2014 WI 46
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP360-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Patrick J. Hudec , Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Patrick J. Hudec,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST HUDEC
OPINION FILED: July 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 46
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP360-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Patrick J. Hudec, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 1, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Patrick J. Hudec,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report filed by Referee
Christine Harris Taylor which adopted a stipulation entered into
between the Office of Lawyer Regulation (OLR) and Attorney
Patrick J. Hudec. The referee agreed that Attorney Hudec
committed four counts of misconduct, as alleged in the OLR's
complaint. The referee further agreed with the parties that a
public reprimand was an appropriate level of discipline for
Attorney Hudec's misconduct. Finally, the referee recommended
No. 2013AP360-D
that Attorney Hudec should be assessed the full costs of the
proceeding, which are $1,625.14 as of January 23, 2014.
¶2 After careful review of the matter, we conclude that
the referee's findings of fact are supported by clear,
satisfactory, and convincing evidence. We further adopt the
referee's conclusions of law. We agree that the appropriate
discipline for Attorney Hudec's misconduct is a public
reprimand. Finally, we agree that Attorney Hudec should bear
the full costs of this proceeding.
¶3 Attorney Hudec was admitted to practice law in
Wisconsin in 1979. The most recent address on file for him with
the State Bar of Wisconsin is East Troy, Wisconsin.
¶4 In November of 1989, Attorney Hudec consented to a
private reprimand for misconduct that included accepting
representation that was adverse to a former client and which
constituted a conflict of interest. Private Reprimand No. 1989-
27.
¶5 In March of 1993, Attorney Hudec consented to a
private reprimand for misconduct that included entering into a
business transaction that was adverse to the financial interests
of a client; engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation; and withholding material evidence
in failing to cooperate with the investigation of the Board of
Attorneys Professional Responsibility, the predecessor to the
OLR. Private Reprimand No. 1993-4.
¶6 In May of 2001, Attorney Hudec consented to a third
private reprimand for misconduct that included failing to obtain
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No. 2013AP360-D
written consent to a potential conflict of interest in
representing two clients and drafting a letter which contained a
false statement of fact. Private Reprimand No. 2001-OLR-15.
¶7 In March of 2008, Attorney Hudec consented to a public
reprimand for misconduct that included failing to act with
reasonable diligence and promptness in representing a client,
failing to keep a client reasonably informed about the status of
a matter and promptly comply with requests for information, and
failing to timely respond to OLR letters and telephone calls and
to timely produce information requested by the OLR. Public
Reprimand of Patrick J. Hudec, No. 2008-OLR-2.
¶8 On February 13, 2013, the OLR filed a complaint
alleging four counts of misconduct which occurred between
November 2007 and January 2009. The allegations of misconduct
arose out of Attorney Hudec's representation of Roma II –
Waterford, LLC, et al. (Roma II), a corporation that owned a
restaurant. Roma II was the defendant in a lawsuit filed in
Racine County circuit court. Attorney Hudec signed an answer to
the plaintiff's complaint and filed it on November 13, 2007.
The answer was incomplete and responded to only the first of the
four causes of action alleged in the complaint. The paragraphs
in the answer were misnumbered and started with paragraphs one
through 11, then skipped to paragraphs 23 and 24. There was no
claim for relief in the answer.
¶9 On December 17, 2007, the plaintiff in the suit filed
a motion for default judgment on the second, third, and fourth
causes of action. Two days later Attorney Hudec filed an
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No. 2013AP360-D
amended answer and counterclaim. At a hearing on the
plaintiff's motion for default judgment, Attorney Hudec told the
circuit court that the first answer he had filed had been a
draft that was filed by mistake.
¶10 Attorney Hudec further stated to the court that he had
filed an affidavit in opposition to the defendant's default
judgment motion. Attorney Hudec retracted his representation
about filing an affidavit in opposition to the motion when both
the plaintiff's counsel and the court remarked they had not
received the affidavit. Electronic court records did not show a
record of the affidavit referred to by Attorney Hudec.
¶11 The circuit court granted the plaintiff's motion for a
default judgment on the second, third, and fourth causes of
action and did not discuss Attorney Hudec's amended answer in
its decision. Attorney Hudec filed a motion for reconsideration
and a motion to vacate the default judgment. Following a
hearing, the circuit court signed a document entitled "Final
Order" that stated the defendant's motions for reconsideration
and to vacate the default judgment were denied and that a
proposed order for judgment and judgment filed by the plaintiff
was stayed pending appeal. The circuit court's order did not
say it was final for purposes of appeal. No judgment was filed
or entered.
¶12 On June 5, 2008, Attorney Hudec filed an appeal on
behalf of Roma II in the court of appeals. He filed his brief
on November 12, 2008. Attorney Hudec alleged on appeal that the
default judgment was unfair because the defendant's failure to
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No. 2013AP360-D
answer three of the four causes of action was due to a mistake
on Attorney Hudec's part. The plaintiff filed his responsive
appellate brief on December 1, 2008. Attorney Hudec filed a
reply brief on January 30, 2009, but failed to copy the
plaintiff's counsel.
¶13 Although the court of appeals ultimately reversed the
circuit court since Attorney Hudec timely filed an amended
answer that joined issue as to all causes of action, the court
of appeals criticized statements made by Attorney Hudec at the
motion hearing in circuit court. The court of appeals referred
to Attorney Hudec's "lack of attention to detail." The court of
appeals also said Attorney Hudec's conduct was "egregious." The
court of appeals further found that Attorney Hudec incorrectly
stated the standard of review as being de novo, whereas the
correct standard of review was whether the lower court's
decision was an erroneous exercise of discretion.
¶14 The court of appeals also said Attorney Hudec's
"mistake" in signing and filing an incomplete answer appeared
"not to be an isolated incident but a pattern of gross and
inexcusable inattention to details." The court of appeals
sanctioned Attorney Hudec for intentionally including materials
not appropriate to the appeal, including an administrative
decision which postdated the decision being appealed and for
intentionally including materials the court deemed "salacious."
The court of appeals imposed a $500 penalty as a sanction.
¶15 The court of appeals also found that Attorney Hudec
failed to serve a copy of the reply brief on the respondent as
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No. 2013AP360-D
required by Wis. Stat. § 809.19(8). The court of appeals also
chastised Attorney Hudec for failing to proofread his
submissions and said, "Frankly, we are at a loss to understand
what is clearly Hudec's intentional disregard of the rules and
the details, including his failure to proofread."
¶16 The OLR's complaint alleged the following counts of
misconduct:
[COUNT 1] By engaging in what the Court of
Appeals later described as "a pattern of gross and
inexcusable inattention to details," including the
signing and filing of an incomplete answer in the
[Racine County circuit court] litigation; incorrectly
informing the circuit court that he had filed an
affidavit in opposition to the plaintiff's motion for
default judgment; and stating a presumption that his
"testimony" was under oath, while making an argument
to the court (as opposed to testifying as a witness),
[Attorney] Hudec violated SCR 20:1.1.1
[COUNT 2] When, as described by the Court of
Appeals, [Attorney] Hudec continued at the appellate
level to engage in "egregious conduct," including
failing to ensure that a proper final order or
judgment was in the record when he filed his notice of
appeal; misstating the standard of review of a default
judgment; filing a principal brief rife with
grammatical and spelling errors; including in his
principal brief a statement of facts that included
facts not germane to the issues on appeal; and filing
a reply brief that was struck as untimely and which
was not served on opposing counsel, [Attorney] Hudec
violated SCR 20:1.1.
[COUNT 3] By including in his principal appellate
brief facts that were described by the Court of
1
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."
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No. 2013AP360-D
Appeals as "salacious," not germane to the issues on
appeal, and which "could only have been included to
prejudice [the plaintiff,"] [Attorney] Hudec violated
SCR 20:3.1(a)(3).2
[COUNT 4] By failing to serve opposing counsel
with a copy of the reply brief that he filed in the
Court of Appeals thereby engaging in an ex parte
communication with the court, [Attorney] Hudec
violated SCR [20:3.5(b)].3
¶17 Attorney Hudec filed an answer to the complaint on
April 5, 2013. Christine Harris Taylor was appointed as referee
on April 15, 2013.
¶18 On October 11, 2013, the parties filed a stipulation
whereby Attorney Hudec agreed that each factual allegation in
the OLR's complaint was accurate and admitted. He further
admitted and stipulated to his commission of each of the four
counts of misconduct alleged in the complaint. The parties
stipulated an appropriate level of discipline to impose in
response to Attorney Hudec's misconduct was a public reprimand.
2
SCR 20:3.1(a)(3) states that in representing a client, a
lawyer shall not "file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another."
3
SCR 20:3.5(b) states a lawyer shall not:
[C]ommunicate ex parte with such a person during
the proceeding unless authorized to do so by law or
court order or for scheduling purposes if permitted by
the court. If communication between a lawyer and
judge has occurred in order to schedule the matter,
the lawyer involved shall promptly notify the lawyer
for the other party or the other party, if
unrepresented, of such communication; . . . .
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No. 2013AP360-D
¶19 The referee issued her findings of fact, conclusions
of law, and recommendation for discipline on December 4, 2013.
The referee adopted the stipulation filed by the parties and
found that the OLR had met its burden of proof with respect to
the four counts of misconduct alleged in the complaint. The
referee also agreed with the parties that a public reprimand was
an appropriate sanction. While the referee noted that Attorney
Hudec has previously received three private reprimands and one
public reprimand, the referee pointed out that the current
disciplinary complaint was based upon a referral to the OLR from
the court of appeals, District II, and there was no direct
reference in the record as to whether Attorney Hudec's conduct
or deficiencies harmed his client. The referee also recommended
that Attorney Hudec should be assessed the full costs of the
proceeding.
¶20 A referee's findings of fact are affirmed unless
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. 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.
¶21 There is no showing that any of the referee's findings
of fact are erroneous. Accordingly, we adopt them. We also
agree with the referee's conclusions of law that Attorney Hudec
violated the supreme court rules set forth above. We further
agree with the referee that a public reprimand is an appropriate
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No. 2013AP360-D
sanction for the misconduct at issue here. Finally, we agree
with the referee that Attorney Hudec should be required to pay
the full costs of the proceeding, which are $1,625.14.
¶22 IT IS ORDERED that Patrick J. Hudec is publicly
reprimanded for professional misconduct.
¶23 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Patrick J. Hudec shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
¶24 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2013AP360-D.ssa
¶25 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I would
not adopt the stipulation that imposes a public reprimand. The
court of appeals characterized Attorney Hudec's conduct as
demonstrating "a pattern of gross and inexcusable inattention to
details." Attorney Hudec has in the past been the subject of
three private reprimands and one public reprimand. A public
reprimand in the present case does not comport with the
violation of the Code or the concept of progressive discipline.
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No. 2013AP360-D.ssa
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