Office of Lawyer Regulation v. William J. Grogan

2014 WI 39

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2361-D
COMPLETE TITLE: Office of Lawyer Regulation,
Complainant,
v.
William J. Grogan,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST GROGAN

OPINION FILED: June 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: PROSSER, J., did not participate.

ATTORNEYS:
2014 WI 39
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2361-D

STATE OF WISCONSIN : IN SUPREME COURT

Office of Lawyer Regulation,

Complainant, FILED
v. JUN 19, 2014
William J. Grogan, Diane M. Fremgen
Clerk of Supreme Court
Respondent.

ATTORNEY disciplinary proceeding. Attorney's license

revoked.

¶1 PER CURIAM. We review the recommendation of the

referee, Reserve Judge Robert E. Kinney, that the license of
Attorney William J. Grogan to practice law in Wisconsin be

revoked due to professional misconduct. The referee also

recommended that Attorney Grogan be ordered to pay restitution
No. 2012AP2361-D

and the costs of this proceeding. Attorney Grogan did not

timely appeal the report and recommendation.1

¶2 We adopt the referee's findings of fact and

conclusions of law and agree that the seriousness of Attorney

Grogan's professional misconduct warrants the revocation of his

law license. We further agree that he should pay restitution in

the amounts described below, and that he should pay the costs of

this proceeding.

¶3 Attorney Grogan was admitted to practice law in

Wisconsin in 1978. He has practiced in the Appleton area.

¶4 Attorney Grogan has been previously disciplined for

unprofessional conduct. In 2007, Attorney Grogan was publicly

reprimanded for failing to timely file income and withholding

tax returns, and failing to provide information in a timely

fashion during an Office of Lawyer Regulation (OLR)

investigation. See Public Reprimand of William J. Grogan, No.

2007-6. In 2011, Attorney Grogan's Wisconsin law license was

1
The referee filed an unsigned version of his report and
recommendation on November 5, 2013, and filed the signature page
on November 11, 2013. Counting from the latter of these two
dates, Attorney Grogan's appeal was due in early December of
2013. See SCR 22.17(1) (appeal due within 20 days after the
filing of the referee's report). On December 27, 2013, nearly
four weeks after his appeal deadline, Attorney Grogan filed a
hand-written "Petition to Grant Leave to File Notice of Appeal."
Therein, Attorney Grogan claimed, without any supporting
documentation, that he had been unable to timely file an appeal
for health-related reasons. Given both the unsupported nature
of Attorney Grogan's request and his tendency, shown amply in
the record, to offer unproven medical excuses for delay, we deny
his request.

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No. 2012AP2361-D

suspended for 60 days for misconduct consisting of five

violations of trust account rules and one count of failing to

cooperate with an OLR investigation. In re Disciplinary

Proceedings Against William J. Grogan, 2011 WI 7, 331

Wis. 2d 341, 795 N.W.2d 745.

¶5 Since March 7, 2011, Attorney Grogan's Wisconsin law

license has been suspended continuously. Attorney Grogan has

not satisfied certain conditions placed on the reinstatement of

his license following the 60-day disciplinary suspension imposed

in In re Disciplinary Proceedings Against William J. Grogan, 331

Wis. 2d 341, ¶¶16, 18. Attorney Grogan's license is also

presently suspended for failing to comply with continuing legal

education requirements and failing to pay bar dues. Finally, on

June 16, 2011, and on January 24, 2012, this court temporarily

suspended Attorney Grogan's license to practice law for his

willful failure to cooperate in two separate OLR investigations

concerning certain conduct underlying this opinion. These

temporary suspensions remain in effect.
¶6 The OLR's complaint against Attorney Grogan consists

of some 33 counts of misconduct committed in eight separate

client matters: Charles B. (Counts 1-3); Clayton B. (Counts 4-

8); D.D. (Counts 9-11); L.J. (Counts 12-14); M.S.L. (Counts 15-

20); J.J.M. (Counts 21-26); D.K.K. (Counts 27-29); and C.T.

(Counts 30-33). Attorney Grogan answered the complaint with a

general denial of all counts. The referee held a six-day

hearing on this matter and received post-hearing briefing, after
which the referee filed a 93-page report concluding that
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No. 2012AP2361-D

Attorney Grogan had committed all 33 alleged acts of

professional misconduct.

¶7 Given the volume of the factual findings and legal

conclusions made by the referee, we do not repeat them all here.

It is sufficient to provide the following summary information

concerning the serious misconduct at issue in this matter.

¶8 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.3,2 Attorney Grogan willfully failed to act

with diligence and promptness during his representation of

Clayton B. (Count 4), M.S.L. (Count 15), and D.K.K. (Count 27).

¶9 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.5(b)(3),3 Attorney Grogan improperly

retained funds in his trust account during his representation of

C.T. (Count 31).

¶10 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.15(b)(1),4 Attorney Grogan failed to hold in

trust, separate from his own property, the property of clients

2
SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
3
SCR 20:1.5(b)(3) states, "A lawyer shall promptly respond
to a client's request for information concerning fees and
expenses."
4
SCR 20:1.15(b)(1) states:

Separate account. 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.

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No. 2012AP2361-D

and third persons in his possession during his representation of

J.J.M. (Count 21) and D.K.K. (Count 28).

¶11 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.15(d)(1),5 Attorney Grogan failed to

promptly disburse funds that a third party was entitled to

receive during his representation of J.J.M. (Count 22) and C.T.

(Count 30).

¶12 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.15(d)(2),6 Attorney Grogan failed to provide

a full written accounting of funds he received from J.J.M.

(Count 23).

¶13 The OLR alleged and the referee concluded that,

contrary to SCR 20:1.16(d),7 Attorney Grogan failed upon

5
SCR 20:1.15(d)(1) provides:

Notice and disbursement. 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.
6
SCR 20:1.15(d)(2) states, "Accounting. Upon final
distribution of any trust property or upon request by the client
or a 3rd party having an ownership interest in the property, the
lawyer shall promptly render a full written accounting regarding
the property."
7
SCR 20:1.16(d) provides:

Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
5
No. 2012AP2361-D

termination of representation of Clayton B. to refund any

unearned portion of an advanced fee (Count 6).

¶14 The OLR alleged and the referee concluded that,

contrary to SCR 20:3.4(c),8 Attorney Grogan knowingly disobeyed a

court order during his representation of J.J.M. (Count 24).

¶15 The OLR alleged and the referee concluded that,

contrary to SCR 20:5.5(b)(2),9 Attorney Grogan held out to the

public or otherwise represented that he was admitted to practice

law at a time when his law license was suspended (Count 32).

¶16 The OLR alleged and the referee concluded that,

contrary to SCR 20:8.4(c),10 Attorney Grogan engaged in

dishonesty, fraud, deceit, or misrepresentation during his

representation of Charles B. (Count 2), Clayton B. (Count 7),

D.D. (Count 10), L.J. (Count 13), and M.S.L. (Count 18).

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.
8
SCR 20:3.4(c) states that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."
9
SCR 20:5.5(b)(2) states that a lawyer who is not admitted
to practice in this jurisdiction shall not "hold out to the
public or otherwise represent that the lawyer is admitted to the
practice of law in this jurisdiction."
10
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."

6
No. 2012AP2361-D

¶17 The OLR alleged and the referee concluded that,

contrary to SCR 22.03(2),11 Attorney Grogan failed to fully and

fairly disclose to the OLR all facts and circumstances

pertaining to alleged misconduct that occurred during his

representation of Clayton B. (Count 8), D.D. (Count 11), L.J.

(Count 14), M.S.L. (Count 20), and D.K.K. (Count 29).

¶18 The OLR alleged and the referee concluded that,

contrary to SCR 22.03(2) and SCR 22.03(6),12 Attorney Grogan

failed to fully and fairly disclose to the OLR all facts and

circumstances pertaining to alleged misconduct that occurred

during his representation of J.J.M. and C.T., and also willfully

failed to provide relevant information, fully and truthfully

answer questions, or furnish documents during the OLR's

11
SCR 22.03(2) states:

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.
12
SCR 22.03(6) states, "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."

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No. 2012AP2361-D

investigation into his work on these same matters (Counts 25 and

33).

¶19 The OLR alleged and the referee concluded that,

contrary to SCR 22.03(6), Attorney Grogan willfully failed to

provide relevant information, fully and truthfully answer

questions, or furnish documents in the course of the OLR's

investigation into his representation of J.J.M. (Count 26).

¶20 The OLR alleged and the referee concluded that,

contrary to SCR 22.26(1)(a) and (b),13 Attorney Grogan failed to

notify Clayton B. and M.S.L. by certified mail of his license

suspension and failed to advise them to seek legal advice of

their choice elsewhere (Counts 5 and 17).

¶21 The OLR alleged and the referee concluded that,

contrary to SCR 22.26(1)(c),14 Attorney Grogan failed to promptly
13
SCR 22.26(1)(a) and (b) state:

On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do . . . the following:

(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.

(b) Advise the clients to seek legal advice of
their choice elsewhere.
14
SCR 22.26(1)(c) states:

On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do . . . the following:

. . . .

8
No. 2012AP2361-D

provide written notification of his license suspension to the

circuit court in the M.S.L. matter (Count 19).

¶22 The OLR alleged and the referee concluded that,

contrary to SCR 22.26(2),15 Attorney Grogan engaged in the

practice of law after his license had been suspended during his

representation of Charles B. (Count 1), D.D. (Count 9), L.J.

(Count 12), and M.S.L. (Count 16).

¶23 The OLR alleged and the referee concluded that,

contrary to SCR 10.03(2),16 Attorney Grogan failed to report

changes to his office address to the State Bar (Count 3).

(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
15
SCR 22.26(2) provides as follows:

An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity
customarily done by law students, law clerks, or other
paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.
16
SCR 10.03(2) states as follows:

Enrollment. Every person who becomes licensed to
practice law in this state shall enroll in the state
bar by registering his or her name and social security
number with the association within 10 days after
9
No. 2012AP2361-D

¶24 After making a determination of misconduct as to all

33 counts summarized above, the referee evaluated the

appropriate discipline for Attorney Grogan. The referee

recommended the revocation of Attorney Grogan's law license.

The referee wrote that Attorney Grogan's misconduct was

"blatant." He "grossly mistreated" his clients, many of whom

were financially challenged or otherwise vulnerable. Referring

to Attorney Grogan's conduct in representing L.J., the referee

wrote that "[w]e now have the spectacle of a suspended attorney,

a former district attorney, no less, meeting clients at Burger

King, taking their money, and essentially disappearing into the

night. The damage done to the profession is truly

incalculable."

¶25 The referee vigorously rejected Attorney Grogan's

defenses to the OLR's allegations. The referee variously

described Attorney Grogan's defenses as "entirely incredible,"

"riddled with inconsistency," "baseless," and "advanced without

a shred of supporting documentary evidence . . . , and in the
face of a mountain of contemporaneous written evidence to the

contrary." The referee wrote that one of Attorney Grogan's

arguments during the six-day disciplinary hearing "literally

admission to practice. Every change after enrollment
in any member's office address or social security
number shall be reported promptly to the state bar.
The social security number of a person enrolling in
the state bar may not be disclosed to any person or
entity except the supreme court and its agencies, or
as otherwise provided by supreme court rules.

10
No. 2012AP2361-D

destroyed any remaining credibility he possessed." The referee

also commented that Attorney Grogan's noncooperation with the

disciplinary process rose "to a level never before seen by this

referee. [Attorney Grogan] has made engaging in basic

communication with him a monumental struggle. The jobs of OLR

investigators, Court clerks, and even this referee were

needlessly magnified by his avoidance behavior."

¶26 As mentioned above, the referee ultimately recommended

the revocation of Attorney Grogan's law license. The referee

wrote that "[w]hile it is almost unfathomable to think that an

attorney would risk censure over such trifling amounts as

[Attorney Grogan] took in this case, it is the blatant nature of

the violations, combined with a long pattern of unremorseful

behavior, which tips the scale."

¶27 Concerning monetary sanctions, the referee recommended

that Attorney Grogan be ordered to pay restitution as follows:

• Charles B. matter: $300 to the State Bar's Wisconsin

Lawyers Fund for Client Protection ("Fund");
• Clayton B. matter: $875 to the Fund;

• D.D. matter: $220 to D.D.;

• L.J. matter: $500 to the Fund;

• M.S.L. matter: $65 to M.S.L.;

• J.J.M. matter: $6,500 to the Fund, $1,000 to J.J.M.;

and

• C.T. matter: $2,000 to C.T.'s mother, C.V.G.

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No. 2012AP2361-D

¶28 The referee also recommended that Attorney Grogan be

ordered to pay costs of $37,718.88, a figure which represents

costs through November 26, 2013.

¶29 The OLR did not appeal from the referee report, and,

as mentioned earlier,17 Attorney Grogan did not timely file an

appeal. Accordingly, this court's review proceeds pursuant to

SCR 22.17(2).18 In conducting our review, we will affirm the

referee's findings of fact unless they are found to be clearly

erroneous, but we will review the referee's conclusions of law

on a de novo basis. See In re Disciplinary Proceedings Against

Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. The

court may impose whatever sanction it sees 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.

¶30 Based upon our review of the record, we approve and

adopt the referee's findings of fact and conclusions of law. We

determine that the seriousness of Attorney Grogan's misconduct

demonstrates that his law license must be revoked to protect the
public, courts, and legal system from the repetition of the

17
See n.1.
18
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.

12
No. 2012AP2361-D

misconduct; to impress upon Attorney Grogan the seriousness of

his misconduct; and to deter other attorneys from engaging in

similar misconduct. We also agree with and adopt the referee's

recommendation that Attorney Grogan be ordered to pay

restitution and costs as described above.

¶31 IT IS ORDERED that the license of William J. Grogan to

practice law in Wisconsin is revoked, effective as of the date

of this order.

¶32 IT IS FURTHER ORDERED that the temporary license

suspensions of June 16, 2011 and January 24, 2012, which arose

out of William J. Grogan's willful failure to cooperate with two

separate OLR grievance investigations in this matter, are

lifted.

¶33 IT IS FURTHER ORDERED that within 60 days of the date

of this order William J. Grogan shall pay restitution as

follows:

• Charles B. matter: $300 to the Fund;

• Clayton B. matter: $875 to the Fund;
• D.D. matter: $220 to D.D.;

• L.J. matter: $500 to the Fund;

• M.S.L. matter: $65 to M.S.L.;

• J.J.M. matter: $6,500 to the Fund, $1,000 to J.J.M.;

and

• C.T. matter: $2,000 to C.T.'s mother, C.V.G.

¶34 IT IS FURTHER ORDERED that within 60 days of the date

of this order, William J. Grogan shall pay to the Office of
Lawyer Regulation the imposed costs of this proceeding.
13
No. 2012AP2361-D

¶35 IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

¶36 IT IS FURTHER ORDERED that William J. Grogan shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

revoked.

¶37 DAVID T. PROSSER, J., did not participate.

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No. 2012AP2361-D