Office of Lawyer Regulation v. Patrick M. Cooper

2018 WI 22
SUPREME COURT OF WISCONSIN
CASE NO.: 2005AP2744-D & 2012AP2334-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Patrick M. Cooper , Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Patrick M. Cooper,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST COOPER
OPINION FILED: March 30, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 22
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2005AP2744-D & 2012AP2334-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Patrick M. Cooper, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 30, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Patrick M. Cooper,
Respondent.
ATTORNEY disciplinary proceeding. Reinstatement granted,
with conditions.
¶1 PER CURIAM. We review, pursuant to Supreme Court
Rule (SCR) 22.33(3),1 a report filed by Referee Jonathan V.
Goodman, recommending the court reinstate the license of Patrick
M. Cooper to practice law in Wisconsin, with conditions. The
1
SCR 22.33(3) provides: "[i]f no appeal is timely filed,
the supreme court shall review the referee's report, order
reinstatement, with or without conditions, deny reinstatement,
or order the parties to file briefs in the matter."
Nos. 2005AP2744-D & 2012AP2334-D
Office of Lawyer Regulation (OLR) did not appeal the referee's
recommendation. After careful review of the matter, we agree
that Attorney Cooper's license should be reinstated, with
conditions. We also agree with the referee that Attorney Cooper
should be required to pay the full costs of this reinstatement
proceeding, which are $3,828.81 as of December 20, 2017.
¶2 Attorney Cooper was admitted to practice law in
Wisconsin in 1993. He practiced in and around Mequon,
Wisconsin, primarily in the field of worker's compensation law.
¶3 On March 23, 2007, this court suspended Attorney
Cooper's license for three years for 35 separate instances of
professional misconduct affecting seven clients and a retained
expert. Attorney Cooper's misconduct was serious. It involved
multiple violations of SCR 20:8.4(c), including conversion of
client funds; multiple misrepresentations to clients; obtaining
an expert's report through dishonesty; issuing at least 17
checks totaling $25,656.85 from his business account at a time
when he knew that his business account was either overdrawn or
depleted; depositing client and third party funds into his
personal account; failing to notify individuals of his receipt
of funds owing to them; failing to keep clients reasonably
informed about the status of their cases; failing to respond to
reasonable requests for information from his clients; failing to
provide clients with sufficient information to make informed
decisions regarding their cases; failing to deliver client files
to successor counsel; failing to communicate with clients;
failing to act with diligence; engaging in improper fee
2
Nos. 2005AP2744-D & 2012AP2334-D
splitting; and failing to cooperate with the OLR's grievance
investigations which involved failing to respond to the OLR's
requests for information and making material misrepresentations
to the OLR. In re Disciplinary Proceedings Against Cooper, 2007
WI 37, 300 Wis. 2d 61, 729 N.W.2d 206. (Cooper I).
¶4 In December 2010, Attorney Cooper filed a petition for
reinstatement. At that time, the OLR resumed the investigation
of nine matters that had been on hold due to Attorney Cooper's
previous non-cooperation. Facing additional discipline for
these reopened matters, Attorney Cooper stipulated to the
dismissal of that reinstatement petition.
¶5 On June 26, 2013, this court suspended Attorney
Cooper's license for an additional two years for the misconduct
committed in connection with the nine reopened matters. This
suspension was based upon 42 counts of misconduct, including
lack of diligence; failure to communicate with clients and
respond to various requests for information; failure to
sufficiently explain matters to a client and consult with a
client regarding the means of pursuing the client's objectives;
failure to return client files; conduct involving dishonesty,
fraud, deceit, or misrepresentation, including
misrepresentations to a client; failure to obey a court order;
failure to notify clients, opposing counsel or tribunals of the
suspension of his license to practice law; practicing law while
suspended; and failure to cooperate with the OLR's grievance
investigations. In re Disciplinary Proceedings Against Cooper,
2013 WI 55, 348 Wis. 2d 266, 833 N.W.2d 88. (Cooper II).
3
Nos. 2005AP2744-D & 2012AP2334-D
¶6 The new suspension was imposed retroactively to run
consecutive to his 2007 suspension. Attorney Cooper has not
practiced law since 2006. His law license is also
administratively suspended for failure to pay mandatory bar
dues.
¶7 On March 30, 2017, Attorney Cooper filed this petition
for reinstatement. The OLR received three reference letters
from Attorney Cooper's colleagues in the human resources field
who have known him since 2013. Each commented positively on
Attorney Cooper's integrity and character. In addition, two
Milwaukee lawyers who have known Attorney Cooper for
approximately 20 years have attested to his conduct and fitness
to practice law, and volunteered to serve as mentors should we
reinstate his license. The OLR filed a response identifying
certain specific concerns that will be discussed but did not
oppose Attorney Cooper's reinstatement, subject to certain
conditions.
¶8 Supreme Court Rule 22.31(1)2 provides the standards to
be met for reinstatement. Specifically, Attorney Cooper must
2
SCR 22.31(1) provides:
(1) The petitioner has the burden of
demonstrating, by clear, satisfactory, and convincing
evidence, all of the following:
(a) That he or she has the moral character to
practice law in Wisconsin.
(b) That his or her resumption of the practice of
law will not be detrimental to the administration of
justice or subversive of the public interest.
(continued)
4
Nos. 2005AP2744-D & 2012AP2334-D
show by clear, satisfactory, and convincing evidence that he has
the moral character to practice law, that his resumption of the
practice of law will not be detrimental to the administration of
justice or subversive to the public interest, and that he has
complied with SCR 22.26 and the terms of the underlying
disciplinary order. In addition, SCR 22.29(4)(a)-(k) and (4m)3
(c) That his or her representations in the
petition, including the representations required by
SCR 22.29(4)(a) to (m) and 22.29(5), are
substantiated.
(d) That he or she has complied fully with the
terms of the order of suspension or revocation and
with the requirements of SCR 22.26.
3
SCR 22.29(4)(a)-(k) and (4m) provide that a petition
for reinstatement shall show all of the following:
(a) The petitioner desires to have the
petitioner's license reinstated.
(b) The petitioner has not practiced law during
the period of suspension or revocation.
(c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will continue to comply with them until the
petitioner's license is reinstated.
(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.
(e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of
and attitude toward the standards that are imposed
upon members of the bar and will act in conformity
with the standards.
(continued)
5
Nos. 2005AP2744-D & 2012AP2334-D
provide additional requirements that a petition for
reinstatement shall show. All of these additional requirements
are effectively incorporated into SCR 22.31(1).
¶9 Referee Goodman was appointed and conducted a public
hearing on this reinstatement proceeding on November 8, 2017.
The referee filed his report on November 30, 2017, recommending
reinstatement with conditions.
¶10 The referee found that Attorney Cooper has not
practiced law during the period of his license suspension.
During the last ten years, while his law license was suspended,
Attorney Cooper obtained a Master of Science Degree in Human
(g) The petitioner can safely be recommended to
the legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.
(h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license
if reinstated.
(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.
(4m) The petitioner has made restitution to or
settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to
the Wisconsin lawyers' fund for client protection for
all payments made from that fund, or, if not, the
petitioner's explanation of the failure or inability
to do so.
6
Nos. 2005AP2744-D & 2012AP2334-D
Resources from Marquette University. He worked as a human
resources consultant for Peak Talent Management, a human
resources manager for Praxis Life Sciences, and a sales training
manager for AT&T.
¶11 The referee found that Attorney Cooper has fully
complied with the terms of the underlying disciplinary order; he
also complied, albeit belatedly, with the requirements set forth
in SCR 22.26.4 Attorney Cooper has paid the costs of his
underlying disciplinary and reinstatement proceedings.
¶12 The referee found that Attorney Cooper has maintained
competence and learning in the law. The record reflects that
the Board of Bar Examiners confirmed that he has completed the
required 60 hours of mandatory continuing legal education. If
reinstated, Attorney Cooper intends to use his law license to
practice worker's compensation, employment, and social security
disability law.
¶13 The referee also found that Attorney Cooper's conduct
since the suspension has been exemplary and above reproach and
that he has a proper understanding of and attitude toward the
standards that are imposed upon members of the bar and will act
in conformity with those standards. The referee found that
Attorney Cooper can safely be recommended to the legal
profession, the courts, and the public as a person fit to be
4
Attorney Cooper failed to timely file the affidavit
required by SCR 22.26 on or before July 21, 2010. He did file
the affidavit on November 22, 2010.
7
Nos. 2005AP2744-D & 2012AP2334-D
consulted by others and to represent them and otherwise act in
matters of trust and confidence and, in general, to aid in the
administration of justice as a member of the bar and as an
officer of the courts.
¶14 Neither party appealed the referee's recommendation.
We therefore review the referee's report pursuant to
SCR 22.33(3). When we review a referee's report and
recommendation, we will adopt the 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.
¶15 The referee's findings are supported by the record,
have not been shown to be clearly erroneous, and we accept them.
Attorney Cooper's conduct was extremely serious. However, upon
careful review of this entire record, we also accept the
referee's conclusions and recommendation that conditional
reinstatement is appropriate.
¶16 We considered the fact that, in response to Attorney
Cooper's reinstatement petition, the OLR expressed concern that
Attorney Cooper has at times understated the scope of his
misconduct in his reinstatement petition. The OLR observed
that:
[Attorney] Cooper appears to have a tendency to
somewhat minimize the misconduct related to dishonesty
by describing it merely as 'conduct involving
misrepresentation' or 'conduct involving dishonesty,'
or describing his conversion of client and third party
funds, his issuance of bad checks and his inducement
to a third party to provide a needed report based upon
8
Nos. 2005AP2744-D & 2012AP2334-D
deception as violations of 'SCR 20:8.4(c) relating to
financial transactions.'
¶17 In a related vein, the OLR suggested that Attorney
Cooper has implied, incorrectly, that some of the instances of
client neglect occurred because he mistakenly thought another
firm was handling matters. The OLR notes that "there is,
however, no evidence that [any other law firm] ever agreed to
dual representation on the relevant files, or that [Attorney]
Cooper ever made the clients aware or obtained their agreement
to any such dual representation." At times it has also appeared
that Attorney Cooper attempted to shift the blame for some of
his failings and misconduct to an assistant when there was no
evidence Attorney Cooper had an assistant during that time
period.
¶18 The referee did not explicitly address these concerns
in his report. However, we reviewed the transcript of the
underlying reinstatement proceeding which shows that these
issues were explored during the reinstatement hearing, and
Attorney Cooper's testimony indicates he has taken
responsibility for and expressed remorse for his misconduct. He
stated:
I firmly believe, remorse and regret only come from
deep introspection and discernment. We can always
find fault in others and circumstances that justify
our actions. I do not place blame on anyone other
than myself. My actions 12-13 yrs ago were
regrettable and I have done some real soul searching
regarding my actions. I know what I did was wrong. I
hurt my clients, myself in some ways - my profession.
I have taken account for my actions and I'm very sorry
for what I did and did not do. My conduct (in action
and inaction) was wrong. I am sorry for what happened
9
Nos. 2005AP2744-D & 2012AP2334-D
and I profess I will work diligently to conduct myself
in a highly ethical and professional manners [sic].
Above all, I will fulfill my obligations as a trusted
professional who cares and advocates for his
clients. . . I have learned from my mistakes and can
attest - these failures will never be repeated.
¶19 At the evidentiary hearing, several witnesses
testified in support of Attorney Cooper's reinstatement,
including a former supervisor and a former managing partner at
Praxis Life Sciences where Attorney Cooper was employed in the
human resources department for several years. They described
him as forthright about the reasons for his license suspension
and "honest and well balanced" in their professional dealings
with him. We note that Attorney Cooper, himself, suggested
mentoring would be appropriate and that he has already explored
various options to ensure professional oversight of his
accounts.
¶20 We conclude that the referee's findings together with
the record before us, support a conclusion that Attorney Cooper
has met his burden to establish by clear, satisfactory, and
convincing evidence that he has met all of the standards
required for reinstatement and we agree that reinstatement is
appropriate, with conditions.
¶21 With respect to the conditions that should be imposed
on Attorney Cooper's practice, there appears to be general
agreement among Attorney Cooper, the OLR, and the referee as to
the nature of the conditions. Attorney Cooper stated he was
willing to have his reinstatement "conditioned upon his
compliance with his own representation that he will 'enter a
10
Nos. 2005AP2744-D & 2012AP2334-D
lawyer mentoring relationship with a practicing Wisconsin
Attorney to provide oversight, advice and counsel to [him]
regarding proper law firm administration and practice.'" The
OLR recommended we direct the OLR to appoint a monitor for a
period of two years, who will file quarterly reports to this
court. The referee recommended two years of mentoring "as
proposed and as testified to" by the two attorneys who stated
their willingness to serve as mentors to Attorney Cooper. We
have reviewed the transcript from the hearing, including the
testimony relating to mentoring, and we include in this order
more detail regarding the nature of the mentoring we deem
appropriate.
¶22 For purposes of emphasis, we caution Attorney Cooper
that his absolute compliance with our conditions and with all
the Rules of Professional Conduct for Attorneys is demanded and
expected. Any deviation from the conditions or the rules will
not be countenanced.
¶23 The referee also recommended we impose the costs of
this reinstatement proceeding on Attorney Cooper. It is this
court's general practice to assess the full costs of a
proceeding against a respondent. See SCR 22.24(1m). We find no
extraordinary circumstances that would warrant a reduction in
the costs imposed and we find it appropriate to assess the full
costs of the reinstatement proceeding against Attorney Cooper.
¶24 IT IS ORDERED that the petition for reinstatement of
the license of Patrick M. Cooper to practice law in Wisconsin is
conditionally reinstated, effective the date of this order.
11
Nos. 2005AP2744-D & 2012AP2334-D
¶25 IT IS FURTHER ORDERED that as a condition of the
reinstatement of Patrick M. Cooper's license to practice law in
Wisconsin, he shall be monitored by an attorney, approved and
appointed by the Office of Lawyer Regulation, for a period of
two years following reinstatement. Patrick M. Cooper shall not
begin representing clients until the monitor has been appointed.
¶26 IT IS FURTHER ORDERED that within 30 days of
reinstatement, the Office of Lawyer Regulation shall approve and
appoint a practice monitor to serve as a mentor to Patrick M.
Cooper, to supervise and oversee Patrick M. Cooper's practice of
law.
¶27 IT IS FURTHER ORDERED that Patrick M. Cooper shall
cooperate fully with the monitoring of his law practice.
Patrick M. Cooper shall schedule with the monitor regular
meetings as directed by the Office of Lawyer Regulation.
Patrick M. Cooper shall submit to the monitor an inventory of
all active client files by the first day of each month during
the period of monitoring. With respect to each active file, the
inventory shall disclose the client name, type of
representation, date opened, most recent activity, next
anticipated action, and anticipated closing date.
¶28 IT IS FURTHER ORDERED that within 30 days of this
order, Patrick M. Cooper shall provide to the Office of Lawyer
Regulation and to the monitor, a written plan outlining office
procedures designed to ensure that Attorney Cooper is and
remains in compliance with the Rules of Professional Conduct for
12
Nos. 2005AP2744-D & 2012AP2334-D
Attorneys. This written plan shall include office procedures
that ensure that:
 Patrick M. Cooper promptly responds to correspondence,
telephone calls, and other important communications from
clients, courts, and other persons interested in legal
matters that Patrick M. Cooper is handling;
 Patrick M. Cooper regularly reviews each and every file
and completes legal matters on a timely basis;
 Patrick M. Cooper maintains law office and trust account
records in compliance with the Rules of Professional
Conduct for Attorneys; and
 Patrick M. Cooper makes available to the monitor and to
the Office of Lawyer Regulation his law office and trust
account records at such intervals as the Office of Lawyer
Regulation and the practice monitor deem necessary to
determine his compliance.
¶29 IT IS FURTHER ORDERED that the practice monitor shall
provide the Office of Lawyer Regulation with written quarterly
reports for a period of two years following the Office of Lawyer
Regulation's appointment of the practice monitor, or at more
frequent intervals as may reasonably be requested by the Office
of Lawyer Regulation.
¶30 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Patrick M. Cooper shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$3,828.81 as of December 20, 2017.
13
Nos. 2005AP2744-D & 2012AP2334-D
¶31 IT IS FURTHER ORDERED that compliance with all of the
terms of this order remain a condition of Patrick M. Cooper's
license to practice law in Wisconsin and if Patrick M. Cooper
fails to comply with the conditions required by this order, his
license may be suspended until further order of this court.
¶32 IT IS FURTHER ORDERED that the administrative
suspension of Patrick M. Cooper's license to practice law in
Wisconsin due to his failure to pay mandatory bar dues will
remain in effect until each reason for the administrative
suspension has been rectified pursuant to SCR 22.28(1).
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Nos. 2005AP2744-D & 2012AP2334-D
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