2013 WI 101
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP1820-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against John Miller Carroll, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
John Miller Carroll,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CARROLL
OPINION FILED: December 19, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 101
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP1820-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against John Miller Carroll, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 19, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
John Miller Carroll,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report filed by the
referee, Richard P. Mozinski, recommending the court suspend
Attorney John Miller Carroll's license to practice law in
Wisconsin for five months for seven counts of professional
misconduct. No appeal has been filed, so we review the
referee's report and recommendation pursuant to SCR 22.17(2).1
1
SCR 22.17(2) states as follows:
No. 2011AP1820-D
Upon careful review of the matter, we adopt the referee's
findings of fact and conclusions of law. We agree with the
referee that Attorney Carroll's professional misconduct warrants
a five-month suspension of his license to practice law. We also
find it appropriate to require him to pay the full costs of this
proceeding, which were $27,438.26 as of May 13, 2013.
¶2 Attorney Carroll was admitted to the practice of law
in Wisconsin in 1987 and practices in Appleton. In 1992 he
received a private reprimand for failing to hold funds in trust
in which both he and his former law firm claimed an interest.
In 1997 he received a private reprimand for performing work for
a client after his services were terminated and for
misrepresenting that he had filed a motion on behalf of the
client. In 1999 he received a public reprimand for neglect of a
matter, failing to communicate with a client, and failing to
return a retainer.
¶3 In 2002 Attorney Carroll's license was suspended for
one year for eight counts of professional misconduct, four of
which related to trust account and fee matters, and the other
four involving failure to diligently pursue a client's claim,
failure to keep a client reasonably informed about the status of
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. 2011AP1820-D
a matter, failure to disclose to and cooperate with the Board of
Attorneys Professional Responsibility (the predecessor to the
Office of Lawyer Regulation (OLR)), and engaging in conduct
involving dishonesty, fraud, deceit, and misrepresentation. In
re Disciplinary Proceedings Against Carroll, 2001 WI 130, 248
Wis. 2d 662, 636 N.W.2d 718. While suspended, Attorney Carroll
consented to the issuance of a public reprimand for pre-
suspension conduct involving loaning funds to a personal injury
client in conjunction with pending litigation.
¶4 On August 9, 2011, the OLR filed a complaint against
Attorney Carroll alleging ten counts of misconduct arising out
of his handling of two client matters. Attorney Carroll filed
an answer on September 26, 2011. He admitted the allegations in
Count Two of the OLR's complaint and denied all other
allegations.
¶5 The first four counts in the complaint arose out of
Attorney Carroll's representation of T.R. In January 2007 T.R.
was charged in two separate criminal cases. In one case, T.R.
was charged with operating while intoxicated—fourth offense and
operating after revocation. In the other case, he was charged
with two counts of disorderly conduct. T.R. hired Attorney
Carroll to represent him in both cases and paid Attorney Carroll
$2,500 pursuant to a written fee agreement.
¶6 During pretrial proceedings Attorney Carroll made a
timely demand for discovery. The discovery provided by the
State did not include a tape of a 911 call made by a witness.
3
No. 2011AP1820-D
¶7 The two cases were tried at the same time to the same
jury but were not formally consolidated. During the trial,
Attorney Carroll learned that a 911 tape might exist. He
discussed with T.R. whether a tape of the 911 call should be
obtained. He did not request a continuance of the trial and
advised T.R. to proceed with the trial, saying that if the 911
tape was obtained after trial and proved exculpatory, then
Attorney Carroll would file a motion for a new trial based on
the prosecutor's failure to produce the tape. T.R. agreed to
proceed with the trial based on Attorney Carroll's advice. The
jury found T.R. guilty on all counts on April 10, 2007.
¶8 On or before May 14, 2007, Attorney Carroll received
the 911 tape and gave it to T.R. to review. T.R. promptly
called Attorney Carroll and advised that the 911 tape showed
that a witness had lied at trial. During the phone call,
Attorney Carroll advised T.R. that he would postpone the
sentencing, obtain the transcripts from the trial and, if the
911 tape proved exculpatory, he could then file a motion for a
new trial. The sentencing was postponed at Attorney Carroll's
request.
¶9 The day before the scheduled sentencing, a telephone
conference took place between Attorney Carroll and T.R. during
which they discussed whether Attorney Carroll had yet received
the trial transcripts. Upon being informed he had not, T.R.
inquired whether the sentencing should again be postponed.
Attorney Carroll advised T.R. to proceed with the sentencing and
said if the transcription of the 911 tape later proved
4
No. 2011AP1820-D
exculpatory, Attorney Carroll would then represent T.R. in an
appeal of the convictions rather than filing a motion for a new
trial.
¶10 The following day T.R. was sentenced in both cases.
At the same time, Attorney Carroll filed a notice of intent to
pursue postconviction relief in the OWI case but not in the
disorderly conduct case.
¶11 On July 9, 2007, Attorney Carroll filed a notice of
intent to pursue postconviction relief in the disorderly conduct
case. The appeal was untimely; however, the court of appeals
extended the time to file a notice of intent. After T.R.
terminated Attorney Carroll's representation, successor counsel
represented T.R. in both appeals.
¶12 Sometime prior to sentencing, Attorney Carroll and
T.R. had discussed whether T.R. should obtain successor counsel
for his appeals. Attorney Carroll advised T.R. he did not
believe that T.R. had any ineffective assistance of counsel
claims stemming from Attorney Carroll's representation of him at
trial, and as a result, Attorney Carroll could represent T.R. in
the appeal of the convictions. Based on Attorney Carroll's dual
representations, T.R. agreed to be represented by Attorney
Carroll on appeal.
¶13 Despite a potential conflict based on T.R.'s reliance
on Attorney Carroll's advice and Attorney Carroll's opinion that
T.R. had no ineffective assistance of counsel claims, Attorney
Carroll did not obtain from T.R. a written waiver of any
conflict of interest that might exist due to Attorney Carroll's
5
No. 2011AP1820-D
trial and appellate representation of T.R. on the appeals.
Attorney Carroll entered into a written fee agreement for
representation in the appeals.
¶14 Between the time Attorney Carroll filed the notice of
intent to appeal in the OWI case and the time he filed the
notice of intent in the disorderly conduct case, he filed a
proposed order for a stay pending appeal in both cases even
though the cases were never consolidated and no timely notice of
intent had been filed in the disorderly conduct case. The
circuit court granted the motion to stay the sentence in the OWI
case, but denied the motion in the disorderly conduct case
because no notice of intent had been filed.
¶15 Attorney Carroll scheduled another hearing in the
disorderly conduct case, purportedly to reargue the motion to
stay the sentence. He did not, however, file a new motion to
stay the sentence or a written motion for a rehearing of the
motion to stay. The circuit court ruled there was no motion
before the court seeking a stay of sentence in the disorderly
conduct case because the first motion had been denied and no new
motion for a stay had been filed.
¶16 On August 17, 2007, T.R. terminated Attorney Carroll's
representation because he was dissatisfied with Attorney
Carroll's performance, particularly the failure to timely file
the notice of intent to seek postconviction relief and failure
to effectively argue for a stay of the sentence in the
disorderly conduct case.
6
No. 2011AP1820-D
¶17 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Carroll's representation of
T.R.:
[COUNT ONE] By failing to timely file a Notice
of Intent to Pursue Post-Conviction Relief on behalf
of [T.R.] in [his disorderly conduct case], [Attorney]
Carroll violated SCR 20:1.3.2
[COUNT TWO] By failing to obtain [T.R.'s]
written waiver of any conflicts of interest that might
exist due to [Attorney] Carroll's representation of
[T.R.] in the appeal of [his cases], [Attorney]
Carroll violated former SCR 20:1.7(b),3 in effect
through June 30, 2007, and SCR 20:1.7(a)(2)4 and
2
SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
3
Former SCR 20:1.7(b) (effective through June 30, 2007)
provided, in pertinent part, as follows:
A lawyer shall not represent a client if the
representation of that client may be materially
limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely affected; and
(2) the client consents in writing after
consultation. . . . .
4
SCR 20:1.7(a)(2) states as follows:
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: . . .
(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.
7
No. 2011AP1820-D
SCR 20:1.7(b)(1) and (4),5 in effect as of July 1,
2007.
[COUNT THREE] By stating in his August 27, 2007
letter to [T.R.] that "Notice of Intent for Post-
Conviction Relief was filed on June 26, 2007, with
both matters on the caption, as both matters were
consolidated for trial . . . ," when no Notice of
Intent was filed by [Attorney] Carroll on June 26,
2007 and when two Notices of Intent filed by
[Attorney] Carroll were filed on June 14, 2007 and
July 11, 2007, and each related only to, and referred
only to, one of the two cases, [Attorney] Carroll
violated SCR 20:8.4(c).6
[COUNT FOUR] By misrepresenting to OLR that "I
want to make it clear that once I determined that
there was no basis for the Motion for a New Trial, I
advised [T.R.] to seek other counsel, which he did.
Therefore, I did not think it was necessary to
actually have a written waiver. This occurred prior
to filing the Notice of Appeals with the Court of
Appeals, to the best of my recollection . . . ," when
[T.R.] hired [Attorney] Carroll to represent him on
his appeal after [Attorney] Carroll's advice that
[T.R.] might want to seek other counsel until [T.R.]
later terminated [Attorney] Carroll's appellate
representation due to dissatisfaction with [Attorney]
5
SCRs 20:1.7(b)(1) and (4) provide:
Notwithstanding the existence of a concurrent
conflict of interest under par. (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent
representation to each affected client;
. . .
(4) each affected client gives informed consent,
confirmed in a writing signed by the client.
6
SCR 20:8.4(c) says it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
8
No. 2011AP1820-D
Carroll and to seek successor counsel, [Attorney]
Carroll violated SCR 22.03(6)7 via SCR 20:8.4(h).8
¶18 The other client matter detailed in the OLR's
complaint involves Attorney Carroll's representation of J.H. In
early July 2007, J.H. hired Attorney Carroll to represent him in
a case in the United States District Court for the Eastern
District of Wisconsin, in which J.H. had been charged with
conspiracy to distribute and possession with intent to
distribute methamphetamine. J.H. paid Attorney Carroll a
$10,000 retainer fee for the representation. J.H. denied
signing a written fee agreement. Although Attorney Carroll
claimed there was a signed fee agreement, he could not produce
it.
¶19 J.H.'s trial was scheduled for August 20, 2007, but
the proceeding was converted to a plea hearing. Prior to that
date Attorney Carroll received a proposed plea agreement from
the federal prosecutor. J.H. denied seeing the plea agreement
or reviewing its terms with Attorney Carroll at any time before
being asked to sign it. Attorney Carroll disputed J.H.'s
testimony.
7
SCR 22.03(6) provides, "In the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
8
SCR 20:8.4(h) states 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); . . . ."
9
No. 2011AP1820-D
¶20 J.H. said that prior to August 20, 2007, Attorney
Carroll did not (1) hire an investigator to work on the case,
(2) discuss with J.H. whether he would testify at trial, (3)
prepare J.H. to testify, or (4) review the consequences of the
federal sentencing guidelines regarding false testimony and the
range of penalties. Attorney Carroll admitted not hiring an
investigator, but disputed that he had not interviewed potential
witnesses and denied not discussing whether J.H. should testify
at trial. Attorney Carroll said he also had discussed with J.H.
the potential sentencing consequences of a conviction.
¶21 Attorney Carroll said that prior to August 20, 2007,
he was aware that J.H. was concerned that a criminal conviction
could result in the loss of his commercial driver's license
(CDL). J.H. testified at a November 2007 motion hearing to
withdraw his plea that he was told he would not lose his CDL as
the result of the plea agreement. At the hearing before the
referee, J.H. testified that Attorney Carroll did not represent
this to him prior to signing the plea agreement, and that he
learned about the consequences of a controlled substance
conviction on his CDL after being incarcerated. Attorney
Carroll said that as of the date J.H. entered the plea, he knew
a felony conviction would impact J.H.'s CDL status and the plea
agreement was modified to attempt to positively impact the CDL
reinstatement process.
¶22 On August 20, 2007, on Attorney Carroll's advice, J.H.
pled guilty to a one-count information charging him with
possession with intent to deliver methamphetamine. As part of
10
No. 2011AP1820-D
the plea, J.H. gave a "proffer" statement to federal authorities
regarding his knowledge of criminal activities. The federal
prosecutor handling the case testified at the hearing before the
referee that he had no specific recollection whether any
sentencing enhancement was sought against J.H. related to
purportedly untrue statements made by J.H. during the proffer.
¶23 J.H. testified at the hearing before the referee that
in mid- to late-October 2007 he met with a supervisor at the
U.S. probation office and this was the first time he was told he
had pled guilty to a controlled substance violation that
involved selling drugs out of his home. J.H. also testified at
the hearing before the referee that he had an unclear or
confused understanding whether he had pled to a felony or a
misdemeanor because he had been focused on the penalty for the
conviction being probation.
¶24 After the meeting with the probation officer, J.H.
said he contacted Attorney Carroll because he was concerned
about the statement in the plea agreement that he sold drugs out
of his home. In late October 2007, Attorney Carroll filed a
motion to withdraw J.H.'s plea. In a supporting brief, Attorney
Carroll asserted, "It should be noted that [J.H.] was informed
by the United States attorney that the language of the plea
agreement, stating that the offense occurred in the home, would
assure that the conviction would not affect his commercial
driver's license." No such assurances were ever made by the
U.S. attorney.
11
No. 2011AP1820-D
¶25 Sentencing in the case was set for November 13, 2007,
but the court scheduled a hearing for the same date on J.H.'s
motion to withdraw his plea. Prior to November 13, 2007,
Attorney Carroll failed to obtain a written waiver of conflicts
of interest as related to his representation of J.H. with regard
to the plea agreement and the events of August 20, 2007.
Attorney Carroll admitted at the November 13 hearing that there
could be a conflict of interest between him and his client in
connection with his representation of J.H. on the motion to
withdraw J.H.'s guilty plea.
¶26 Prior to November 13, 2007, Attorney Carroll prepared
an affidavit for the signature of government witness P.E.,
essentially recanting statements P.E. had made to a DEA agent
investigating J.H. Attorney Carroll faxed the affidavit to
J.H.'s wife and directed J.H. to find P.E. and get him to sign
the affidavit.
¶27 J.H.'s trial was rescheduled for December 17, 2007.
J.H. testified at the hearing before the referee that between
November 13, 2007, and December 17, 2007, Attorney Carroll did
not discuss J.H.'s trial testimony, assist in preparing him to
testify, or discuss the consequences of false trial testimony.
The OLR offered no proof to corroborate J.H.'s testimony.
¶28 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Carroll's representation of
J.H.:
[COUNT FIVE] By advising [J.H.] prior to or on
November 13, 2007 to personally obtain the signature
12
No. 2011AP1820-D
of [a government witness] on an affidavit, [Attorney]
Carroll violated SCR 20:1.1.9
[COUNT SIX] By (i) prior to August 20, 2007,
failing to adequately discuss the offered plea
agreement with [J.H.]; (ii) on August 20, 2007,
failing to adequately and accurately advise [J.H.] of
the implications of the plea agreement prior to
signature; (iii) failing to adequately discuss with
[J.H.] whether [J.H.] should testify at trial; (iv)
failing to advise [J.H.] of possible civil forfeiture
implications of stating in the plea agreement that
[J.H.] had sold narcotics from his home; (v) failing
to adequately explain to [J.H.] the federal sentencing
guidelines; and (vi) failing to advise [J.H.]
regarding the sentence enhancements that would result
if he was found to have given materially false
testimony at trial, [Attorney] Carroll violated
10 11
SCR 20:1.2(a) and SCR 20:1.4(b).
9
SCR 20:1.1 states, "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
10
SCR 20:1.2(a) provides as follows:
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
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.
11
SCR 20:1.4(b) states, "A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
13
No. 2011AP1820-D
[COUNT SEVEN] By (i) failing to sufficiently
research the implications of possible convictions on
[J.H.'s] CDL prior to August 20, 2007; and (ii)
failing to adequately prepare [Mr. and Mrs. J.H.] to
testify, [Attorney] Carroll violated SCR 20:1.3.
[COUNT EIGHT] By representing [J.H.] on the
Motion to Withdraw his plea when the Motion could be
based, at least in part, on [Attorney] Carroll's acts
and omissions with regard to the plea, and failing to
obtain [J.H.'s] written waiver of those potential
conflicts, [Attorney] Carroll violated SCR 20:1.7(a).12
[COUNT NINE] By stating in the Defendant's Brief
in Support of Motion to Withdraw Guilty Plea that "it
should be noted that [J.H.] was informed by the United
States Attorney that the language of the plea
agreement, stating that the offense occurred in the
home, would assure that the conviction would not
affect his commercial driver's license . . . ," when
[Attorney] Carroll knew that no such assurances had
been made, [Attorney] Carroll violated
SCR 20:3.3(a)(1).13
[COUNT TEN] By advising [J.H.] on August 20,
2007 that the government had made assurances regarding
12
SCR 20:1.7(a) 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:
(1) the representation of one client will be
directly adverse to another client; or
(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.
13
SCR 20:3.3(a)(1) states that a lawyer shall not knowingly
"make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."
14
No. 2011AP1820-D
[J.H.'s] CDL, [Attorney] Carroll violated
SCR 20:8.4(c).
¶29 The hearing before the referee was held in Manitowoc,
Wisconsin, on October 23, 24, and 25, 2012. The referee filed
his report and recommendation on April 22, 2013. The referee
said the testimony of both T.R. and J.H. raised serious
credibility issues as to various factual matters alleged in the
OLR's complaint. The referee said J.H.'s testimony, in
particular, was problematic as to the facts supporting Counts
Six, Seven, and Ten, because his testimony was largely
uncorroborated by other evidence of record. The referee said
although T.R.'s testimony was also suspect at points, there was
sufficient corroborating evidence in the record for the OLR to
meet its burden of proof as to the counts involving T.R.
¶30 The referee said Attorney Carroll's testimony was at
times credible and at other times less so, but when compared
head-to-head with J.H.'s testimony, the referee generally found
Attorney Carroll's testimony more persuasive in the absence of
other evidence. The referee found that the OLR met its burden
of proof as to all counts related to T.R.
¶31 The referee found that OLR failed to meet its burden
of proof as to Counts Six, Seven, and Ten. With respect to
Counts Six and Seven (failure to inform and advise and failure
to act with reasonable diligence), the referee said the OLR's
inability to meet its burden of proof was directly related to
J.H.'s lack of credibility on crucial facts not supported by
corroborating evidence.
15
No. 2011AP1820-D
¶32 With respect to Count Ten, the referee noted the OLR
predicated that count upon the allegation that Attorney Carroll
had advised J.H. that the government made assurances regarding
J.H.'s CDL. The referee said that "the disciplinary hearing
testimony went in another direction." The referee found that
the evidence of record failed to establish such a
misrepresentation occurred.
¶33 Turning to the appropriate sanction, the OLR noted
that Attorney Carroll has a significant disciplinary history, a
pattern of misconduct in the current case that is similar to
that present in his prior disciplinary cases, multiple counts of
misconduct in the current case, a general refusal to acknowledge
the wrongful nature of his misconduct, and substantial
experience in the practice of law at the time the current
offenses were committed. The referee found no dishonest or
selfish motive and also noted that neither victim was
particularly vulnerable. The referee found no mitigating
factors with the exception of the remoteness of his prior
disciplinary cases.
¶34 The OLR had sought a six-month suspension of Attorney
Carroll's license. Attorney Carroll advocated for no suspension
or a suspension not exceeding 30 days. The referee said given
the number of violations proven and Attorney Carroll's
disciplinary history, the sanction suggested by Attorney Carroll
was inappropriate and unduly lenient. The referee concluded
that a five-month suspension was appropriate. In reaching this
conclusion, the referee noted that the OLR failed to meet its
16
No. 2011AP1820-D
burden of proof as to three of the ten counts alleged in its
complaint. The referee found no proof of actual harm resulting
from Attorney Carroll's misconduct. The referee noted that both
T.R. and J.H. were convicted after trials. T.R.'s convictions
were appealed. Although Attorney Carroll failed to properly
initiate the appeal process in one case, failed to obtain a
written conflict waiver, and misrepresented certain information
to T.R., the referee pointed out that the court of appeals
allowed both appeals to go forward. Thus, the referee reasoned
Attorney Carroll's misconduct caused the potential for harm to
T.R. in the appellate process as opposed to actual harm.
¶35 The referee noted that J.H. initially entered a plea,
then successfully withdrew the plea, then was convicted at
trial. While the OLR argued that J.H. might have received a
lesser sentence if the matter had been handled properly, the
referee noted the assistant U.S. attorney who handled the case
could not definitively say that J.H. received a harsher sentence
due to the decision to proceed to trial.
¶36 The referee also noted a significant period of time
had elapsed since Attorney Carroll's last disciplinary
violation.
¶37 In addition to recommending a five-month suspension,
the referee recommended that Attorney Carroll be required to
file with the court a written statement that he has read,
understands, and agrees to be bound by and obey the court's
rules concerning professional conduct for attorneys and the
rules governing disciplinary proceedings. The referee noted the
17
No. 2011AP1820-D
OLR did not seek restitution. The referee deferred to this
court on the issue of an appropriate award of costs.
¶38 This court will affirm a referee's findings of fact
unless they are clearly erroneous. Conclusions of law are
reviewed de novo. In re Disciplinary Proceedings Against Tully,
2005 WI 100, ¶25, 283 Wis. 2d 124, 699 N.W.2d 882. This court
is free to impose whatever discipline it deems appropriate,
regardless of the referee's recommendation. In re Disciplinary
Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660
N.W.2d 686.
¶39 We adopt the referee's findings of fact because they
have not been shown to be clearly erroneous, and we also agree
with the referee's conclusions of law. After careful
consideration of all of the circumstances of this case, we
further agree with the referee that a five-month suspension of
Attorney Carroll's license to practice law is an appropriate
sanction.
¶40 In In re Disciplinary Proceedings Against Boyd, 2009
WI 59, 318 Wis. 2d 281, 767 N.W.2d 226, an attorney who was
found to have engaged in 13 counts of misconduct arising out of
five separate client matters, received a six-month suspension.
The misconduct included failing to act with diligence and
promptness in representing a client, failing to keep a client
informed about the status of a matter, failing to refund a fee
that was not earned, failing to hold property in trust, failing
to cooperate with the OLR's investigation, and engaging in acts
that resulted in a criminal conviction for disorderly conduct.
18
No. 2011AP1820-D
Attorney Boyd had been licensed to practice law for 20 years and
had been professionally disciplined on three prior occasions.
¶41 In In re Disciplinary Proceedings Against Hartigan,
2005 WI 3, 277 Wis. 2d 341, 690 N.W.2d 831, an attorney who was
found to have engaged in six counts of misconduct involving two
separate client matters received a six-month suspension. The
misconduct included engaging in conduct involving dishonesty,
fraud, deceit or misrepresentation; failing, upon termination of
representation, to take steps to the extent reasonably
practicable, to protect a client's interests; knowingly making a
false statement of fact or law to a tribunal; failing to keep a
client reasonably informed about the status of a matter; and
failing to cooperate with the OLR's investigation. Attorney
Hartigan had been practicing law for 15 years and had no prior
disciplinary history.
¶42 Since no two cases are precisely analogous, there is
no "standard" sanction for particular misconduct. Nevertheless,
the sanctions imposed in prior cases are instructive in
fashioning an appropriate remedy for the case at hand. Attorney
Carroll has been practicing law for 25 years. He has been
privately reprimanded on two occasions, publicly reprimanded on
two occasions, and was previously suspended for one year. Ten
years have elapsed since he was last sanctioned. The
professional misconduct at issue here occurred in 2007. Upon
consideration of all of the facts of this particular case, we
agree with the referee that a five-month suspension of Attorney
19
No. 2011AP1820-D
Carroll's license to practice law in Wisconsin is an appropriate
sanction.
¶43 Attorney Carroll has filed an objection to the
statement of costs. He asserts the amount of costs is
unreasonable since the OLR failed to prove three of the six
counts related to the J.H. grievance. He also argues that a
disproportionate amount of fees and costs relate to the J.H.
matter. Attorney Carroll asks that costs be reduced by 50
percent.
¶44 The court's general policy upon a finding of
misconduct is to impose all costs on the respondent attorney.
See SCR 22.24(1m). Because the case presents no extraordinary
circumstances, we conclude that Attorney Carroll should be
required to pay the full costs of this proceeding.
¶45 We choose not to follow the referee's recommendation
that Attorney Carroll be required to file a written statement
that he has read, understands, and agrees to be bound by and
obey the court's rules concerning professional conduct for
attorneys and the rules governing disciplinary proceedings. As
noted in the Preamble to Wisconsin Rules of Professional Conduct
for Attorneys, "Compliance with the rules, as with all law in an
open society, depends primarily upon understanding and voluntary
compliance, secondarily upon reinforcement by peer and public
opinion and finally, when necessary, upon enforcement through
disciplinary proceedings." SCR Chapter 20 Preamble, ¶[16]; see
also id., ¶[7] ("A lawyer should strive to attain the highest
level of skill, to improve the law and the legal profession and
20
No. 2011AP1820-D
to exemplify the legal profession's ideals of public service.")
All lawyers who practice law in Wisconsin are bound by the rules
of professional conduct for attorneys and are presumed to know
the rules and follow them. Requiring an attorney to file a
written statement averring that he or she understands and agrees
to be bound by the rules is redundant and unnecessary.
¶46 IT IS ORDERED that the license of John Miller Carroll
to practice law in Wisconsin is suspended for a period of five
months, effective January 23, 2014.
¶47 IT IS FURTHER ORDERED that within 60 days of the date
of this order, John Miller Carroll shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$27,438.26.
¶48 IT IS FURTHER ORDERED that John Miller Carroll 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.
¶49 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
21
No. 2011AP1820-D.ssa
¶50 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). Attorney
Carroll has previously received two private reprimands, two
public reprimands, and a one-year suspension. In this case he
was found to have committed seven counts of professional
misconduct. A five-month suspension of his license to practice
law in Wisconsin is not in keeping with our system of
progressive discipline. I would impose a suspension of at least
six months.1
¶51 For the foregoing reasons, I respectfully dissent.
¶52 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
1
An attorney whose license is suspended for misconduct for
six months or more must file a petition for reinstatement. See
SCRs 22.28(3) and 22.29.
1
No. 2011AP1820-D.ssa
1