Office of Lawyer Regulation v. William F. Mross

2013 WI 44SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP406-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
William F. Mross , Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
William F. Mross,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MROSS
OPINION FILED: May 17, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 44NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP406-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against William F. Mross, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAY 17, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
William F. Mross,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the supplemental report and
recommendation of the referee, Michael F. Dubis, finding that
William F. Mross violated the Wisconsin Rules of Professional
Conduct for Attorneys and recommending that Attorney Mross's
license to practice law in Wisconsin be suspended for 60 days
and that he be required to pay the costs of this proceeding.
No. 2012AP406-D
¶2 Because no appeal has been filed, we review the
referee's report pursuant to SCR 22.17(2).1 After conducting an
independent review of the matter, we adopt the referee's
findings of fact and supplemental conclusions of law, and we
agree with the referee's supplemental recommendation that
Attorney Mross's license to practice law be suspended for a
period of 60 days. We also agree that Attorney Mross should be
required to pay the full costs of the proceeding, which were
$5,973.98 as of December 17, 2012.
¶3 Attorney Mross was admitted to practice law in
Wisconsin in 1975 and practices in Racine. He has been subject
to professional discipline on four prior occasions. In 2003,
his license was suspended for 90 days for violating SCR
20:8.4(b)2 by delivering cigarettes to inmates at the Racine
County jail, in violation of Wis. Stat. § 302.095(2). In re
Disciplinary Proceedings Against Mross, 2003 WI 4, 259
Wis. 2d 8, 657 N.W.2d 342. In 2004, he was privately
reprimanded for failing to competently represent, communicate
1
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.
2
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; . . . ."
2
No. 2012AP406-D
with, and keep informed clients in the defense of a foreclosure
matter. Private Reprimand, No. 2004-11. In 2006, he was
publicly reprimanded for failing to diligently represent,
communicate with, and keep clients informed in foreclosure
matters; and accepting compensation for representing those
clients from a non-attorney offering debt relief, without the
clients' consent. Public Reprimand of William F. Mross,
No. 2006-10. In 2010, he was publicly reprimanded for
practicing law while administratively suspended for
noncompliance with continuing legal education (CLE) requirements
and failing to disclose to the Board of Bar Examiners (BBE) or
the Office of Lawyer Regulation (OLR) his practice activities
while suspended, and for providing improper financial assistance
to clients when he made a bankruptcy plan payment for them out
of his own funds. Public Reprimand of William F. Mross,
No. 2010-5.
¶4 The instant matter involves Attorney Mross's
representation of two clients in foreclosure and bankruptcy
proceedings. In September 2006 D.Y. and S.Y. retained Attorney
Mross to represent them in a mortgage foreclosure action. D.Y.
and S.Y. had been referred to Attorney Mross by Kent Arney, a
paralegal, who solicits foreclosure defendants and offers them
assistance in handling their foreclosure matters. In October of
2006, the Racine County circuit court granted a default judgment
of foreclosure against D.Y. and S.Y.
¶5 In April of 2007, D.Y. and S.Y., represented by
Attorney Mross, filed a Chapter 13 bankruptcy action in the
3
No. 2012AP406-D
Eastern District of Wisconsin. On December 20, 2007, the
bankruptcy court notified D.Y. and S.Y. and Attorney Mross of
financial management course requirements that were a condition
precedent to obtaining a discharge. On January 28, 2008, the
bankruptcy trustee moved to convert the bankruptcy to a Chapter
7 proceeding. The bankruptcy court granted the trustee's motion
to convert the matter to a Chapter 7 proceeding on February 5,
2008.
¶6 The meeting of creditors occurred on March 31, 2008.
Since D.Y. and S.Y. were then in a Chapter 7 proceeding, they
had approximately 60 days thereafter to file a certification
with the bankruptcy court confirming that they successfully
completed an approved financial management course.
¶7 Attorney Mross's license to practice law was suspended
from May 27, 2008 until July 15, 2008, due to his failure to
meet his CLE obligations.
¶8 As of May 31, 2008, D.Y. and S.Y. had met all
requirements for bankruptcy discharge, except for filing the
financial management course completion certification. D.Y. and
S.Y. did not complete the course requirement, nor did Attorney
Mross remind them to do so at any time before the May 30, 2008
course completion certification filing deadline.
¶9 On July 22, 2008, the bankruptcy court closed D.Y. and
S.Y.'s case without discharge because the required certification
of financial management course completion had not been filed.
The closing notice was sent to both D.Y. and S.Y. and Attorney
Mross. Upon receiving the case closing notice, D.Y. and S.Y.
4
No. 2012AP406-D
enrolled in a financial management course, which they completed
on August 17, 2008. D.Y. and S.Y. also contacted Attorney Mross
and asked him to reopen their bankruptcy proceeding.
¶10 On October 1, 2008, Attorney Mross filed a motion in
the Racine County foreclosure action seeking to cancel the
sheriff's sale which had been scheduled after the non-discharge
closure of the bankruptcy matter. On October 3, 2008, Attorney
Mross sent D.Y. and S.Y. a bill for $500 for this work. On
November 18, 2008, the circuit court vacated the foreclosure
judgment and dismissed the action without prejudice.
¶11 Over the course of the next year, D.Y. and S.Y.
contacted Attorney Mross periodically by e-mail to ask about
reopening their bankruptcy. Each time, Attorney Mross gave a
different excuse for why he had not filed a motion to reopen the
case, and eventually told them not to communicate with him by e-
mail because his computer was not working.
¶12 On November 20, 2009, S.Y. filed a grievance against
Attorney Mross with the OLR.
¶13 On January 4, 2010, Attorney Mross moved to reopen
D.Y. and S.Y.'s bankruptcy and filed documents, including D.Y.
and S.Y.'s financial management course completion certificates.
On February 17, 2010, the bankruptcy court reopened the case and
accepted the course completion certifications. In granting the
motion to reopen, the bankruptcy court commented that while D.Y.
and S.Y. had acted promptly to take the course and obtain the
completion certificate, it was only due to Attorney Mross's
suspended license and his subsequent failure to act promptly
5
No. 2012AP406-D
that 18 months had elapsed before the motion to reopen the
bankruptcy case was filed. On February 18, 2010, the bankruptcy
court entered an order granting D.Y. and S.Y. a discharge.
¶14 On February 27, 2012, the OLR filed a complaint
alleging the following counts of misconduct with respect to
Attorney Mross's handling of D.Y. and S.Y.'s bankruptcy case:
[COUNT I:] By failing to ensure that his clients
met all the requirements for discharge in their
bankruptcy, and by failing for eighteen (18) months to
seek the reopening of his clients' bankruptcy, Mross
violated SCR 20:1.3.3
[COUNT II:] By failing to keep his clients
informed about the status of their bankruptcy and
their requirements for discharge, Mross violated SCR
20:1.4(a)(3).4
¶15 The OLR's complaint also alleged that Attorney Mross
engaged in professional misconduct with respect to his
representation of L.B. and P.B. In 2008, L.B. and P.B. were
experiencing debt management problems and in November 2008 their
mortgage lender filed a foreclosure action against them in Rock
County circuit court. Shortly after the foreclosure action was
filed, L.B. and P.B. received a solicitation letter from
paralegal Kent Arney offering "to discuss alternatives for a
quick resolution." L.B. and P.B. called Arney and hired him
over the phone and agreed to pay him $1,800. L.B. and P.B. paid
$600 to Arney and they also paid a total of $1,200 to Attorney
3
SCR 20:1.3 states "[a] lawyer shall act with reasonable
diligence and promptness in representing a client."
4
SCR 20:1.4(a)(3) states a lawyer shall "keep the client
reasonably informed about the status of a matter; . . . ."
6
No. 2012AP406-D
Mross. L.B. and P.B. gave Arney the information and
documentation needed to file a Chapter 13 bankruptcy petition.
They never directly hired Attorney Mross. Instead, Arney told
L.B. and P.B. that Attorney Mross would be helping him with the
case. There was no written fee agreement between Attorney Mross
and L.B. and P.B.
¶16 Attorney Mross filed an answer in the foreclosure case
on L.B. and P.B.'s behalf on March 9, 2009. L.B. and P.B. had
not met with Attorney Mross prior to this time. On June 16,
2009, the lender moved for judgment in the foreclosure action,
which the circuit court granted on July 17, 2009. The judgment
provided for a six-month redemption period. During the
redemption period the debtor is entitled to pay off the amount
due and keep the home. Once the redemption period is over, a
sheriff's sale of the property occurs.
¶17 Attorney Mross had little, if any, contact with L.B.
and P.B. during the redemption period. A sheriff's sale of L.B.
and P.B.'s residence occurred, and the report of the sheriff's
sale was filed on January 21, 2010.
¶18 On January 19, 2010, Attorney Mross filed a Chapter 13
bankruptcy action on behalf of L.B. and P.B. Later that day the
clerk of the bankruptcy court notified Attorney Mross that he
had failed to file numerous required documents with L.B. and
P.B.'s bankruptcy petition. The notice indicated the deadline
to submit the missing documents was February 2, 2010. Attorney
Mross failed to file the missing documents by that date. On
February 3, 2010, the bankruptcy trustee moved to dismiss L.B.
7
No. 2012AP406-D
and P.B.'s bankruptcy petition for failure to file the missing
documents. On February 24, 2010, Attorney Mross moved to
convert L.B. and P.B.'s bankruptcy to a Chapter 7 proceeding.
The bankruptcy court granted the conversion on February 25,
2010.
¶19 The conversion to a Chapter 7 proceeding moved the
deadline for filing the required documentation to April 10,
2010, and moved the meeting of creditors to April 20, 2010.
Attorney Mross filed some but not all of the required documents,
which were received by the bankruptcy court on April 19, 2010.
The creditors' meeting was rescheduled to May 17, 2010.
Attorney Mross had no contact with L.B. and P.B. between
January 29, 2010 and his filing of the incomplete information on
April 19, 2010.
¶20 On May 14, 2010, the bankruptcy trustee moved to
dismiss L.B. and P.B.'s bankruptcy for failure to file certain
documents. On May 17, 2010, Attorney Mross and L.B. and P.B.
appeared for the meeting of creditors. At the meeting, L.B. and
P.B. testified that Attorney Mross had not requested the
relevant documents from L.B. and P.B. The meeting of creditors
was therefore continued to June 1, 2010.
¶21 Immediately after the May 17, 2010 meeting of
creditors, Attorney Mross requested that L.B. and P.B. pay him
the second and final $600 installment payment toward his $1,200
fee, and L.B. and P.B. did so. On May 25, 2010, Attorney Mross
sent L.B. and P.B. documents from the foreclosure action
indicating that the creditor had moved the bankruptcy court for
8
No. 2012AP406-D
relief from the automatic stay. The bankruptcy trustee
initially objected to the creditor's request but later withdrew
the objection. On May 4, 2010, the bankruptcy court relieved
the creditor from the stay. Attorney Mross did not file any
documents with the bankruptcy court between the May 17, 2010
meeting of creditors and the June 1, 2010 continued meeting.
¶22 At the continued meeting of creditors on June 1, 2010,
L.B. and P.B. appeared and filed the missing documents.
Attorney Mross did not appear at the continued meeting and
advised the trustee's office by telephone that he had not
appeared due to a scheduling conflict.
¶23 On June 4, 2010, the bankruptcy trustee withdrew the
motion to dismiss, noting that L.B. and P.B. had filed the
required documentation with the bankruptcy court. On June 7,
2010, Attorney Mross filed an objection to the motion to
dismiss. By this time L.B. and P.B. had already submitted the
requested documentation and the trustee had withdrawn the motion
to dismiss. On June 8, 2010, Attorney Mross filed what he
labeled an "Amended" attorney fee disclosure, although no prior
attorney fee disclosure had been filed.
¶24 The bankruptcy court granted a discharge to L.B. and
P.B. on July 8, 2010. Based on L.B. and P.B.'s statements at
the June 1, 2010 continued meeting of creditors and the attorney
fee disclosure Attorney Mross filed on June 8, 2010, the trustee
moved the court for an order to examine Attorney Mross's fees
and require him to turn over any excess fees to L.B. and P.B.
In the motion the trustee noted that Attorney Mross failed to
9
No. 2012AP406-D
file required documentation and twice put his clients in
jeopardy of dismissal and forced the trustee to continue the
meeting of creditors twice. The motion also noted Attorney
Mross failed to appear at the second continued meeting of
creditors.
¶25 In a July 28, 2010 conference call with L.B. and P.B.,
Attorney Mross, and the trustee, Attorney Mross agreed to refund
L.B. and P.B. the entire $1,200 they had paid him. L.B. and
P.B. received the refund on July 29, 2010. On August 2, 2010,
Attorney Mross filed a motion with the bankruptcy court to
withdraw as counsel for L.B. and P.B. The trustee withdrew the
motion for fee examination on August 11, 2010.
¶26 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Mross's representation of
L.B. and P.B.:
[COUNT III:] By failing to timely file the
necessary documentation required for his clients'
bankruptcy and by failing to appear for the final
creditors' meeting, Mross violated SCR 20:1.3.
[COUNT IV:] By failing to consult with his
clients about the objectives of the representation,
Mross violated SCR 20:1.4(a)(2).
[COUNT V:] By failing to communicate with his
clients and inform them about the status of their
bankruptcy, Mross violated SCR 20:1.4(a)(3).
[COUNT VI:] By failing to provide his clients a
written fee agreement setting forth the scope of the
representation and the basis or rate of the $1.200 fee
they paid to him, Mross violated SCR 20:1.5(b)(1).5
5
SCR 20:1.5(b)(1) provides:
10
No. 2012AP406-D
¶27 A hearing was held before the referee on November 6,
2012. On November 28, 2012, the referee filed his report and
recommendation. The referee filed a supplemental report and
recommendation on February 21, 2013. The referee found in favor
of the OLR on Counts I, III, and VI. He found in favor of
Attorney Mross on Count II, IV, and V.
¶28 As to Count II, the referee said the practice in the
bankruptcy court is that notices are sent to both the attorney
and the debtors. The referee reasoned D.Y. and S.Y. were aware
of their obligation to file a financial management course
completion certificate and for that reason Attorney Mross should
not be liable for failing to inform D.Y. and S.Y. of something
they were already aware of.
¶29 As to Count IV, the referee said although the record
was clear that Attorney Mross failed to act with reasonable
diligence and promptness, the record failed to show that he did
not consult with L.B. and P.B. about the objectives of his
representation. The referee said the fact Attorney Mross had
The scope of the representation and the basis or
rate of the fee and expenses for which the client will
be responsible shall be communicated to the client in
writing, except before or within a reasonable time
after commencing the representation when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
foreseeable that the total cost of the representation
to the client, including attorney's fees, will be
$1000 or less, the communication may be oral or in
writing. Any changes in the basis or rate of the fee
or expenses shall also be communicated in writing to
the client.
11
No. 2012AP406-D
little or no contact with L.B. and P.B. during certain time
periods did not equate to a failure to consult with them about
the objectives of the representation. The referee said from the
record it appeared L.B. and P.B. and Attorney Mross were always
aware of the objectives sought but that Attorney Mross failed to
act with reasonable diligence in accomplishing those objectives.
With respect to Count V, the referee found Attorney Mross did
communicate with and inform L.B. and P.B. about their case but
that he failed to carry out the planned objectives.
¶30 With respect to the appropriate level of discipline,
the referee recommended a 60-day suspension of Attorney Mross's
license to practice law. The referee noted that the OLR
requested a 90-day suspension. In concluding that a 60-day
suspension is more appropriate, the referee pointed out that
Attorney Mross refunded to L.B. and P.B. the $1,200 they had
paid him. The referee also noted Attorney Mross has consented
to no longer taking referral bankruptcies from Arney. The
referee also noted that he found in favor of Attorney Mross on
three out of the original six counts alleged in the OLR's
complaint. The referee also noted that Attorney Mross's
behavior at the evidentiary hearing was not combative or
antagonistic toward his former clients, counsel for the OLR, or
the referee. The referee also recommended that Attorney Mross
pay the full costs of the proceeding.
¶31 When reviewing a referee's report and recommendation,
we will affirm the referee's findings of fact unless they are
clearly erroneous. See In re Disciplinary Proceedings Against
12
No. 2012AP406-D
Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. The
referee's conclusions of law are subject to de novo review. Id.We determine the appropriate level of discipline given the
particular facts of each case, independent of the referee's
recommendation, but benefitting from it. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686. After independently reviewing the matter, we
conclude that the findings of fact contained in the referee's
supplemental report are not clearly erroneous, and we adopt
them. We also agree that the referee's supplemental conclusions
of law regarding Attorney Mross's misconduct are correct, and we
concur with the referee that a 60-day suspension of Attorney
Mross's license to practice law is appropriate. We also agree
that Attorney Mross should be required to pay the full costs of
this disciplinary proceeding.
¶32 IT IS ORDERED that the license of William F. Mross to
practice law in Wisconsin is suspended for a period of 60 days,
effective June 14, 2013.
¶33 IT IS FURTHER ORDERED that William F. Mross 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.
¶34 IT IS FURTHER ORDERED that within 60 days of the date
of this order, William F. Mross shall pay to the Office of
Lawyer Regulation, the costs of this proceeding, which are
$5,973.98.
13
No. 2012AP406-D
¶35 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
14
2013 WI 44NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP406-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against William F. Mross, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAY 17, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
William F. Mross,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶36 PER CURIAM. We review the supplemental report and
recommendation of the referee, Michael F. Dubis, finding that
William F. Mross violated the Wisconsin Rules of Professional
Conduct for Attorneys and recommending that Attorney Mross's
license to practice law in Wisconsin be suspended for 60 days
and that he be required to pay the costs of this proceeding.
No. 2012AP406-D
¶37 Because no appeal has been filed, we review the
referee's report pursuant to SCR 22.17(2).1 After conducting an
independent review of the matter, we adopt the referee's
findings of fact and supplemental conclusions of law, and we
agree with the referee's supplemental recommendation that
Attorney Mross's license to practice law be suspended for a
period of 60 days. We also agree that Attorney Mross should be
required to pay the full costs of the proceeding, which were
$5,973.98 as of December 17, 2012.
¶38 Attorney Mross was admitted to practice law in
Wisconsin in 1975 and practices in Racine. He has been subject
to professional discipline on four prior occasions. In 2003,
his license was suspended for 90 days for violating SCR
20:8.4(b)2 by delivering cigarettes to inmates at the Racine
County jail, in violation of Wis. Stat. § 302.095(2). In re
Disciplinary Proceedings Against Mross, 2003 WI 4, 259
Wis. 2d 8, 657 N.W.2d 342. In 2004, he was privately
reprimanded for failing to competently represent, communicate
1
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.
2
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; . . . ."
2
No. 2012AP406-D
with, and keep informed clients in the defense of a foreclosure
matter. Private Reprimand, No. 2004-11. In 2006, he was
publicly reprimanded for failing to diligently represent,
communicate with, and keep clients informed in foreclosure
matters; and accepting compensation for representing those
clients from a non-attorney offering debt relief, without the
clients' consent. Public Reprimand of William F. Mross,
No. 2006-10. In 2010, he was publicly reprimanded for
practicing law while administratively suspended for
noncompliance with continuing legal education (CLE) requirements
and failing to disclose to the Board of Bar Examiners (BBE) or
the Office of Lawyer Regulation (OLR) his practice activities
while suspended, and for providing improper financial assistance
to clients when he made a bankruptcy plan payment for them out
of his own funds. Public Reprimand of William F. Mross,
No. 2010-5.
¶39 The instant matter involves Attorney Mross's
representation of two clients in foreclosure and bankruptcy
proceedings. In September 2006 D.Y. and S.Y. retained Attorney
Mross to represent them in a mortgage foreclosure action. D.Y.
and S.Y. had been referred to Attorney Mross by Kent Arney, a
paralegal, who solicits foreclosure defendants and offers them
assistance in handling their foreclosure matters. In October of
2006, the Racine County circuit court granted a default judgment
of foreclosure against D.Y. and S.Y.
¶40 In April of 2007, D.Y. and S.Y., represented by
Attorney Mross, filed a Chapter 13 bankruptcy action in the
3
No. 2012AP406-D
Eastern District of Wisconsin. On December 20, 2007, the
bankruptcy court notified D.Y. and S.Y. and Attorney Mross of
financial management course requirements that were a condition
precedent to obtaining a discharge. On January 28, 2008, the
bankruptcy trustee moved to convert the bankruptcy to a Chapter
7 proceeding. The bankruptcy court granted the trustee's motion
to convert the matter to a Chapter 7 proceeding on February 5,
2008.
¶41 The meeting of creditors occurred on March 31, 2008.
Since D.Y. and S.Y. were then in a Chapter 7 proceeding, they
had approximately 60 days thereafter to file a certification
with the bankruptcy court confirming that they successfully
completed an approved financial management course.
¶42 Attorney Mross's license to practice law was suspended
from May 27, 2008 until July 15, 2008, due to his failure to
meet his CLE obligations.
¶43 As of May 31, 2008, D.Y. and S.Y. had met all
requirements for bankruptcy discharge, except for filing the
financial management course completion certification. D.Y. and
S.Y. did not complete the course requirement, nor did Attorney
Mross remind them to do so at any time before the May 30, 2008
course completion certification filing deadline.
¶44 On July 22, 2008, the bankruptcy court closed D.Y. and
S.Y.'s case without discharge because the required certification
of financial management course completion had not been filed.
The closing notice was sent to both D.Y. and S.Y. and Attorney
Mross. Upon receiving the case closing notice, D.Y. and S.Y.
4
No. 2012AP406-D
enrolled in a financial management course, which they completed
on August 17, 2008. D.Y. and S.Y. also contacted Attorney Mross
and asked him to reopen their bankruptcy proceeding.
¶45 On October 1, 2008, Attorney Mross filed a motion in
the Racine County foreclosure action seeking to cancel the
sheriff's sale which had been scheduled after the non-discharge
closure of the bankruptcy matter. On October 3, 2008, Attorney
Mross sent D.Y. and S.Y. a bill for $500 for this work. On
November 18, 2008, the circuit court vacated the foreclosure
judgment and dismissed the action without prejudice.
¶46 Over the course of the next year, D.Y. and S.Y.
contacted Attorney Mross periodically by e-mail to ask about
reopening their bankruptcy. Each time, Attorney Mross gave a
different excuse for why he had not filed a motion to reopen the
case, and eventually told them not to communicate with him by e-
mail because his computer was not working.
¶47 On November 20, 2009, S.Y. filed a grievance against
Attorney Mross with the OLR.
¶48 On January 4, 2010, Attorney Mross moved to reopen
D.Y. and S.Y.'s bankruptcy and filed documents, including D.Y.
and S.Y.'s financial management course completion certificates.
On February 17, 2010, the bankruptcy court reopened the case and
accepted the course completion certifications. In granting the
motion to reopen, the bankruptcy court commented that while D.Y.
and S.Y. had acted promptly to take the course and obtain the
completion certificate, it was only due to Attorney Mross's
suspended license and his subsequent failure to act promptly
5
No. 2012AP406-D
that 18 months had elapsed before the motion to reopen the
bankruptcy case was filed. On February 18, 2010, the bankruptcy
court entered an order granting D.Y. and S.Y. a discharge.
¶49 On February 27, 2012, the OLR filed a complaint
alleging the following counts of misconduct with respect to
Attorney Mross's handling of D.Y. and S.Y.'s bankruptcy case:
[COUNT I:] By failing to ensure that his clients
met all the requirements for discharge in their
bankruptcy, and by failing for eighteen (18) months to
seek the reopening of his clients' bankruptcy, Mross
violated SCR 20:1.3.3
[COUNT II:] By failing to keep his clients
informed about the status of their bankruptcy and
their requirements for discharge, Mross violated SCR
20:1.4(a)(3).4
¶50 The OLR's complaint also alleged that Attorney Mross
engaged in professional misconduct with respect to his
representation of L.B. and P.B. In 2008, L.B. and P.B. were
experiencing debt management problems and in November 2008 their
mortgage lender filed a foreclosure action against them in Rock
County circuit court. Shortly after the foreclosure action was
filed, L.B. and P.B. received a solicitation letter from
paralegal Kent Arney offering "to discuss alternatives for a
quick resolution." L.B. and P.B. called Arney and hired him
over the phone and agreed to pay him $1,800. L.B. and P.B. paid
$600 to Arney and they also paid a total of $1,200 to Attorney
3
SCR 20:1.3 states "[a] lawyer shall act with reasonable
diligence and promptness in representing a client."
4
SCR 20:1.4(a)(3) states a lawyer shall "keep the client
reasonably informed about the status of a matter; . . . ."
6
No. 2012AP406-D
Mross. L.B. and P.B. gave Arney the information and
documentation needed to file a Chapter 13 bankruptcy petition.
They never directly hired Attorney Mross. Instead, Arney told
L.B. and P.B. that Attorney Mross would be helping him with the
case. There was no written fee agreement between Attorney Mross
and L.B. and P.B.
¶51 Attorney Mross filed an answer in the foreclosure case
on L.B. and P.B.'s behalf on March 9, 2009. L.B. and P.B. had
not met with Attorney Mross prior to this time. On June 16,
2009, the lender moved for judgment in the foreclosure action,
which the circuit court granted on July 17, 2009. The judgment
provided for a six-month redemption period. During the
redemption period the debtor is entitled to pay off the amount
due and keep the home. Once the redemption period is over, a
sheriff's sale of the property occurs.
¶52 Attorney Mross had little, if any, contact with L.B.
and P.B. during the redemption period. A sheriff's sale of L.B.
and P.B.'s residence occurred, and the report of the sheriff's
sale was filed on January 21, 2010.
¶53 On January 19, 2010, Attorney Mross filed a Chapter 13
bankruptcy action on behalf of L.B. and P.B. Later that day the
clerk of the bankruptcy court notified Attorney Mross that he
had failed to file numerous required documents with L.B. and
P.B.'s bankruptcy petition. The notice indicated the deadline
to submit the missing documents was February 2, 2010. Attorney
Mross failed to file the missing documents by that date. On
February 3, 2010, the bankruptcy trustee moved to dismiss L.B.
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No. 2012AP406-D
and P.B.'s bankruptcy petition for failure to file the missing
documents. On February 24, 2010, Attorney Mross moved to
convert L.B. and P.B.'s bankruptcy to a Chapter 7 proceeding.
The bankruptcy court granted the conversion on February 25,
2010.
¶54 The conversion to a Chapter 7 proceeding moved the
deadline for filing the required documentation to April 10,
2010, and moved the meeting of creditors to April 20, 2010.
Attorney Mross filed some but not all of the required documents,
which were received by the bankruptcy court on April 19, 2010.
The creditors' meeting was rescheduled to May 17, 2010.
Attorney Mross had no contact with L.B. and P.B. between
January 29, 2010 and his filing of the incomplete information on
April 19, 2010.
¶55 On May 14, 2010, the bankruptcy trustee moved to
dismiss L.B. and P.B.'s bankruptcy for failure to file certain
documents. On May 17, 2010, Attorney Mross and L.B. and P.B.
appeared for the meeting of creditors. At the meeting, L.B. and
P.B. testified that Attorney Mross had not requested the
relevant documents from L.B. and P.B. The meeting of creditors
was therefore continued to June 1, 2010.
¶56 Immediately after the May 17, 2010 meeting of
creditors, Attorney Mross requested that L.B. and P.B. pay him
the second and final $600 installment payment toward his $1,200
fee, and L.B. and P.B. did so. On May 25, 2010, Attorney Mross
sent L.B. and P.B. documents from the foreclosure action
indicating that the creditor had moved the bankruptcy court for
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No. 2012AP406-D
relief from the automatic stay. The bankruptcy trustee
initially objected to the creditor's request but later withdrew
the objection. On May 4, 2010, the bankruptcy court relieved
the creditor from the stay. Attorney Mross did not file any
documents with the bankruptcy court between the May 17, 2010
meeting of creditors and the June 1, 2010 continued meeting.
¶57 At the continued meeting of creditors on June 1, 2010,
L.B. and P.B. appeared and filed the missing documents.
Attorney Mross did not appear at the continued meeting and
advised the trustee's office by telephone that he had not
appeared due to a scheduling conflict.
¶58 On June 4, 2010, the bankruptcy trustee withdrew the
motion to dismiss, noting that L.B. and P.B. had filed the
required documentation with the bankruptcy court. On June 7,
2010, Attorney Mross filed an objection to the motion to
dismiss. By this time L.B. and P.B. had already submitted the
requested documentation and the trustee had withdrawn the motion
to dismiss. On June 8, 2010, Attorney Mross filed what he
labeled an "Amended" attorney fee disclosure, although no prior
attorney fee disclosure had been filed.
¶59 The bankruptcy court granted a discharge to L.B. and
P.B. on July 8, 2010. Based on L.B. and P.B.'s statements at
the June 1, 2010 continued meeting of creditors and the attorney
fee disclosure Attorney Mross filed on June 8, 2010, the trustee
moved the court for an order to examine Attorney Mross's fees
and require him to turn over any excess fees to L.B. and P.B.
In the motion the trustee noted that Attorney Mross failed to
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No. 2012AP406-D
file required documentation and twice put his clients in
jeopardy of dismissal and forced the trustee to continue the
meeting of creditors twice. The motion also noted Attorney
Mross failed to appear at the second continued meeting of
creditors.
¶60 In a July 28, 2010 conference call with L.B. and P.B.,
Attorney Mross, and the trustee, Attorney Mross agreed to refund
L.B. and P.B. the entire $1,200 they had paid him. L.B. and
P.B. received the refund on July 29, 2010. On August 2, 2010,
Attorney Mross filed a motion with the bankruptcy court to
withdraw as counsel for L.B. and P.B. The trustee withdrew the
motion for fee examination on August 11, 2010.
¶61 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Mross's representation of
L.B. and P.B.:
[COUNT III:] By failing to timely file the
necessary documentation required for his clients'
bankruptcy and by failing to appear for the final
creditors' meeting, Mross violated SCR 20:1.3.
[COUNT IV:] By failing to consult with his
clients about the objectives of the representation,
Mross violated SCR 20:1.4(a)(2).
[COUNT V:] By failing to communicate with his
clients and inform them about the status of their
bankruptcy, Mross violated SCR 20:1.4(a)(3).
[COUNT VI:] By failing to provide his clients a
written fee agreement setting forth the scope of the
representation and the basis or rate of the $1.200 fee
they paid to him, Mross violated SCR 20:1.5(b)(1).5
5
SCR 20:1.5(b)(1) provides:
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No. 2012AP406-D
¶62 A hearing was held before the referee on November 6,
2012. On November 28, 2012, the referee filed his report and
recommendation. The referee filed a supplemental report and
recommendation on February 21, 2013. The referee found in favor
of the OLR on Counts I, III, and VI. He found in favor of
Attorney Mross on Count II, IV, and V.
¶63 As to Count II, the referee said the practice in the
bankruptcy court is that notices are sent to both the attorney
and the debtors. The referee reasoned D.Y. and S.Y. were aware
of their obligation to file a financial management course
completion certificate and for that reason Attorney Mross should
not be liable for failing to inform D.Y. and S.Y. of something
they were already aware of.
¶64 As to Count IV, the referee said although the record
was clear that Attorney Mross failed to act with reasonable
diligence and promptness, the record failed to show that he did
not consult with L.B. and P.B. about the objectives of his
representation. The referee said the fact Attorney Mross had
The scope of the representation and the basis or
rate of the fee and expenses for which the client will
be responsible shall be communicated to the client in
writing, except before or within a reasonable time
after commencing the representation when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
foreseeable that the total cost of the representation
to the client, including attorney's fees, will be
$1000 or less, the communication may be oral or in
writing. Any changes in the basis or rate of the fee
or expenses shall also be communicated in writing to
the client.
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No. 2012AP406-D
little or no contact with L.B. and P.B. during certain time
periods did not equate to a failure to consult with them about
the objectives of the representation. The referee said from the
record it appeared L.B. and P.B. and Attorney Mross were always
aware of the objectives sought but that Attorney Mross failed to
act with reasonable diligence in accomplishing those objectives.
With respect to Count V, the referee found Attorney Mross did
communicate with and inform L.B. and P.B. about their case but
that he failed to carry out the planned objectives.
¶65 With respect to the appropriate level of discipline,
the referee recommended a 60-day suspension of Attorney Mross's
license to practice law. The referee noted that the OLR
requested a 90-day suspension. In concluding that a 60-day
suspension is more appropriate, the referee pointed out that
Attorney Mross refunded to L.B. and P.B. the $1,200 they had
paid him. The referee also noted Attorney Mross has consented
to no longer taking referral bankruptcies from Arney. The
referee also noted that he found in favor of Attorney Mross on
three out of the original six counts alleged in the OLR's
complaint. The referee also noted that Attorney Mross's
behavior at the evidentiary hearing was not combative or
antagonistic toward his former clients, counsel for the OLR, or
the referee. The referee also recommended that Attorney Mross
pay the full costs of the proceeding.
¶66 When reviewing a referee's report and recommendation,
we will affirm the referee's findings of fact unless they are
clearly erroneous. See In re Disciplinary Proceedings Against
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No. 2012AP406-D
Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. The
referee's conclusions of law are subject to de novo review. Id.We determine the appropriate level of discipline given the
particular facts of each case, independent of the referee's
recommendation, but benefitting from it. See In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686. After independently reviewing the matter, we
conclude that the findings of fact contained in the referee's
supplemental report are not clearly erroneous, and we adopt
them. We also agree that the referee's supplemental conclusions
of law regarding Attorney Mross's misconduct are correct, and we
concur with the referee that a 60-day suspension of Attorney
Mross's license to practice law is appropriate. We also agree
that Attorney Mross should be required to pay the full costs of
this disciplinary proceeding.
¶67 IT IS ORDERED that the license of William F. Mross to
practice law in Wisconsin is suspended for a period of 60 days,
effective June 14, 2013.
¶68 IT IS FURTHER ORDERED that William F. Mross 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.
¶69 IT IS FURTHER ORDERED that within 60 days of the date
of this order, William F. Mross shall pay to the Office of
Lawyer Regulation, the costs of this proceeding, which are
$5,973.98.
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No. 2012AP406-D
¶70 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
14