Office of Lawyer Regulation v. Clemment (In Re Clemment)

2018 WI 69
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1933-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Sarah Clemment, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Sarah Clemment,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CLEMMENT
OPINION FILED: June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1933-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Sarah Clemment, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUN 15, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Sarah Clemment,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report of Referee John
Nicholas Schweitzer recommending that Attorney Sarah Clemment be
declared in default, concluding that Attorney Clemment engaged
in professional misconduct, and recommending that she be
publicly reprimanded. Attorney Clemment failed to present a
defense despite being given the opportunity to do so, and she
did not oppose the Office of Lawyer Regulation's (OLR) motion
for default. Accordingly, we declare her to be in default. We
No. 2017AP1933-D
also conclude that a public reprimand is an appropriate sanction
for her misconduct. We further agree with the referee that
Attorney Clemment should be required to make restitution in the
amount of $5,000, and the full costs of the proceeding, which
are $802.19 as of April 12, 2018, should be assessed against
her.
¶2 Attorney Clemment was admitted to practice law in
Wisconsin in 2000 and practices in Madison. In 2011 she
received a consensual public reprimand for failing to provide
competent representation to a client, failing to act with
reasonable diligence and promptness in representing a client,
failing to keep the client reasonably informed about the status
of the matter, and engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation. Public Reprimand of Sarah
Clemment, No. 2011-6 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002365.html).
¶3 On October 3, 2017, the OLR filed a complaint against
Attorney Clemment alleging six counts of misconduct arising out
of her representation of D.H. In November 2015, D.H. had been
charged with first-degree murder in Dane County. In January of
2016, D.H. hired Attorney Clemment to represent him. Attorney
Clemment had never handled a homicide case and had never tried a
case to a jury. D.H.'s sister, B.H., paid Attorney Clemment
$5,000 to represent D.H. Attorney Clemment deposited the $5,000
into her business account and prepared a written flat fee
agreement outlining the scope of the representation.
2
No. 2017AP1933-D
¶4 The circuit court held a preliminary hearing on
January 28, 2016, found probable cause, and bound D.H. over for
trial. There was DNA and GPS evidence implicating D.H.
¶5 Prior to arraignment, Attorney Clemment visited D.H.
four times while he was incarcerated at the Dane County jail.
D.H. was arraigned on March 8, 2016. Attorney Clemment moved
for a speedy trial even though discovery was ongoing. Attorney
Clemment subsequently filed requests for discovery, a motion to
sequester the jury, and a number of motions in limine seeking to
exclude certain evidence, including evidence of prior
convictions, DNA evidence, and GPS evidence.
¶6 The circuit court held a hearing on Attorney
Clemment's motions on May 3, 2016. Attorney Clemment failed to
submit any case law or evidence to support her motion to
sequester the jury and for that reason the circuit court denied
the motion. Attorney Clemment withdrew her motion in limine to
exclude evidence of prior convictions after an exchange with the
circuit court showed she had misunderstood the appropriate legal
standard for the motion.
¶7 As to the speedy trial motion, the circuit court noted
that Attorney Clemment had not hired an investigator, had not
retained any DNA, GPS, or pathology experts, had not filed a
witness list that identified any witnesses other than those
identified by the state, and had not received additional
discovery forthcoming from the state. In addition, D.H. was
then serving time for other crimes and thus would not be
prejudiced by having a speedy trial request denied. The circuit
3
No. 2017AP1933-D
court continued D.H.'s case and strongly urged Attorney Clemment
to associate more experienced trial counsel to assist her in the
case.
¶8 By this point, Attorney Clemment had visited D.H. four
more times, including two visits to the Dodge County
Correctional Institution in Waupun. In September of 2016, D.H.
was transferred to the Green Bay Correctional Institution.
After April 5, 2016, Attorney Clemment made no additional
personal visits to D.H. but rather communicated with him by
telephone and letter. Attorney Clemment never associated any
experienced counsel on the case.
¶9 On August 29, 2016, the circuit court held a hearing
on Attorney Clemment's motion to suppress DNA evidence. The
motion alleged that a search warrant to obtain D.H.'s DNA was
not signed by a judge and was thus invalid. Testimony and
evidence introduced during the hearing showed that a judge had
signed the search warrant and it was legally valid. Moreover,
even if D.H.'s motion had been granted, the state would have
simply gotten another search warrant to obtain the DNA samples,
which would defeat the purpose of the motion. Accordingly, the
circuit court denied the motion.
¶10 During the August 29, 2016 motion hearing, the circuit
court noted that Attorney Clemment had not filed a witness list
but had simply reserved the right to call witnesses identified
by the state. The circuit court reminded Attorney Clemment that
she had no right to call the state's witnesses without
specifically referencing each witness on her own list. The
4
No. 2017AP1933-D
circuit court scheduled a hearing on the pending state's
motions, and it admonished both parties to be prepared to talk
about the evidentiary issues. At that time Attorney Clemment
had not filed any non-evidentiary motions.
¶11 Another motion hearing took place on September 28,
2016, less than two weeks before the scheduled trial date. At
this hearing the state noted that Attorney Clemment had not
reviewed any of the physical evidence in the case despite
numerous offers by the state to schedule a review of the
evidence. Attorney Clemment said she had been ill.
¶12 During the September 28, 2016 hearing, the circuit
court considered the state's motion in limine regarding a
variety of standard pre-trial evidentiary issues, such as
exclusion of witnesses, exclusion of evidence not shown,
character evidence, other acts evidence, impeachment by prior
conviction, and alibi evidence. Attorney Clemment raised no
objection to any of the state's individual requests.
¶13 At one point, after Attorney Clemment did not object
to the exclusion of "golden rule" comments, the circuit court
asked her if she knew what the "golden rule" was. Attorney
Clemment did not know. The circuit court asked Attorney
Clemment if she knew what exclusion of witnesses meant, and she
could not adequately answer the question correctly. Attorney
Clemment was also unable to answer questions from the circuit
court about what "impeachment by prior conviction" meant, and
she was unable to recite the specific statutory procedures for
5
No. 2017AP1933-D
addressing when a witness could be impeached based on a prior
conviction.
¶14 The circuit court asked Attorney Clemment why she did
not object to the exclusion of alibi evidence when it appeared
that she had planned to introduce evidence at trial showing that
D.H. was not at the scene of the crime. Attorney Clemment could
not adequately answer the circuit court's questions about the
meaning of "effect of arrest and conviction" or "known or
unknown third party acts evidence." Attorney Clemment was also
unable to explain the difference between testimonial and non-
testimonial evidence in the context of the confrontation clause
or recall the key United States Supreme Court case discussing
these issues.
¶15 At this point the circuit court determined that
Attorney Clemment was not competent to represent D.H., that she
had not acted diligently in representing him, that she had not
communicated appropriately with him, and that overall she was
not providing effective legal representation to her client. The
circuit court noted that Attorney Clemment had not provided all
of the police reports to D.H., she had not reviewed all of the
physical evidence in the case, she had not hired an investigator
to interview any witnesses, she had not hired any experts, and
she had not received all of the discovery in the case. The
circuit court said, "I find you grossly incompetent and I am
removing you from this case."
¶16 Following her removal from the case, D.H.'s sister
contacted Attorney Clemment and requested a full refund of the
6
No. 2017AP1933-D
$5,000 fee so she could hire a new attorney for her brother.
Attorney Clemment agreed to provide a full refund but said due
to economic hardship she was unable to repay the money
immediately.
¶17 Attorney Clemment did not provide D.H. post-
termination notices as required by supreme court rules, nor did
she refund the $5,000 fee or make arrangements to do so.
¶18 The OLR's complaint alleged the following counts of
misconduct:
COUNT ONE
By failing to provide competent representation to
D.H., and, in addition, by failing to associate more
experienced counsel on the case, Attorney Clemment
violated SCR 20:1.1.1
COUNT TWO
By failing to consult sufficiently with D.H.
concerning the means by which the objectives of the
representation were to be pursued, Attorney Clemment
violated SCR 20:1.2(a)2 and SCR 20:1.4(a)(2).3
1
SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
2
SCR 20:1.2(a) provides:
Subject to pars. (c) and (d), a lawyer shall
abide by a client's decisions concerning the
objectives of representation and, as required by SCR
20:1.4, shall consult with the client as to the means
by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly
authorized to carry out the representation. A lawyer
shall abide by a client's decision whether to settle a
matter. In a criminal case or any proceeding that
(continued)
7
No. 2017AP1933-D
COUNT THREE
By failing to act diligently on D.H.'s behalf,
Attorney Clemment violated SCR 20:1.3.4
COUNT FOUR
By failing to withdraw from the representation when
continued representation of D.H. would result in a
violation of the Rules of Professional Conduct,
Attorney Clemment violated SCR 20:1.16(a)(1).5
COUNT FIVE
By failing to provide to D.H. post-termination notices
and an agreed upon refund following termination of the
representation, Attorney Clemment violated
6
SCR 20:1.5(g)(2).
could result in deprivation of liberty, the lawyer
shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial and whether the
client will testify.
3
SCR 20:1.4(a)(2) provides: "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
4
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
5
SCR 20:1.16(a)(1) provides: "Except as stated in
paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the
representation of a client if the representation will result in
violation of the Rules of Professional Conduct or other law."
6
SCR 20:1.5(g)(2) provides:
Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:
a. A final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
(continued)
8
No. 2017AP1933-D
COUNT SIX
After agreeing to a full refund, by failing to refund
the full $5,000 in advanced fees received from B.H.
following the termination of her representation,
Attorney Clemment violated SCR 20:1.16(d).7
¶19 Attorney Clemment did not file an answer to the OLR's
complaint. The referee was appointed on January 24, 2018. At a
continued scheduling conference held on March 9, 2018, the OLR
made an oral motion for default. Attorney Clemment did not
of the representation, regarding the client's advanced
fee payment.
b. A refund of any unearned advanced fees and
costs.
c. Notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting.
d. Notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.
7
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 expenses that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
9
No. 2017AP1933-D
oppose the motion, and the referee granted it and recommended
that Attorney Clemment be declared in default.
¶20 The referee issued his report and recommendation on
March 23, 2018. The referee found that the OLR had met its
burden of proof with respect to all of the counts of misconduct
alleged in the OLR's complaint. The referee concluded that a
public reprimand, which was the level of discipline sought by
the OLR, was an appropriate sanction for Attorney Clemment's
misconduct.
¶21 The referee said that the purpose of professional
discipline in Wisconsin, as stated in the preamble to SCR 21, is
to protect the public from misconduct by persons practicing law
in Wisconsin. The referee noted that in In re Disciplinary
Proceedings Against Kelsay, 155 Wis. 2d 480, 481, 455 N.W.2d 871
(1990), this court said that the purposes of professional
discipline are: (1) to protect the public from further
misconduct by the offending attorney; (2) to deter other
attorneys from engaging in similar misconduct; and (3) to foster
the attorney's rehabilitation. The referee also noted that
Attorney Clemment has already been the subject of one public
reprimand. The referee said while the previous public reprimand
makes a second public reprimand "somewhat lenient," the referee
expressed hope that Attorney Clemment will learn from this
proceeding and be more committed in the future to her
obligations, both to the Rules of Professional Conduct and to
her clients.
10
No. 2017AP1933-D
¶22 The OLR requested that Attorney Clemment be ordered to
pay restitution to B.H. in the amount of $5,000. The referee
noted that Attorney Clemment did spend some time on D.H.'s case
and she might have been able to justify retaining part of those
funds if her agreement had been on an hourly basis. The referee
noted, however, that B.H. paid Attorney Clemment $5,000 as a
flat fee, and the definition of a flat fee states that it may
not be billed against an hourly rate. For that reason, the
referee deemed it appropriate, given that Attorney Clemment did
not complete the service contracted for, that she be required to
return the entire amount to B.H. Finally, the referee
recommended that Attorney Clemment be assessed the full costs of
this disciplinary proceeding.
¶23 Attorney Clemment has not filed an appeal from the
referee's report. Although Attorney Clemment was given an
opportunity to file an answer and present a defense to the OLR's
complaint, she failed to do so. Accordingly, we declare her to
be in default.
¶24 A referee's findings of fact are affirmed 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. This court may impose
whatever sanction it sees fit, regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 43, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶25 There is no showing that any of the referee's findings
of fact are clearly erroneous. Accordingly, we adopt them. We
11
No. 2017AP1933-D
also agree with the referee's conclusions of law that Attorney
Clemment violated the supreme court rules set forth above.
¶26 With respect to the appropriate level of discipline,
upon careful review of this matter, we agree with the referee's
recommendation that Attorney Clemment be publicly reprimanded.
As the referee noted, generally, discipline is progressive in
nature. See, e.g., In re Disciplinary Proceedings Against
Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501. For
that reason we share the referee's concern as to whether a
second public reprimand is sufficient discipline for Attorney
Clemment's most recent transgressions, particularly since both
cases involved failing to provide competent representation.
However, at times this court has imposed a public reprimand
despite prior reprimands. See, e.g., In re Disciplinary
Proceedings Against Dade, 2017 WI 51, 375 Wis. 2d 140, 895
N.W.2d 37. We note that Attorney Clemment's first consensual
reprimand was imposed seven years ago, and she has no other
disciplinary history. On balance, we conclude that a second
public reprimand is an appropriate sanction.
¶27 We also agree with the referee that Attorney Clemment
should be required to make restitution to B.H. in the amount of
$5,000 and that she should be assessed the full costs of this
proceeding.
¶28 IT IS ORDERED that Sarah Clemment is publicly
reprimanded.
12
No. 2017AP1933-D
¶29 IT IS FURTHER ORDERED that within 60 days of the date
of this order Sarah Clemment shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $802.19.
¶30 IT IS FURTHER ORDERED that within 60 days of the date
of this order Sarah Clemment shall pay restitution to B.H. in
the amount of $5,000.
¶31 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
13
No. 2017AP1933-D
1