basis for the 2008 license suspension.
¶13 After conducting an inquiry in the Kastner matter,
Quarles & Brady asked that Attorney Elverman provide a sworn
statement certifying all circumstances where he had acted or was
acting as a trustee. In the statement he submitted to Quarles &
Brady in October 2004, Attorney Elverman failed to disclose that
he was acting as D.P.'s trustee.
¶14 Between December 12, 2001, and September 23, 2004,
Attorney Elverman was paid at least $604,000 by D.P.,
purportedly for performing 30 to 35 hours per week of personal
services that he billed at $150 an hour.
¶15 In November 2004, after leaving Quarles & Brady,
Attorney Elverman joined Michael Best & Friedrich. He failed to
disclose his relationship with D.P. to Michael Best & Friedrich,
even though the firm required new members to identify all
existing client relationships. Attorney Elverman's employment
at Michael Best & Friedrich was terminated when the firm became
aware of the disciplinary proceedings against him involving the
Kastner trusts.
¶16 In June 2008, following his suspension, Attorney
Elverman filed his SCR 22.261 affidavit with the OLR, but he
failed to list D.P. as one of his clients.
1
SCR 22.26 states, 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:
5
No. 2011AP1400-D
¶17 After his license was suspended, Attorney Elverman
resigned as D.P.'s agent under her durable financial power of
attorney and appointed Dwayne Johnson, an accountant he knew, as
the new agent. Attorney Elverman also resigned as trustee of
D.P.'s revocable trust and of the Foundation and appointed
Johnson trustee of each entity. Attorney Elverman and Johnson
had an agreement whereby Johnson would resign and reappoint
Attorney Elverman to again be D.P.'s agent under the durable
powers of attorney, and trustee of D.P.'s revocable trust and of
the Foundation, when Attorney Elverman's license to practice law
was reinstated.
¶18 In July of 2008, while D.P. was living in an assisted
living facility, a social worker raised concerns about the
enforceability of D.P.'s durable power of attorney for health
care because both Campbell and Attorney Elverman had witnessed
the document, making it invalid under Wisconsin law. In
September 2008 the social worker filed a petition for the
appointment of a guardian of D.P.'s person and estate.
. . . .
(e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing . . . :
. . . .
(iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.
6
No. 2011AP1400-D
¶19 In October 2008 in response to the guardianship
petition, Attorney Elverman executed a document attempting to
withdraw his resignation as D.P.'s financial power of attorney.
He also filed an objection to the guardianship petition and
filed his own guardianship petition asking that he be named the
guardian of D.P.'s person and estate.
¶20 On November 13, 2008, Milwaukee County Circuit Judge
John DiMotto issued an order appointing Supportive Community
Services (SCS) as D.P.'s temporary guardian. Judge DiMotto held
that Attorney Elverman was not an interested person in the
guardianship proceeding and thus had no standing in the matter
since he had resigned as D.P.'s financial power of attorney and
because D.P.'s health care power of attorney was invalid. Judge
DiMotto held that Attorney Elverman's attempt to withdraw his
resignation as D.P.'s financial power of attorney was improper,
as was Attorney Elverman's attempt to appoint Johnson as D.P.'s
agent under her durable financial power of attorney, because
Attorney Elverman lost the power to appoint a successor agent
when he resigned as D.P.'s agent.
¶21 On December 3, 2008, upon SCS's petition, Milwaukee
County Probate Court Commissioner Patrice A. Baker determined
that Attorney Elverman's attempt to resign as trustee of D.P.'s
trust and appoint Johnson in his place was ineffective because
Attorney Elverman's resignation only referred to the trustee
appointment under the article of the trust creating the
Foundation upon D.P.'s death and did not refer to the article
governing appointment of the trustee of the trust administered
7
No. 2011AP1400-D
during D.P.'s lifetime. The court commissioner ordered that
Attorney Elverman be removed as trustee of the trust, vacated
his appointment of Johnson as trustee of the Foundation, and
appointed SCS the trustee of each entity.
¶22 On December 5, 2008, Judge DiMotto issued an order
appointing SCS as D.P.'s permanent guardian, after finding that
Attorney Elverman had "engaged in questionable conduct as it
relates to the ward, including not making her a client of
Michael Best & Friedrich when he became a partner in the firm."
Judge DiMotto ordered SCS, as D.P.'s guardian, to obtain
accountings from Attorney Elverman and Johnson, finding it was
"essential that Jeffrey L. Elverman account to a third party for
his actions as trustee/agent for the ward." At Judge DiMotto's
direction, SCS began an investigation into Attorney Elverman's
conduct in relation to D.P.
¶23 A forensic accountant retained by SCS reviewed
Attorney Elverman's billing records at Quarles & Brady from
January 2002 through September 2004, the last month he billed
time at Quarles & Brady before his departure. During all of the
time Attorney Elverman was allegedly performing services for
D.P., he was employed on a full-time basis as an equity partner
at Quarles & Brady. Attorney Elverman never disclosed to
Quarles & Brady that he was performing services for D.P., nor
did he report his receipt of income from her to the firm.
¶24 Adding the hours he billed at Quarles & Brady to the
hours he claimed to have worked for D.P., Attorney Elverman
would have worked 75 hours a week, 52 weeks a year, in 2002; 74
8
No. 2011AP1400-D
hours a week, 52 weeks a year, in 2003; and 54 hours a week in
2004. While at Quarles & Brady, Attorney Elverman prepared, or
had prepared at his direction, four fake invoices purportedly on
behalf of Quarles & Brady, representing legal work he had done
on D.P.'s behalf, which D.P. paid. The fake invoices were
generated on Quarles & Brady computers but were prepared outside
of the usual billing system employed by the firm. Two checks
drawn on D.P.'s account correspond to the dates and amounts of
the fake invoices and were made payable to, and endorsed by,
Attorney Elverman. Two other checks drawn on D.P.'s account
correspond to the dates and amounts of the fake invoices, but
the payee is unknown. One of the two checks is in the exact
amount of a deposit into Attorney Elverman's checking account
that occurred within two weeks of the date of one of the fake
invoices.
¶25 As a result of Quarles & Brady's inquiry into Attorney
Elverman's billing practices, Quarles & Brady determined it had
not received any payment regarding the fake invoices, nor were
there any time entries in its billing system matching them.
Quarles & Brady's further review of Attorney Elverman's time
entries in the firm's billing system indicated that for certain
days, the aggregate of the hours logged on the system for
Attorney Elverman's work for the firm, plus the hours indicated
in the fake invoices, totaled more than 20 hours in a day and in
one case more than 24 hours in a day.
¶26 Attorney Elverman did not include any of the income he
received from D.P. on the state and federal tax returns he
9
No. 2011AP1400-D
originally filed in 2001, 2002, or 2003. He underreported
income he received from D.P. on his original state and federal
tax returns filed in 2004.
¶27 In September of 2009, the OLR's investigative
committee asked that Attorney Elverman provide copies of his
income tax returns for 2001 through 2004, or provide an
authorization for the OLR to obtain the returns from the
Department of Revenue. Attorney Elverman failed to respond to
this request until March of 2010, and then claimed there was no
Department of Revenue form authorizing release of tax returns.
The OLR ultimately obtained copies of the returns by subpoenaing
Attorney Elverman's accountant.
¶28 On December 6, 2010, Attorney Elverman was charged
with violating Wis. Stat. § 943.20(1)(a), theft of movable
property in excess of $10,000, a Class G felony, in Milwaukee
County circuit court as a result of his conduct regarding D.P.
¶29 The OLR filed a complaint against Attorney Elverman on
June 17, 2011. Attorney Elverman filed a motion asking that the
OLR proceedings be stayed pending disposition of the criminal
case. This court granted the motion on October 25, 2011. On
December 15, 2011, a jury found Attorney Elverman guilty of
theft of movable property in excess of $10,000. A judgment of
conviction was entered against him on March 13, 2012. A
sentence consisting of five years of initial confinement and
five years of extended supervision was imposed and stayed and
Attorney Elverman was placed on probation for five years, with
seven months in the House of Corrections with work release
10
No. 2011AP1400-D
privileges. Attorney Elverman was ordered to make restitution
in the amount of $325,000, less payments already made.
Specifically, the Department of Corrections was ordered to
facilitate payment to the victim2 in the amount of $1,500 per
month during 2012, $2,000 per month during 2013, and $3,000 per
month during 2014, until paid in full.
¶30 James J. Winiarski was appointed referee in the
matter. On July 10, 2012, the OLR filed an amended complaint.
The amended complaint alleged the following counts of misconduct
with respect to Attorney Elverman's dealings with D.P.:
[COUNT ONE] By using his position of trust as
[D.P.'s] lawyer, trustee, and financial power of
attorney to take at least $604,000 from her between
December 2001 through September 2004, [Attorney]
Elverman engaged in conduct involving dishonesty,
fraud, deceit or misrepresentation, in violation of
SCR 20:8.4(c).3
[COUNT TWO] By collecting fees totaling at least
$604,000 from [D.P.] from December 2001 to September
2004, for which he has inadequate substantiating
records, [Attorney] Elverman charged an unreasonable
fee, in violation of former SCR 20:1.5(a), effective
prior to July 1, 2007.4
2
The record indicates that D.P. is now deceased.
3
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
4
Former SCR 20:1.5(a) (effective through June 30, 2007)
provided as follows:
A lawyer's fee shall be reasonable. The factors
to be considered in determining the reasonableness of
a fee include the following:
11
No. 2011AP1400-D
[COUNT THREE] By concealing from [Quarles &
Brady (Q&B)] the fees he earned from [D.P.], and by
concealing from Q&B and [Michael Best & Friedrich] his
position as trustee for [D.P.'s] Trust, [Attorney]
Elverman violated a standard of conduct set forth by
the Wisconsin Supreme Court in Disciplinary
Proceedings Against Shea, 190 Wis. 2d 560, 527
5
N.W.2d 314 (1995), actionable via SCR 20:8.4(f).
[COUNT FOUR] By failing to report on his federal
and state income tax returns for 2001, 2002, and 2003
any of the income he received from [D.P.], and by
underreporting the income he received from [D.P.] on
his original federal and state income tax returns for
2004, [Attorney] Elverman violated a standard of
conduct set forth by the Wisconsin Supreme Court in
Disciplinary Proceedings Against Owens, 172
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results
obtained;
(5) the time limitations imposed by the client
or by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
5
SCR 20:8.4(f) states 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; . . . ."
12
No. 2011AP1400-D
Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992), actionable
via SCR 20:8.4(f).
[COUNT FIVE] By failing to promptly comply with
OLR's Investigative District Committee's request for
his tax returns or an authorization to obtain copies
of them, [Attorney] Elverman failed to cooperate with
OLR's investigation, in violation of SCR [22.03(6)],6
actionable via SCR 20:8.4(h).7
¶31 The amended complaint also alleged that on May 30,
2011, Attorney Elverman was arrested as the result of a domestic
violence incident that occurred at the home of H.H., where
Attorney Elverman was living with H.H. and her two minor
children, who were both home at the time of the incident. On
July 7, 2011, Attorney Elverman was charged with disorderly
conduct, a Class B misdemeanor. He entered a guilty plea to
that charge on July 15, 2011.
¶32 Attorney Elverman failed to report his conviction to
the OLR and the clerk of this court within five days of the
entry of judgment of conviction. On July 26, 2011, after
learning of Attorney Elverman's disorderly conduct conviction,
the OLR notified Attorney Elverman by first-class mail to his
last known address that the OLR was investigating his criminal
6
SCR 22.03(6) provides as follows: "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."
7
SCR 20:8.4(h) states 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); . . . ."
13
No. 2011AP1400-D
conduct in the disorderly conduct case and Attorney Elverman's
failure to report the conviction, and that his response to the
OLR's investigation was required by August 18, 2011. Attorney
Elverman failed to respond to the OLR's letter.
¶33 On August 23, 2011, the OLR sent Attorney Elverman a
second letter informing him that failure to timely respond to
its investigation constituted misconduct and giving him until
September 2, 2011, to respond. Attorney Elverman finally
responded on September 7, 2011, but the OLR concluded that his
response failed to fully and fairly disclose all facts and
circumstances pertaining to the alleged misconduct.
¶34 The OLR's amended complaint alleged the following
counts of misconduct with respect to the disorderly conduct
conviction:
[COUNT SIX] By engaging in conduct resulting in
his conviction for disorderly conduct in a domestic
violence situation, [Attorney] Elverman engaged in
criminal conduct that reflects adversely on his
fitness as a lawyer in violation of SCR 20:8.4(b).8
[COUNT SEVEN] By failing to notify OLR and the
Clerk of the Supreme Court of his conviction for
disorderly conduct within five (5) days of its entry,
[Attorney] Elverman violated SCR 21.15,9 enforced via
SCR 20:8.4(f).
8
SCR 20:8.4(b) states it is professional misconduct for a
lawyer to "commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects; . . . ."
9
SCR 21.15 provides, in relevant part, as follows:
(5) An attorney found guilty or convicted of any
crime on or after July 1, 2002, shall notify in
writing the office of lawyer regulation and the clerk
14
No. 2011AP1400-D
[COUNT EIGHT] By failing to timely respond to
OLR's investigation in the criminal [disorderly
conduct] matter within 20 days of receiving notice of
the investigation, and by failing to fully and fairly
disclose all facts and circumstances pertaining to it
when he did respond, [Attorney] Elverman violated
SCR 22.03(2),10 enforced via SCR 20:8.4(h).
¶35 On February 12, 2013, the parties filed a stipulation
whereby Attorney Elverman withdrew his answer to the amended
complaint and pled no contest to all eight counts alleged in the
OLR's amended complaint. Attorney Elverman and the OLR jointly
recommended that the sanction in this matter be a license
revocation imposed retroactively to February 13, 2009, so as to
run consecutive to the prior nine-month suspension. The
stipulation says, "The disciplinary conduct at issue in this
of the Supreme Court within 5 days after the finding
or conviction, whichever first occurs. The notice
shall include the identity of the attorney, the date
of finding or conviction, the offenses, and the
jurisdiction. An attorney's failure to notify the
office of lawyer regulation and clerk of the supreme
court of being found guilty or his or her conviction
is misconduct.
10
SCR 22.03(2) states:
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.
15
No. 2011AP1400-D
case occurred during roughly the same period of time as the
matters addressed in the prior disciplinary matter, and occurred
prior to the imposition of discipline in the previous
disciplinary case." The parties also jointly recommended that
restitution be imposed "as ordered by the Milwaukee County
Criminal Court . . . ."
¶36 The referee filed his report and recommendation on
April 3, 2013. The referee found that Attorney Elverman engaged
in the eight counts of misconduct alleged in the OLR's amended
complaint. While both the OLR and Attorney Elverman recommended
license revocation retroactive to February 13, 2009, the referee
found the misconduct serious enough to recommend that the
starting date for the revocation be the date this court enters
the order of revocation. The referee explained:
In this case, [Attorney] Elverman stole money
from a client. His attempts to cover up his thefts
were well planned and occurred over a significant
period of time. He deceived two law firms by failing
to report income and by using fake invoices. He
failed to report taxable income.
Most of the misconduct in this case occurred
after the misconduct in the previous disciplinary
case. . . . While Q&B was investigating [Attorney]
Elverman's conduct in the Kastner
case . . . [Attorney] Elverman was actively involved
in covering up his conduct in this disciplinary case.
I realize the Wisconsin Supreme Court customarily
considers retroactive commencement of the date for
license revocation if the attorney has not been
licensed to practice since an earlier date. However,
given the extreme seriousness and the distinctly
separate and consecutive misconduct in this case, I do
not believe [Attorney] Elverman should be given any
credit for the time since his license suspension of
16
No. 2011AP1400-D
nine months which commenced May 12, 2008, nor do I
believe [Attorney] Elverman should be given credit for
the fact that he has not practiced law for an extended
period of time.
¶37 Turning to the issue of restitution, the referee said:
The pleadings and filings in this case do not
disclose to me what, if any, restitution was ordered
by the criminal court upon [Attorney] Elverman's
convictions. In any case, the factual agreement
between the parties shows that [Attorney] Elverman was
paid at least $604,000 by [D.P.] He should be ordered
to make restitution of that full amount.
¶38 Attorney Elverman appeals, arguing that there are
compelling reasons to retroactively revoke his license to
practice law so that the revocation runs consecutive to his
prior license suspension. Attorney Elverman argues that his
license has already remained suspended well beyond the period of
the nine-month suspension previously imposed. He notes that he
filed a petition for reinstatement from the nine-month license
suspension before the OLR filed its complaint in this case, but
once the complaint was filed he withdrew the reinstatement
petition pending resolution of all issues presented in this
matter.
¶39 Attorney Elverman says that during the period of his
suspension he has engaged in numerous professional, civic, and
charitable events; he has taught numerous seminars on behalf of
the State Bar of Wisconsin; and he participated on numerous
charitable boards. He says:
[I]t is fair to say that becoming an equity partner at
two major law firms requires not only intellectual
capacity, but also sound ethical and moral character.
Many smart and worthy attorneys saw [Attorney]
17
No. 2011AP1400-D
Elverman fit to become one of their partners. This
was not a mistake. Moreover, [Attorney] Elverman has
represented some of the most influential and wealthy
individuals and families of this State, including CEOs
of major private and publicly traded companies. This
did not happen by accident——it resulted from an
exceptional reputation and character.
Unfortunately, the time period between 2001-2004
did not reflect [Attorney] Elverman's true character.
A retroactive sanction will assure that [Attorney]
Elverman's second chance will be successful and that
he will prove once again that he is worthy of being a
member of the legal profession and is a productive and
valuable member of society.
¶40 Attorney Elverman also argues that there is no factual
basis for the referee requiring him to pay restitution of
$604,000. He notes that the stipulation he entered into with
the OLR provided that the restitution obligation be as ordered
by the Milwaukee County criminal court.
¶41 The OLR agrees with Attorney Elverman that the
revocation should be made retroactive to the date Attorney
Elverman's nine-month license suspension would have ended. The
OLR says the facts of this case are similar to those presented
in In re Disciplinary Proceedings Against Cooper, 2013 WI 55,
348 Wis. 2d 266, 833 N.W.2d 88. In Cooper this court found that
the misconduct at issue in two cases involving the attorney
occurred during roughly the same timeframe. Accordingly, the
new license suspension was made retroactive.
¶42 With respect to the issue of restitution, the OLR
notes that the record before the referee did not disclose the
amount of restitution that was ordered by the criminal court.
The OLR subsequently moved to supplement the record to include a
18
No. 2011AP1400-D
copy of the judgment of conviction which indicates that
restitution in the amount of $325,000, less payments already
made, was ordered.
¶43 A referee's findings of fact are affirmed unless
clearly erroneously. 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.
¶44 With the exception of the amount of restitution
ordered, there is no showing that any of the referee's findings
of fact are erroneous. Accordingly, we adopt them. We also
agree with the referee's conclusions of law that Attorney
Elverman violated all of the supreme court rules set forth
above.
¶45 Revocation of an attorney's license to practice law is
the most severe sanction this court can impose. It is reserved
for the most egregious cases. We agree that in this case, no
sanction short of revocation would be sufficient to protect the
public, achieve deterrence, and impress upon Attorney Elverman
the seriousness of his misconduct.
¶46 We agree with the referee's recommendation that the
revocation of Attorney Elverman's license not be made
retroactive. Although Attorney Elverman's actual theft of
D.P.'s money may have ended in 2004, it appears that he
continued to take actions to the detriment of her estate past
19
No. 2011AP1400-D
the time that his license to practice law was suspended in 2008.
In addition, both Attorney Elverman and the OLR disregard the
fact that in July of 2011 Attorney Elverman was convicted of
disorderly conduct as the result of a domestic violence incident
that occurred in May 2011. Attorney Elverman's failure to
timely report that conviction to this court, and his failure to
cooperate with the OLR's investigation into that incident, is
yet another indication of Attorney Elverman's true character.
This fact situation is readily distinguishable from the one
presented in Cooper. The misconduct at issue in this case is
extremely serious. Attorney Elverman took advantage of an
elderly woman who was suffering from Alzheimer's disease and
stole a large amount of money from her. Accordingly, we decline
the parties' request to make revocation of his license
retroactive.
¶47 Turning to the issue of restitution, it is unfortunate
that the referee was not provided with a copy of the judgment of
conviction, which would have disclosed the amount of restitution
ordered by the circuit court. The record has now been
supplemented to include a copy of the judgment of conviction.
We find it appropriate to order Attorney Elverman to pay
restitution in the amount of $325,000, less payments already
made. Finally, we find it appropriate to require Attorney
Elverman to pay the full costs of this proceeding.
¶48 IT IS ORDERED that the license of Jeffrey L. Elverman
to practice law in Wisconsin is revoked, effective the date of
this order.
20
No. 2011AP1400-D
¶49 IT IS FURTHER ORDERED that Jeffrey L. Elverman be
required to pay restitution in the amount and under the terms
ordered by the Milwaukee County criminal court in State v.
Elverman, No. 2010-CF-5940.
¶50 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Jeffrey L. Elverman shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶51 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Jeffrey L. Elverman shall comply with the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been revoked.
21
No. 2011AP1400-D
1