2013 WI 96
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP329-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Ronald J. Moore, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Ronald J. Moore,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MOORE
OPINION FILED: November 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 96
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP329-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Ronald J. Moore, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
NOV 29, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Ronald J. Moore,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of the referee, Reserve Judge Robert E. Kinney, that the license
of Attorney Ronald J. Moore to practice law in Wisconsin should
be suspended for a period of three years and that Attorney Moore
should be required to pay the full costs of this disciplinary
proceeding, which were $1,254.43 as of June 27, 2013. The
referee's findings of fact, conclusions of law, and
recommendation regarding discipline were based on a stipulation
No. 2013AP329-D
and no contest plea entered by Attorney Moore. No appeal has
been filed in this matter. Accordingly, our review proceeds
pursuant to SCR 22.17(2).1
¶2 After fully reviewing this matter, we agree with the
referee that the facts of the complaint, which Attorney Moore
has admitted, adequately support the conclusion that Attorney
Moore engaged in the six counts of professional misconduct
alleged in the complaint filed by the Office of Lawyer
Regulation (OLR). We conclude that a three-year suspension of
Attorney Moore's license to practice law in this state is the
appropriate level of discipline for the misconduct committed by
Attorney Moore. Finally, in light of the fact that Attorney
Moore did not stipulate to the underlying facts or enter his no
contest plea until after a referee had been appointed, we impose
the full costs of this proceeding on Attorney Moore.
¶3 The OLR filed the present complaint against Attorney
Moore in February 2013. The complaint set forth six counts of
professional misconduct arising from Attorney Moore's
representation of a husband and wife in a guardianship
proceeding and his drug-related actions involving another
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
No. 2013AP329-D
client, which ultimately led to Attorney Moore's conviction of
two misdemeanor crimes. The complaint asked for a three-year
suspension of Attorney Moore's license and an award of costs.
¶4 Attorney Moore filed an answer in which he admitted
some of the factual allegations of the complaint, denied other
factual allegations, and denied having committed any of the rule
violations charged by the OLR.
¶5 After Reserve Judge Kinney was appointed as referee,
Attorney Moore entered into a stipulation with the OLR.
Pursuant to the stipulation, Attorney Moore withdrew his answer,
agreed that the referee could use the allegations of the
complaint as a factual basis for a determination of misconduct,
and pled no contest to each of the six counts set forth in the
OLR's complaint. The stipulation requested the referee to
recommend that the court impose a three-year suspension, as
initially requested by the OLR. In the stipulation, Attorney
Moore represents that he fully understands the allegations of
misconduct against him and his right to contest those charges of
misconduct, that he understands the ramifications of entering
into the stipulation, that he understands his right to consult
with counsel and has indeed been represented by counsel in this
disciplinary proceeding, and that he is entering into the
stipulation knowingly and voluntarily.
¶6 Pursuant to the stipulation, the referee accepted the
factual allegations of the complaint as true. Those
allegations, which constitute the referee's findings of fact,
are summarized in the following paragraphs.
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No. 2013AP329-D
¶7 Attorney Moore was admitted to the practice of law in
this state in 1984. He most recently was engaged in the private
practice of law in Wausau. He has not been the subject of prior
professional discipline.
¶8 The first three counts of the complaint relate to
Attorney Moore's representation of M.K. and B.K. in a
guardianship proceeding regarding their granddaughter, J.A.R.
In December 2009 J.A.R.'s mother, who lived in California, sent
J.A.R. to live with M.K. and B.K., who resided in Marathon
County, Wisconsin. J.A.R. began residing in the home of M.K.
and B.K. on December 10, 2009. In February 2010 M.K. and B.K.
retained Attorney Moore to pursue a guardianship proceeding with
the aim of becoming the legal guardians of J.A.R. Attorney
Moore filed a guardianship petition in the Marathon County
circuit court on their behalf a few days later.
¶9 The Uniform Child Custody Jurisdiction Act (UCCJA),
which has been adopted in Wisconsin, requires that a minor child
must reside in the state for a minimum of six months in order
for a court of that state to exercise jurisdiction over a
guardianship proceeding involving the minor. Because J.A.R. had
been living with M.K. and B.K. in Marathon County for only
approximately two months at the time the guardianship petition
was filed, the Marathon County circuit court lacked jurisdiction
to proceed with the guardianship petition.
¶10 By April 2010 Attorney Moore was aware that the
child's mother had objected to the guardianship petition, which
meant that even if the guardianship case could have proceeded to
4
No. 2013AP329-D
a resolution, he would have been obligated to prove that
J.A.R.'s mother was not fit to care for her.
¶11 By June 2010 J.A.R. had been living continuously with
M.K. and B.K. in Marathon County for more than six months.
Attorney Moore, however, did not dismiss the pending
guardianship proceeding and file a new proceeding in order to
comply with the six-month jurisdictional requirement.
¶12 By July 2010 J.A.R.'s mother had retained Attorney
Peter C. Rotter to represent her in the guardianship proceeding.
Attorney Rotter entered a special appearance in the guardianship
case on the mother's behalf, specifically reserving her right to
challenge the court's jurisdiction over the petition. Attorney
Moore did not give a copy of Attorney Rotter's notice to M.K.
and B.K., nor did he explain to them that the petition he had
filed was subject to dismissal for failure to comply with the
six-month residency requirement.
¶13 The court scheduled a hearing on the guardianship
petition for July 29, 2010. Although Attorney Moore met with
M.K. and B.K. a few days before the hearing and told them that
things were "in good shape" and he was ready for the hearing, he
had not obtained any school or medical records for J.A.R., had
not obtained any written records at all regarding J.A.R.'s
mother, had not issued any interrogatories or subpoenas to the
mother, and had not deposed the mother. Indeed, according to
Attorney Moore's billing records, he had not done any work on
the guardianship matter in either May or June 2010.
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No. 2013AP329-D
¶14 On July 27, 2010, Attorney Moore filed a motion for an
adjournment of the guardianship hearing due to an illness for
which he had been briefly hospitalized. He did not advise M.K.
and B.K. that he had any medical issues that might affect his
ability to perform his duties as an attorney. The court granted
the motion and rescheduled the hearing for October 7, 2010.
¶15 Attorney Moore did not serve interrogatories or
document requests on J.A.R.'s mother until August 30, 2010. He
did not take her deposition until September 20, 2010. He did
not receive her responses to the interrogatories until after he
had deposed her. Not until October 4, 2010, just three days
prior to the scheduled hearing, did Attorney Moore submit
requests to facilities and persons in California for records
that might be relevant to the issues for the guardianship
hearing. Although he asked for the records to be provided to
him in time for the October 7 hearing, he had not received some
of the requested records as of October 6, 2010. At no point
prior to the scheduled hearing date did Attorney Moore attempt
to cure the jurisdictional defect with the guardianship petition
that he had filed in February 2010.
¶16 By September 27, 2010, Attorney Moore knew that
criminal charges would soon be filed against him. He did not
promptly advise M.K. and B.K. of this fact or discuss how this
would impact his ability to represent them at the guardianship
hearing. On October 4, 2010, a criminal complaint charging
Attorney Moore with two misdemeanors was filed in the Marathon
County circuit court. State v. Moore, Marathon County Case No.
6
No. 2013AP329-D
2010CM1952. The filing of the complaint generated media
coverage in the community, which displeased Attorney Moore.
¶17 On October 6, 2010, just one day prior to the
guardianship hearing, Attorney Moore finally advised M.K. and
B.K. of the criminal charges against him, although he told them
that the charges were unfounded. Given the lack of time prior
to the guardianship hearing, M.K. and B.K. were unable to make a
fully informed decision on whether they should continue to be
represented by Attorney Moore or hire a different attorney to
replace him.
¶18 Later that same day, Attorney Moore advised M.K. and
B.K. that he was too emotionally distraught to be able to
represent them at the guardianship hearing the next day. He
then filed a motion to adjourn the hearing, claiming that the
filing of the criminal complaint and other occurrences had
caused him to suffer a temporary mental condition that was
impairing his ability to represent his clients. The circuit
court granted the motion and rescheduled the hearing for
December 6, 2010.
¶19 On October 16, 2010, J.A.R.'s mother appeared at the
door of M.K. and B.K.'s home with law enforcement to regain
custody of J.A.R. She then took J.A.R. back to California.
¶20 The guardian ad litem (GAL) who had been appointed for
J.A.R., Attorney Peter Karoblis, spoke with Attorney Moore and
proposed filing a new petition for temporary guardianship. He
believed that by doing so he could bring the guardianship matter
in front of the circuit court quickly without the need to serve
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No. 2013AP329-D
J.A.R.'s mother and could obtain an ex parte order granting
temporary guardianship to M.K. and B.K. Attorney Moore doubted
that the GAL's proposed course of action would be successful.
He discussed it with M.K. and B.K., but did not share his
concerns with them. Attorney Moore also did not tell M.K. and
B.K. that although the GAL would be filing the new petition, he
would be performing legal research and drafting documents to
support the petition, for which he would be billing them.
¶21 On November 6, 2010, the circuit court ruled that it
lacked jurisdiction over the initial petition filed by Attorney
Moore because J.A.R. had not resided with M.K. and B.K. in
Wisconsin for at least six consecutive months prior to the
filing of the petition. It also ruled that it lacked
jurisdiction to hear the temporary guardianship petition filed
by the GAL because J.A.R. was no longer physically present in
Wisconsin at the time that petition had been filed. On
November 11, 2010, M.K. and B.K. directed Attorney Moore to
cease doing any further work on their behalf.
¶22 There was also a discrepancy between the retainer
agreement that Attorney Moore had presented to M.K. and B.K. for
their signatures and the monthly billing statements that he
subsequently sent to them. The retainer agreement stated that
on execution of the agreement, M.K. and B.K. were to pay $500,
which was a non-refundable advanced fee that would be placed
into Attorney Moore's business account. It further provided
that Attorney Moore would provide monthly itemized billing
statements, that the clients were required to pay all costs and
8
No. 2013AP329-D
fees by the 15th of the following month, and that the clients
consented to the placement of all advanced fees into Attorney
Moore's business account. The billing statements, however,
stated that the clients were required to maintain a $1,000
balance in Attorney Moore's client trust account by the 15th of
each month. There was no such requirement in the retainer
agreement.
¶23 The referee concluded that these facts were sufficient
to prove that Attorney Moore had committed each of the three
ethical violations alleged in the OLR's complaint regarding this
matter. First, by failing to file a new guardianship petition
after J.A.R. had resided in this state for six months in order
to cure the jurisdictional defect, and by failing in a timely
manner to obtain documents, discovery responses, and deposition
testimony needed for the guardianship hearing, Attorney Moore
failed to act with reasonable diligence, in violation of
SCR 20:1.3.2 Second, the referee concluded that these facts
demonstrated that Attorney Moore had failed to communicate
adequately with his clients, in violation of SCR 20:1.4(a) and
SCR 20:1.4(b).3 Third, by failing to communicate in a clear and
2
SCR 20:1.3 states that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
3
SCRs 20:1.4(a) and (b) state as follows: Communication.
(a) A lawyer shall:
(1) Promptly inform the client of any decision or
circumstance with respect to which the client's
informed consent, as defined in SCR 20:1.0(f), is
required by these rules;
9
No. 2013AP329-D
consistent manner the basis and rate of his fees, what fees were
required to be paid in advance, and how advanced fees would be
handled, and by stating in the retainer agreement that advanced
fees would be nonrefundable, Attorney Moore violated
SCR 20:1.5(b).4
(2) reasonably consult with the client about the
means by which the client's objectives are to be
accomplished;
(3) keep the client reasonably informed about the
status of the matter;
(4) promptly comply with reasonable requests by
the client for information; and
(5) consult with the client about any relevant
limitation on the lawyer's conduct when the lawyer
knows that the client expects assistance not permitted
by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make
informed decisions regarding the representation.
4
SCR 20:1.5(b) states:
(1) 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 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 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.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
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No. 2013AP329-D
¶24 Counts Four through Six of the complaint involve
Attorney Moore's representation of A.E.P., an 18-year-old
defendant in a felony criminal case, and the criminal
convictions against Attorney Moore that arose out of that
representation. Attorney Moore began representing A.E.P. at
least by the summer of 2009 and appeared with him at his initial
appearance in June 2009. In the early stages of the case,
Attorney Moore hoped to negotiate a plea agreement that would
allow A.E.P. to avoid a felony conviction. While the case was
pending, however, the State filed additional charges against
A.E.P. in a series of new cases. Ultimately, there were six
cases pending against A.E.P. in the Marathon County circuit
court. Consequently, Attorney Moore was not able to negotiate a
plea agreement acceptable to both the State and A.E.P.
¶25 A.E.P. was able to post bond and obtain his temporary
release from custody in the pending cases. On February 3, 2010,
Attorney Moore advised A.E.P. that law enforcement would be
raiding his home and that he should therefore bring any drug-
related items to Attorney Moore's law office. A.E.P. did as
instructed by Attorney Moore. Among the items he brought to
Attorney Moore's office were some homemade marijuana pipes.
While A.E.P. was at Attorney Moore's office, Attorney Moore
asked him what was the usual price at the time for an ounce of
marijuana. A.E.P. replied that $400 was the going price.
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No. 2013AP329-D
¶26 The next day Attorney Moore called A.E.P. and
instructed him to come back to Attorney Moore's office. When
A.E.P. arrived at the office, Attorney Moore gave him $400 in
cash and told him to purchase an ounce of marijuana. Attorney
Moore also called A.E.P.'s employer and told the employer that
A.E.P. would not be coming to work that day because Attorney
Moore had something for him to do.
¶27 After A.E.P. left Attorney Moore's office, he
contacted an individual for the purpose of buying the marijuana
that Attorney Moore wanted. He then stopped at his place of
employment and showed his employer the cash. He told his
employer that he had to go buy marijuana for his attorney to
help him with his case. He left his employer to purchase the
marijuana.
¶28 Before A.E.P. could conclude the marijuana purchase,
his father telephoned and confronted him about what was
happening. The father directed A.E.P. to meet him at a parking
lot. When the two reached the meeting place, A.E.P. told his
father that Attorney Moore had given him $400 and had instructed
him to buy an ounce of marijuana.
¶29 A.E.P.'s parents subsequently went to Attorney
Moore's office and confronted him. Attorney Moore denied that
he had given any cash to A.E.P. or that he had directed A.E.P.
to purchase marijuana for him.
¶30 While this discussion was occurring, A.E.P. arrived
at Attorney Moore's office. A.E.P.'s father asked him about the
fact that Attorney Moore had denied what A.E.P. had previously
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No. 2013AP329-D
reported to his father. At that point, A.E.P. took out the $400
in cash and placed it on Attorney Moore's desk to corroborate
what he had told his father. A.E.P. subsequently picked up the
cash again and made a comment to the effect that if the money
did not belong to Attorney Moore, then it must belong to him.
¶31 At that point, Attorney Moore asked A.E.P. if he
could tell A.E.P.'s parents "what was going on." A.E.P.
responded affirmatively. Attorney Moore then told the parents
that the $400 in cash had been given to A.E.P. so he could make
a "good faith buy." Attorney Moore further stated that the
assistant district attorney handling A.E.P.'s pending cases and
other law enforcement officials knew about the proposed buy. He
also told the parents that this was just a good faith buy and
that if A.E.P. wanted to work with law enforcement, an actual
written contract would need to be drafted. Attorney Moore then
took back the $400.
¶32 Several days after this conversation, A.E.P. and his
parents terminated Attorney Moore's representation. They then
met with successor counsel and described the events that had
taken place at Attorney Moore's office on February 4. Successor
counsel contacted the assistant district attorney and confirmed
that he had not been aware of any proposed good faith buy
involving A.E.P. and Attorney Moore.
¶33 A special investigator by the name of Nathan Pauls
was prepared to testify that he had spoken with A.E.P. following
a January 2010 arrest and had told A.E.P. that he would be
willing to speak with A.E.P. once he was out of jail. Special
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No. 2013AP329-D
Investigator Pauls, however, also would have testified that he
had not had any contact with A.E.P. or Attorney Moore since that
initial brief conversation and had not made any arrangements for
A.E.P. to cooperate with law enforcement by making drug buys or
otherwise. Special Investigator Pauls further would have
testified that his law enforcement unit never attempted to
obtain a search warrant for the residence of A.E.P.
¶34 The assistant district attorney would have testified
that he had a 30-second telephone conversation with Attorney
Moore, who suggested that A.E.P. would be willing to cooperate
with law enforcement in exchange for consideration on his
pending charges. The assistant district attorney, however,
would also have testified that he immediately dismissed the idea
because of the seriousness of the pending charges against A.E.P.5
In addition, the assistant district attorney never told Attorney
Moore that A.E.P. should clear his residence of illegal drugs
due to a coming search of the residence by law enforcement.
¶35 As a result of Attorney Moore's interactions with
A.E.P., the State charged Attorney Moore with two unclassified
misdemeanors: (1) possession of a controlled substance (THC),
as a party to a crime-conspiracy, and (2) possession of drug
paraphernalia. Attorney Moore entered no contest pleas to both
charges.
5
Attorney Moore's billing records do not show any entries
for a conversation with the assistant district attorney about
A.E.P. working with law enforcement to conduct drug buys.
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No. 2013AP329-D
¶36 At the time that Attorney Moore asked A.E.P. to
purchase marijuana for him, A.E.P. was out on bond in several
felony cases. If he had purchased and possessed marijuana, his
bond would have been subject to revocation and he could have
been charged with additional felony offenses.
¶37 Based on these facts, the referee found that Attorney
Moore had committed three violations of the Rules of
Professional Conduct for Attorneys. As alleged in Count Four of
the complaint, by engaging in conduct that resulted in his
conviction of the two misdemeanors identified above, Attorney
Moore violated SCR 20:8.4(b).6 Attorney Moore also violated
SCR 20:8.4(c)7 when he made multiple misrepresentations to
A.E.P.'s parents in his office on February 4, 2010. Finally, by
attempting to cause A.E.P. to purchase marijuana for him, which
could have been detrimental to A.E.P., Attorney Moore
represented A.E.P. while having a concurrent conflict of
interest, in violation of SCR 20:1.7(a)(2).8
6
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; . . . ."
7
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . ."
8
SCR 20:1.7(a)(2) states:
Except as provided in par. (b), a lawyer shall
not represent a client if the representation involves
a concurrent conflict of interest. A concurrent
conflict of interest exists if:
. . .
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No. 2013AP329-D
¶38 As requested by the OLR and stipulated to by Attorney
Moore, the referee recommended that the court suspend Attorney
Moore's license to practice law in Wisconsin for a period of
three years. The referee also recommended that the court impose
the full costs of the disciplinary proceedings on Attorney
Moore.
¶39 Our review of a referee's report and recommendation
in an attorney disciplinary proceeding follows well-established
standards. We affirm the referee's findings of fact unless they
are found to be clearly erroneous, but we review the referee's
conclusions of law on a de novo basis. In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. We determine the appropriate level of
discipline to impose given the particular facts of each case,
independent of the referee's recommendation, but benefiting from
it. In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶40 Given the parties' stipulation that the allegations
of the complaint are true, we adopt those allegations as the
referee's findings of fact. We agree with the referee that
those findings are sufficient to support a legal conclusion that
Attorney Moore committed each of the six counts of professional
misconduct alleged in the OLR's complaint.
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer's responsibilities to
another client, a former client or a third person or
by a personal interest of the lawyer.
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No. 2013AP329-D
¶41 Turning to the issue of the proper level of
discipline, we conclude that a three-year suspension is the
appropriate sanction for Attorney Moore's misconduct. Attorney
Moore's ethical violations are serious breaches of his
obligations as an attorney. Not only did he conspire with
another to violate the criminal law of this state, he directed
his own client, a young man already facing multiple criminal
charges, to break the law again to serve Attorney Moore's own
personal cravings. Instead of helping his client to gain a
respect for the laws of this state, Attorney Moore demonstrated
to his young client his own disdain for the rule of law.
Moreover, when confronted by his client's parents, Attorney
Moore lied to them, first by essentially claiming that his
client was a liar and then by trying to spin a story of an
alleged "good faith buy" to cover his own criminal acts. In the
other matter, Attorney Moore showed a troubling lack of
diligence to address a clear problem that he had caused. His
failure to take relatively simple steps to cure the
jurisdictional defect his premature filing had caused cost his
clients their opportunity to seek a legal role in the upbringing
of their granddaughter. A lengthy suspension, with the
accompanying requirement that Attorney Moore must prove his
character and fitness to resume the practice of law, is an
appropriate result of this professional misconduct.
¶42 We further conclude that there is no reason in this
matter to deviate from our general policy of imposing the full
costs of a disciplinary proceeding on the respondent attorney
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No. 2013AP329-D
who is found to have committed professional misconduct. See
SCR 22.24(1m). Although Attorney Moore did ultimately enter
into a stipulation and no contest plea, he initially filed an
answer that denied many of the material factual allegations in
the OLR's complaint and denied having committed any of the six
charged rule violations. This denial required the appointment
of a referee and the accompanying costs of litigating this
matter. It is therefore appropriate that Attorney Moore pay the
full costs associated with this proceeding.
¶43 Finally, we do not include any restitution obligation
in our order. The OLR did not request any restitution award
against Attorney Moore as the two representations did not meet
the OLR's restitution criteria.
¶44 IT IS ORDERED that the license of Ronald J. Moore to
practice law in Wisconsin is suspended for a period of three
years, effective December 30, 2013.
¶45 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Ronald J. Moore shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶46 IT IS FURTHER ORDERED that Ronald J. Moore 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.
¶47 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
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1