Office of Lawyer Regulation v. Melinda Alfredson

2019 WI 17
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP520-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Melinda Alfredson, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Melinda Alfredson,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST ALFREDSON
OPINION FILED: February 26, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 17
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP520-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Melinda Alfredson, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 26, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
Melinda Alfredson,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of the referee,
Attorney John Nicholas Schweitzer, recommending that the court
suspend the Wisconsin law license of Attorney Melinda Alfredson
for 90 days and order her to pay the full costs of this
disciplinary proceeding. The referee wrote the report after
Attorney Alfredson and the Office of Lawyer Regulation (OLR)
entered into a stipulation concerning Attorney Alfredson's
misconduct in two client matters and her failure to cooperate
with the OLR's investigation into her misconduct. Neither party
No. 2018AP520-D
has appealed from the referee's report and recommendation, and
thus our review proceeds under Supreme Court Rule
(SCR) 22.17(2).1
¶2 We agree that Attorney Alfredson's professional
misconduct warrants a 90-day suspension. We further agree that
Attorney Alfredson should pay the full costs of this matter,
which total $2,649.59 as of November 15, 2018. No restitution
was sought and none is ordered.
¶3 Attorney Alfredson obtained her Wisconsin law license
in 2009. In 2017, this court suspended her law license for 60
days based on 16 counts of misconduct arising out of her
representation of two clients, her various trust account
violations, and her failure to cooperate with the OLR's
investigation into her misconduct. See In re Disciplinary
Proceedings Against Alfredson, 2017 WI 6, 373 Wis. 2d 79, 890
N.W.2d 13 ("Alfredson I").
¶4 In March 2018, the OLR filed the underlying complaint
against Attorney Alfredson. The OLR alleged that Attorney
Alfredson had engaged in six counts of misconduct based on her
work for clients R.R. and M.T., as well as her failure to
1 SCR 22.17(2) provides:
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.
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No. 2018AP520-D
cooperate with the OLR's investigation into her misconduct. The
OLR sought a four-month suspension of Attorney Alfredson's law
license.
¶5 In mid-October 2018, following the filing of an answer
and the appointment of the referee, the parties executed a
stipulation in which Attorney Alfredson withdrew her answer and
stipulated to the factual allegations and misconduct charges of
the complaint, as amended in the stipulation. Both the OLR and
Attorney Alfredson agreed that a 90–day suspension was
appropriate. The parties further agreed that the stipulation
was not the result of plea bargaining; that Attorney Alfredson's
entry into the stipulation was knowing and voluntary; and that
she understood the misconduct allegations as amended by the
stipulation, her right to contest those allegations, and the
ramifications of her entry into the stipulation.
¶6 In late October 2018, the referee filed his report and
recommendation. The referee accepted the parties' stipulation
and found, based on the stipulation, that the following facts
were true.
Representation of R.R. (Counts 1-4)
¶7 In February 2015, R.R. and his wife divorced. R.R.
was represented by counsel other than Attorney Alfredson at the
time.
¶8 In approximately September 2015, R.R. hired Attorney
Alfredson to represent him after he had fallen behind on certain
post-divorce obligations. R.R. owed his ex-wife past-due
maintenance and attorney's fees. In addition, R.R. had not yet
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No. 2018AP520-D
attempted to sell a boat that he and his ex-wife had owned
during their marriage, even though the divorce judgment required
that the boat be placed on the market for sale.
¶9 In mid-October 2015, a family court commissioner found
R.R. in contempt and imposed a $2,405.95 purge condition.
¶10 On October 20, 2015, R.R. informed Attorney Alfredson
that he had sold the boat for $7,500. Attorney Alfredson and
R.R. agreed that the proceeds from the sale would be deposited
into Attorney Alfredson's trust account; that the proceeds would
be used to pay the $2,405.95 purge amount; and that the
remainder of the proceeds ($5,094.05) would be held in trust
pending documentation of receipts for storage and the bank
payoff for the boat, for which R.R.'s ex-wife was partially
responsible.
¶11 Attorney Alfredson never deposited the boat sale
proceeds into a trust account. Rather, on October 22, 2015, she
deposited the check that R.R. had received for the boat in a
non-trust account held by the law firm where she worked at the
time. Attorney Alfredson subsequently transferred a portion of
the funds to a second non-trust account held by the firm, and
transferred another portion of the funds to a third non-trust
account held by the firm.
¶12 In November 2015, Attorney Alfredson provided R.R.'s
ex-wife's lawyer with a check, drawn from one of these non-trust
accounts, for the $2,405.95 purge amount. Attorney Alfredson
also used some of R.R.'s funds for her own personal use.
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No. 2018AP520-D
¶13 In April 2016, R.R. terminated Attorney Alfredson and
retained a new lawyer. In a May 9, 2016 letter to R.R.,
Attorney Alfredson agreed to forward the remaining proceeds from
the boat sale to R.R.'s new lawyer. Later in May 2016, Attorney
Alfredson provided the OLR with a carbon copy of a purported
check that she allegedly wrote to R.R.'s new lawyer in the
amount of the boat sale proceeds left after the $2,405.95 purge
payment; i.e., $5,094.05.
¶14 In early June 2016, the circuit court ordered that
$5,000 of the proceeds from the boat sale were to be paid to
R.R.'s ex-wife's lawyer within ten business days. In mid-June
2016, R.R.'s ex-wife's lawyer wrote R.R.'s new lawyer, inquiring
about the status of the $5,000 payment and stating that
"Attorney Alfredson advises that she sent the monies from her
trust to you." Attorney Alfredson was copied on this letter.
In response, R.R.'s new lawyer wrote Attorney Alfredson to say
that she had not received any trust funds from Attorney
Alfredson. Almost four months after receiving this letter, in
October 2016, Attorney Alfredson delivered a $5,094.95 check
made payable to R.R.'s ex-wife's lawyer. The check was drawn
from a non-trust account.
¶15 In April 2016, R.R. filed a grievance with the OLR
against Attorney Alfredson. In mid-July 2016, the OLR notified
Attorney Alfredson of the investigation of R.R.'s grievance and
requested certain information and records from her. She did not
respond.
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No. 2018AP520-D
¶16 In August 2016, the OLR sent Attorney Alfredson a
second request for information and records via certified mail.
Although Attorney Alfredson signed the return receipt for the
letter, she did not respond.
¶17 In early September 2016, the OLR personally served
Attorney Alfredson with a letter in which it threatened to move
for a temporary license suspension for failure to cooperate with
its investigation. In late September 2016, the OLR received a
letter response from Attorney Alfredson to R.R.'s grievance.
Attorney Alfredson failed to disclose in her letter that there
was any issue with respect to the delivery of the remaining
proceeds from the boat sale.
¶18 In April 2017, Attorney Alfredson wrote a letter to
the OLR stating that in May 2016, she had sent a $5,094.05 check
to R.R.'s new lawyer, but she stopped payment on the check when
that lawyer informed her that she had never received the check.
¶19 In May 2017, the OLR sent a letter to Attorney
Alfredson requesting additional information and documents.
Attorney Alfredson did not respond.
¶20 In June 2017, the OLR wrote Attorney Alfredson again,
reminding her of her duty to cooperate. In a July 2017
telephone conversation with OLR staff, Attorney Alfredson stated
that her response was in the mail and that she would fax a copy
of the response to the OLR. The OLR received nothing from
Attorney Alfredson.
¶21 In August 2017, the OLR personally served Attorney
Alfredson with a letter in which it threatened to move for a
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No. 2018AP520-D
temporary license suspension for failure to cooperate with its
investigation. In late August 2017, the OLR received Attorney
Alfredson's faxed response to the OLR's May 2017 letter.
Representation of M.T. (Counts 5-6)
¶22 In October 2015, M.T. hired Attorney Alfredson to
represent him in a divorce. In a May 9, 2016 letter to Attorney
Alfredson, M.T.'s wife's lawyer identified certain personal
property items that her client wanted to retrieve from the
marital residence but that M.T. had allegedly prevented her from
retrieving. Attorney Alfredson did not directly communicate
with M.T. regarding this issue. M.T.'s wife moved for contempt
based on M.T.'s failure to return some of the items on the
personal property list.
¶23 In June 2016, M.T. retained a new lawyer. That same
month, M.T.'s new lawyer asked Attorney Alfredson to provide him
with M.T.'s file as soon as possible. His office followed-up
that request with numerous written requests and phone calls
asking for the file. Attorney Alfredson did not provide M.T.'s
file until September 2016, over three months after the new
lawyer's initial request for the file.
¶24 The referee reviewed the complaint and stipulation and
concluded that, in connection with her work for R.R. and M.T.,
Attorney Alfredson had committed the following forms of
misconduct:
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No. 2018AP520-D
• Count One: By failing to hold R.R.'s funds in trust,
Attorney Alfredson violated SCR 20:1.15(b)(1).2
• Count Two: By failing to promptly deliver funds that
she collected in connection with her representation of
R.R. to R.R.'s ex-wife's lawyer, Attorney Alfredson
violated former SCR 20:1.15(d)(1), and
SCR 20:1.15(e)(1).3
• Count Three: By converting R.R.'s funds that she
received in connection with her representation of R.R.
2 SCR 20:1.15(b)(1) provides:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of
clients and 3rd parties paid to a lawyer or law firm
in connection with a representation shall be deposited
in one or more identifiable trust accounts.
3 By S. Ct. Order 14-07, 2016 WI 21 (issued Apr. 4, 2016,
eff. July 1, 2016) former SCR 20:1.15(d)(1) was renumbered as
SCR 20:1.15(e)(1). The text of the rule was not changed.
Former SCR 20:1.15(d)(1) and current SCR 20:15(e)(1) provide:
Upon receiving funds or other property in which a
client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
contract, the lawyer shall promptly notify the client
or 3rd party in writing. Except as stated in this
rule or otherwise permitted by law or by agreement
with the client, the lawyer shall promptly deliver to
the client or 3rd party any funds or other property
that the client or 3rd party is entitled to receive.
8
No. 2018AP520-D
for her own personal use, Attorney Alfredson violated
SCR 20:8.4(c).4
• Count Four: By failing to timely provide the OLR with
a written response to R.R.'s grievance, and by failing
to timely provide the OLR with a response to the OLR's
additional request for information, Attorney Alfredson
violated SCR 22.03(2),5 enforced via SCR 20:8.4(h).6
• Count Five: By failing to address with M.T. the
personal property issue set forth in his wife's
4 SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
5 SCR 22.03(2) provides:
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.
6 SCR 20:8.4(h) provides: "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)."
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No. 2018AP520-D
lawyer's May 9, 2016 letter, Attorney Alfredson
violated SCR 20:1.3.7
• Count Six: By failing to timely deliver M.T.'s case
file to successor counsel, Attorney Alfredson violated
SCR 20:1.16(d).8
¶25 The referee then considered appropriate discipline.
He adopted, without analysis, the OLR's reasoning and
recommendation set forth in its sanction memorandum. In that
memorandum, the OLR discussed certain cases that, in its view,
justified a 90-day suspension period. See In re Disciplinary
Proceedings Against Briggs, 2014 WI 119, 358 Wis. 2d 493, 861
N.W.2d 528 (90-day suspension for lawyer with no prior
discipline who committed 12 counts of misconduct); see also In
re Disciplinary Proceedings Against Woods, 2008 WI 79, 311
Wis. 2d 213, 751 N.W.2d 840 (90-day suspension for lawyer with
an extensive disciplinary history who committed four counts of
7SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
8 SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
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No. 2018AP520-D
misconduct). The OLR also discussed various aggravating and
mitigating factors. On the aggravating side of the scale, the
OLR noted that Alfredson has a disciplinary history, converted
client funds for personal use, and engaged in misconduct with a
pattern of neglect, dishonesty, and failure to cooperate. On
the mitigating side of the scale, the OLR noted Attorney
Alfredson's "lack of substantial legal experience," her
acknowledgement of her misconduct, and her provision of
"confidential information to OLR regarding family and medical
issues which affected her ability to practice law during the
time period in question."
¶26 Ultimately, the referee accepted the parties'
stipulated discipline and recommended a 90-day suspension. He
also recommended that Attorney Alfredson be held responsible for
all the costs of this disciplinary proceeding, which total
$2,649.59 as of November 15, 2018.
¶27 No appeal was filed, so we review this matter pursuant
to SCR 22.17(2). We will affirm the referee's findings of fact
unless they are clearly erroneous. We review conclusions of law
de novo. See In re Disciplinary Proceedings Against Eisenberg,
2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We may impose
whatever sanction we see 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.
¶28 There is no showing that any of the referee's findings
of fact, based on the parties' stipulation, are clearly
erroneous. Accordingly, we adopt them. We also agree with the
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No. 2018AP520-D
referee's legal conclusions that Attorney Alfredson violated the
supreme court rules noted above.
¶29 The central issue for this court is whether a
suspension greater than the 90-day recommended suspension is in
order. Our concern over the length of suspension is prompted by
our February 2017 decision in Alfredson I, in which we noted
that the 60-day suspension we imposed was "modest" given the
facts at hand, and cautioned that a longer suspension would have
been in order had Attorney Alfredson been previously
disciplined. Alfredson I, 373 Wis. 2d 79, ¶35. We warned
Attorney Alfredson "that the court may impose progressively
severe sanctions when an attorney engages in repeated
misconduct," and we imposed the stipulated 60-day suspension
"with the expectation that Attorney Alfredson will not commit
future misconduct subjecting her to additional discipline." Id.
Attorney Alfredson is now back before us——and, troublingly, the
facts show that she failed to cooperate with the OLR's
investigation regarding her representation of R.R. even after
the February 2017 issuance of Alfredson I.
¶30 "This court has long adhered to the concept of
progressive discipline in attorney regulatory cases." In re
Disciplinary Proceedings Against Netzer, 2014 WI 7, ¶49, 352
Wis. 2d 310, 841 N.W.2d 820. The question for us here is
whether moving from a 60-day suspension to the recommended 90-
day suspension constitutes a sufficiently serious step in the
progressive discipline process.
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No. 2018AP520-D
¶31 On these facts, we conclude the answer is yes——though
it is a close call. The closeness of the call stems from the
weakness of certain mitigating circumstances identified by the
OLR in its sanction memorandum——which, again, the referee
endorsed in its entirety without analysis. The OLR stated that
Attorney Alfredson's "lack of substantial legal experience"
should count as a mitigating factor. But Attorney Alfredson was
admitted to the bar in 2009, and the misconduct in this case
occurred years later, in 2015 through much of 2017. By this
time, Attorney Alfredson was not a brand-new lawyer. Moreover,
the ethical principles she violated are not elusive: hold
client funds in trust; do not spend them on personal matters;
pay client funds owed to third parties promptly; communicate
with clients diligently; cooperate with the OLR, etc. Even the
greenest lawyer is charged with knowledge of these basic rules.
Surely Attorney Alfredson, with multiple years of experience
under her belt, should have known better.
¶32 We also cannot assign any weight to the OLR's
statement in its sanction memorandum that Attorney Alfredson
provided "confidential information" to the OLR regarding "family
and medical issues which affected her ability to practice law
during the time period in question." Problematically, there is
no evidence in the record regarding the nature of Attorney
Alfredson's alleged family and medical issues, or their possible
nexus to her misconduct. The parties' stipulation provides no
details, and the issues went unaddressed by the referee. Thus,
nothing stands behind the assertion that Attorney Alfredson's
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No. 2018AP520-D
family and medical issues should partially excuse her misconduct
except the parties' own say-so. That is not enough. See In re
Disciplinary Proceedings Against Davig Huesmann, 2018 WI 114,
¶40, 385 Wis. 2d 49, ___ N.W.2d ___ (declining to consider
lawyer's personal and substance abuse problems as mitigating
factors absent a "showing in [the] record that those problems
were the cause of her professional misconduct"); In re
Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243,
562 N.W.2d 137, (1997) ("Absent a causal connection between an
attorney's medical condition and that attorney's professional
misconduct, the medical condition may not be considered a factor
mitigating either the seriousness of the misconduct or the
severity of discipline to be imposed for it.")
¶33 Nevertheless, we conclude that a 90-day suspension of
Attorney Alfredson's law license is sufficient to impress upon
her the seriousness of her professional duties and to deter her
and others from engaging in similar misconduct. We note the
presence of certain mitigating factors. Attorney Alfredson did,
ultimately, endeavor to rectify the consequences of her
misconduct. She also entered into a stipulation that resolves
this disciplinary proceeding, wherein she explicitly
acknowledged that her misconduct caused harm and that she was
wrong for failing to cooperate with the OLR's investigation. In
addition to these mitigating factors, we note that a roughly
analogous case, In re Disciplinary Proceedings Against Wood,
2014 WI 116, 358 Wis. 2d 472, 854 N.W.2d 844, provides support
for a 90-day suspension. See id. (imposing a 90-day suspension
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No. 2018AP520-D
on a respondent-lawyer who had been suspended the previous year
in his first disciplinary matter, and who stipulated to seven
misconduct counts, including failing to keep a client informed
of the case status, failing to cooperate with the OLR, and
various trust account violations). We impose this 90-day
suspension with the same caveat that we gave in Alfredson I: we
expect that Attorney Alfredson will not commit future
misconduct, and should this expectation be disappointed, our
progressive discipline system will await.
¶34 As is our normal practice, we find it appropriate to
impose the full costs of this disciplinary proceeding on
Attorney Alfredson. See SCR 22.24(1m).
¶35 Finally, as to restitution, none was sought and none
is ordered.
¶36 IT IS ORDERED that the license of Melinda Alfredson is
suspended for a period of 90 days, effective April 9, 2019.
¶37 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Melinda Alfredson shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$2,649.59 as of November 15, 2018.
¶38 IT IS FURTHER ORDERED that Melinda Alfredson 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.
¶39 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
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No. 2018AP520-D
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