2014 WI 75
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP931-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Richard W. Voss,
Respondent-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST VOSS
OPINION FILED: July 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the complainant-appellant, there were briefs by Julie
M. Spoke and the Office of Lawyer Regulation.
For the respondent-respondent, there was a brief by Richard
W. Voss and Voss Law Office, Rhinelander.
2014 WI 75
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP931-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Appellant,
JUL 18, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Richard W. Voss,
Respondent-Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. The Office of Lawyer Regulation (OLR)
appeals from that portion of a referee's report recommending
that the license of Attorney Richard W. Voss to practice law in
Wisconsin be suspended for one year as a sanction for
professional misconduct. The OLR argues that Attorney Voss's
license to practice law should be revoked.
¶2 Upon careful review of this matter, we conclude that
an eighteen-month suspension of Attorney Voss's license to
No. 2012AP931-D
practice law is an appropriate sanction for his misconduct. We
agree with the referee that Attorney Voss should be ordered to
make restitution to his former client's estate in the amount of
$2,077.18 and that he be ordered to pay the full costs of this
proceeding, which are $4,625.48 as of April 2, 2014. We further
concur with the referee's recommendation that, as a condition of
the reinstatement of his license to practice law in Wisconsin,
Attorney Voss be required to demonstrate that he has in place a
proper trust account consistent with supreme court rules.
¶3 Attorney Voss was admitted to practice law in
Wisconsin in 1976, and practices in Rhinelander. In 2004
Attorney Voss was privately reprimanded for violating Supreme
Court Rules (SCRs) 20:1.1 and 20:1.4(a). Private Reprimand,
No. 2004-24.1 In 2006 Attorney Voss received a public reprimand
for various trust account violations. Public Reprimand of
Richard W. Voss, No. 2006-7.
¶4 On May 2, 2012, the OLR filed a complaint alleging 11
counts of misconduct arising out of Attorney Voss's work as the
court-appointed guardian of J.K., who is now deceased. In
September of 1987, Attorney Voss was appointed by the Oneida
County circuit court as the guardian of the person and estate of
J.K. J.K. suffered from mental illness, complicated by alcohol
abuse and diabetes, requiring a long period of protective
1
The OLR's complaint cited Private Reprimand No. 2004-25,
but that matter involved criminal conduct by a lawyer, which
clearly does not fit the description of Attorney Voss's
misconduct. Private Reprimand No. 2004-24 involved violations
of SCRs 20:1.1 and 20:1.4(a).
2
No. 2012AP931-D
placement. The circuit court never approved or authorized any
guardianship fees to be paid to Attorney Voss from J.K.'s funds.
¶5 Attorney Voss did not set up a separate guardianship
account to handle J.K.'s income and expenses. Instead, Attorney
Voss deposited J.K.'s monthly social security benefits in an
account at M&I Bank designated as his client trust account. The
account at M&I Bank is not an Interest on Lawyer Trust Accounts
(IOLTA) account but rather a personal checking account that does
not accrue interest. Attorney Voss also maintained a separate
business account at M&I Bank designated as a non-personal
account. Attorney Voss is responsible for recordkeeping for his
client trust account and is the sole person authorized to sign
checks.
¶6 From 1987 through 1990, J.K. resided in a private
facility and substantially all of his income was used to pay for
the costs of his care. In 1990 J.K. was moved to a facility run
by the Veterans Administration (VA). The VA did not require a
payment for J.K.'s room, board, and care. Attorney Voss made
regular disbursements to the VA for J.K.'s personal needs and
incidentals.
¶7 Between 1990 and 2008, Attorney Voss received social
security benefits on J.K.'s behalf totaling between $5,250 and
$7,848 annually. Between 1990 and 2008, Attorney Voss disbursed
no more than $4,320 per year to the VA on behalf of J.K. From
1991 until September of 2002, Attorney Voss made disbursements
to the VA for J.K.'s personal needs and incidentals in the
amount of $70 per week. In September of 2002, Attorney Voss
3
No. 2012AP931-D
increased the disbursement to $80 per week. In October of 2007,
Attorney Voss ceased to make any payments to the VA for J.K.'s
personal needs and incidentals.
¶8 Attorney Voss should have accumulated at least
$1,767.60 per year attributable to J.K. in his trust account
over and above the amounts disbursed for J.K. In some years the
trust account should have accumulated over $3,000 more than was
disbursed on J.K.'s behalf.
¶9 In October of 2007, J.K.'s social worker suggested
that Attorney Voss establish a burial fund for J.K. Attorney
Voss opened a separate account at People's State Bank in
December of 2007. The account was titled "[J.J.K.] Richard [W.]
Voss, Guardian" to be held as a burial account. Attorney Voss
transferred $5,690 from his trust account into J.K.'s burial
account.
¶10 Between 1987 and 1996, Attorney Voss filed annual
accountings with the Oneida County circuit court regarding his
guardianship for J.K. In January of 1998, the circuit court
entered an order waiving any further annual accountings for
J.K., finding, based on Attorney Voss's representations, that it
was unlikely J.K. would have an estate worth more than $1,000 in
the foreseeable future. After 1998, Attorney Voss periodically
filed affidavits with the circuit court advising the court that
J.K.'s assets remained under $1,000 in the preceding calendar
year. Attorney Voss filed no further accounting until 2008.
¶11 On April 16, 2008, Attorney Voss filed an annual
accounting with the Oneida County circuit court showing that
4
No. 2012AP931-D
J.K. had assets of $10,102.06 as of December 31, 2007.
Following J.K.'s death, on December 8, 2008, Attorney Voss filed
a summary assignment petition showing J.K.'s assets totaling
$14,145.93.
¶12 Since the circuit court had believed that J.K.'s
assets had not exceeded $1,000 in any calendar year, the court
requested an explanation from Attorney Voss regarding J.K.'s
assets. At the direction of the circuit court, Oneida County
Register in Probate Susan Ohman also began communicating with
Attorney Voss asking for information about J.K.'s assets.
¶13 The circuit court subsequently obtained records from
the VA for all amounts paid to it on J.K.'s behalf and obtained
records from the Social Security Administration to confirm
J.K.'s income from 1990 until the date of his death. Ms. Ohman
performed a "rough fraud audit" and determined there was more
than $40,000 in income attributable to J.K. that Attorney Voss
had not accounted for that should have been in Attorney Voss's
client trust account. Ultimately, the circuit court concluded
that Attorney Voss had not accounted for $46,103.88 of J.K.'s
funds.
¶14 The circuit court removed Attorney Voss as a special
administrator of J.K.'s estate and appointed former Register in
Probate Maxine Meyer as special administrator of the estate.
After demand was made by Meyer pursuant to Wis. Stat.
§ 943.20(1)(b) in October of 2009, Attorney Voss sent two checks
to Meyer to reimburse J.K.'s estate. The first check was in the
5
No. 2012AP931-D
amount of $44,501.88, and the second check was in the amount of
$1,602.
¶15 In correspondence dated August 14, 2009, Attorney Voss
told Ohman that he did not keep good track of what money was
going in and out of his trust account, that he did not maintain
separate trust account ledgers for each client, and that his
recordkeeping problems were compounded by the fact that client
monies of his brother, Attorney Frederick Voss, were also in his
trust account.
¶16 On September 11, 2009, during a meeting with Ohman and
a detective from the Oneida County sheriff's department,
Attorney Voss said that when he received a bankruptcy retainer
fee, he would deposit the client's retainer check into his
business account and then, when he paid the bankruptcy filing
fee, he would pay it out of his trust account using J.K.'s
money.
¶17 In December of 2009, Oneida County Circuit Court
Judges Mark A. Mangerson and Patrick F. O'Melia filed a
grievance with the OLR, asking for an investigation into
Attorney Voss's conduct while he was serving as the guardian of
the person and estate of J.K. On January 28, 2010, the OLR sent
Attorney Voss a letter providing notice of the investigation
into the J.K. matter. The OLR requested certain information and
records, including copies of Attorney Voss's banking and trust
account records for the time period he served as J.K.'s
guardian. Attorney Voss was unable to provide the OLR with
copies of all bank statements, cancelled checks or imaged
6
No. 2012AP931-D
checks, and deposit slips and items he was required to maintain
pursuant to SCR 20:1.15.
¶18 Although Attorney Voss provided the OLR with a
transaction register for the requested time period, the register
failed to maintain a running balance, failed to document all
deposits and disbursements, failed to identify the client matter
regarding all deposits and disbursements, and included
inaccurate entries.
¶19 In a March 9, 2010 letter sent in response to the
OLR's investigative request that he describe in detail his
procedures for managing J.K.'s funds, Attorney Voss described a
process that looked at the overall balance in his trust account
compared to the overall disbursements, but that did not include
recording specific deposits and disbursements for J.K.
¶20 In a letter to the OLR dated August 22, 2011, Attorney
Voss explained his firm's procedures for handling client money
between January 1, 2004, and October 31, 2008. He said:
[M]ost of the money which was deposited into the
client trust account was for work done on bankruptcy
cases and a flat fee was agreed upon between myself
and the client. That fee included an amount to be
paid for filing fees and an amount for the work to be
done and was payable in full before the work would be
done due to the fact that most bankruptcy clients are
not good risks to pay attorney fees after their case
is filed. The funds would be deposited in the amount
necessary to pay the filing fees which was done in
every bankruptcy case and then the remainder would be
transferred at the time of deposit and denominated as
cash in many instances and deposited into my personal
account. I was aware of what cases were being filed
and made sure the amount necessary to pay the fees was
in the account. At no time was there an insufficient
7
No. 2012AP931-D
amount to pay any filing fees received from any
clients.
¶21 Attorney Voss also stated that he used two credit
cards to pay his clients' bankruptcy filing fees and that he
would look at the amounts forwarded to the U.S. Bankruptcy Court
during a billing period and would then issue a check to the
credit card company for payment of those amounts.
¶22 Attorney Voss told the OLR that Frederick J. Voss was
his brother and rented space from him but Frederick was not a
partner, employee, or member of the firm and received no money
from Attorney Voss. However, Frederick Voss paid some of the
office expenses. Attorney Voss and his brother practiced from
the same location, used the same letterhead, which stated "Voss
Law Office," and used both names on the letterhead without
indicating that Frederick Voss was not an employee, associate,
partner, or member of the law firm. Funds received by
Frederick J. Voss relating to his representation of clients were
deposited and disbursed from the Voss Law Office trust account.
¶23 The OLR created a transaction register and client
ledger reconstructing activity in Attorney Voss's client trust
account between January 1, 2004, and October 31, 2008. The
OLR's reconstructed trust account ledger showed that Attorney
Voss's trust account was repeatedly and chronically out of trust
and but for J.K.'s funds in the account, the account would have
been overdrawn on numerous occasions. The OLR's audit of
Attorney Voss's trust account also revealed numerous instances
where Attorney Voss disbursed funds from the trust account,
8
No. 2012AP931-D
including bankruptcy filing fees, before he deposited the source
of those funds for disbursement, thereby at least temporarily
using one client's funds for the benefit of another client.
¶24 The recreation of Attorney Voss's trust account showed
that, during the period of time he served as J.K.'s guardian,
Attorney Voss converted at least $48,791.73 of J.K.'s funds
either for his own use or to cover expenditures for other client
matters. Since Attorney Voss repaid $46,103.88 to J.K.'s
estate, the OLR's audit revealed that Attorney Voss still owes
$2,077.18 in restitution to J.K.'s estate.
¶25 The OLR's complaint alleged the following counts of
misconduct:
[COUNT ONE] By failing to safeguard and hold in
trust client and third party funds and by converting
client funds to his own use or for the use of other
clients and third parties, Voss violated former
SCR 20:1.15(a),2 in effect prior to July 1, 2004,
2
SCR 20:1.15(a) (effective prior to July 1, 2004) provided:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
third persons that is in the lawyer's possession in
connection with a representation or when acting in a
fiduciary capacity. Funds held in connection with a
representation or in a fiduciary capacity include
funds held as trustee, agent, guardian, personal
representative of an estate, or otherwise. All funds
of clients and third persons paid to a lawyer or law
firm shall be deposited in one or more identifiable
trust accounts as provided in paragraph (c). The
trust account shall be maintained in a bank, savings
bank, trust company, credit union, savings and loan
association or other investment institution authorized
to do business and located in Wisconsin. The trust
account shall be clearly designated as "Client's
Account" or "Trust Account" or words of similar
9
No. 2012AP931-D
current SCR 20:1.15(b)(1),3 in effect as of July 1,
2004, and SCR 20:8.4(c).4
[COUNT TWO] By, at such time as [J.K.'s] expenses
ceased to equal his income, failing to hold [J.K.'s]
assets in a separate fiduciary account or to seek the
court's guidance as to whether he should hold [J.K.'s]
assets in a separate fiduciary account, Voss violated
import. No funds belonging to the lawyer or law firm,
except funds reasonably sufficient to pay or avoid
imposition of account service charges, may be
deposited in such an account. Unless the client
otherwise directs in writing, securities in bearer
form shall be kept by the attorney in a safe deposit
box in a bank, savings bank, trust company, credit
union, savings and loan association or other
investment institution authorized to do business and
located in Wisconsin. The safe deposit box shall be
clearly designated as "Client's Account" or "Trust
Account" or words of similar import. Other property
of a client or third person shall be identified as
such and appropriately safeguarded. If a lawyer also
licensed in another state is entrusted with funds or
property in connection with an out-of-state
representation, this provision shall not supersede the
trust account rules of the other state.
3
SCR 20:1.15(b)(1) (effective July 1, 2004) provides:
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.
4
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
10
No. 2012AP931-D
former SCR 20:1.15(c)(2),5 in effect prior to July 1,
2004, and former SCR 20:1.15(c)(2),6 in effect between
July 1, 2004 and December 31, 2009.
5
SCR 20:1.15(c)(2) (effective prior to July 1, 2004)
provided:
A lawyer shall deposit all client funds in the
account specified in paragraph (1) unless they are
deposited in any of the following:
a. A separate interest-bearing trust account for
the particular client or client's matter, the interest
on which shall be paid to the client, net of any
transaction costs.
b. A pooled interest-bearing trust account with
sub-accounting by the financial institution, the
lawyer or the law firm that will provide for
computation of interest earned by each client's funds
and the payment thereof to the client, net of any
transaction costs.
c. An interest-generating investment vehicle
selected by the client and designated in specific
written instructions from the client or authorized by
the court or other tribunal, on which income shall be
paid to the client or as directed by the court or
other tribunal, net of any transaction costs.
cg. An income-generating investment vehicle
selected by the lawyer and approved by a court where
the lawyer serves as guardian for a ward, under
chs. 880 and 881, stats.
cm. An income-generating investment vehicle
selected by the lawyer to protect and maximize the
return on funds in a bankruptcy estate, which
investment vehicle is approved by the trustee in
bankruptcy and by a bankruptcy court order, consistent
with 11 USC 345.
d. A demand deposit or other non-interest-
bearing account for funds that are neither nominal in
amount nor expected to be held for a short term,
provided the client specifically so directs.
11
No. 2012AP931-D
[COUNT THREE] By knowingly making
misrepresentations to the Oneida County Circuit Court
regarding: (i) [J.K.'s] assets; (ii) Voss' handling
of [J.K.'s] assets; and (iii) that he represented
6
SCR 20:1.15(c)(2) (effective from July 1, 2004 to
December 31, 2009) provided:
A lawyer shall deposit all client funds in the
account specified in par. (1) unless the funds are
deposited in any of the following:
a. a separate interest-bearing trust account for
the particular client or client's matter, the interest
on which shall be paid to the client, less any
transaction costs;
b. a pooled interest-bearing trust account with
sub-accounting by the financial institution, the
lawyer, or the law firm that will provide for
computation of interest earned by each client's funds
and the payment of the interest to the client, less
any transaction costs;
c. an income-generating investment vehicle
selected by the client and designated in specific
written instructions from the client or authorized by
the court or other tribunal, on which income shall be
paid to the client or as directed by the court or
other tribunal, less any transaction costs;
d. an income-generating investment vehicle
selected by the lawyer and approved by a court for
guardianship funds if the lawyer serves as guardian
for a ward under chs. 880 and 881, stats.;
e. an income-generating investment vehicle
selected by the lawyer to protect and maximize the
return on funds in a bankruptcy estate, which
investment vehicle is approved by the trustee in
bankruptcy and by a bankruptcy court order, consistent
with 11 USC 345; or
f. a demand deposit or other non-interest-
bearing account for funds that are neither nominal in
amount nor expected to be held for a short term, if
the client specifically so approves.
12
No. 2012AP931-D
[J.K.] in the capacity as [J.K.'s] attorney with
regard to a 2005 Watts hearing, when Voss knew or
should have known that he was providing the court with
an inaccurate information or impression regarding the
same, and by failing to take reasonable steps to
correct misrepresentations previously made to the
court once Voss knew that he had made
misrepresentations, Voss violated former
SCR 20:3.3(a)(1) and (4),7 in effect prior to July 1,
2007, current SCR 20:3.3(a)(1) and (3),8 in effect as
of July 1, 2007, and SCR 20:8.4(c).
[COUNT FOUR] By depositing or authorizing others
to deposit advanced costs paid by clients in his
7
SCR 20:3.3(a)(1) and (4) (effective prior to July 1, 2007)
provided that a lawyer shall not knowingly:
(1) make a false statement of fact or law to a
tribunal;
. . . .
(4) offer evidence that the lawyer knows to be
false. If a lawyer has offered material evidence and
comes to know of its falsity, the lawyer shall take
reasonable remedial measures.
8
SCR 20:3.3(a)(1) and (3) (effective July 1, 2007) provides
that a lawyer shall not knowingly:
(1) 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;
. . . .
(3) offer evidence that the lawyer knows to be
false. If a lawyer, the lawyer's client, or a witness
called by the lawyer, has offered material evidence
and the lawyer comes to know of its falsity, the
lawyer shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.
A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter that the
lawyer reasonably believes is false.
13
No. 2012AP931-D
business or personal account, rather than his client
trust account, Voss violated former SCR 20:1.15(a), in
effect prior to July 1, 2004 and current
SCR 20:1.15(b)(1), in effect as of July 1, 2004.
[COUNT FIVE] By, after July 1, 2004, taking cash
withdrawals from his client trust account and by
taking cash from deposits to his client trust account,
or authorizing others to do so, Voss violated
SCR 20:1.15(e)(4)a.9
[COUNT SIX] By, after July 9, 2006: (i) failing
to maintain a pooled interest-bearing account; (ii)
failing to participate in the Interest on Trust
Accounts Program; and (iii) by depositing client and
third party funds that are nominal in amount and/or
intended to be held for a short period of time in a
non-interest bearing account, Voss violated former
SCR 20:1.15(c)(1),10 in effect as of July 1, 2004,
current SCR 20:1.15(c)(1),11 in effect as of January 1,
2010, and SCR 13.04.12
9
SCR 20:1.15(e)(4)a. provides that "[n]o disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"
10
SCR 20:1.15(c)(1) (effective July 1, 2004) provides:
A lawyer who receives client funds shall maintain
a pooled interest-bearing demand account for deposit
of client or 3rd-party funds that are:
a. nominal in amount or expected to be held for
a short period of time; or
b. not deposited in an account or investment
under SCR 20:1.15 (c) (2); or
c. not eligible for an account or investment
under SCR 20:1.15 (c) (2) because the client is a
corporation or organization not permitted by law to
maintain such an account or the terms of the account
are not consistent with a need to make funds available
without delay.
11
SCR 20:1.15(c)(1) (effective January 1, 2010) provides:
14
No. 2012AP931-D
[COUNT SEVEN] By, prior to July 1, 2004, failing
to maintain complete records of trust account funds
A lawyer or law firm who receives client or 3rd-
party funds that the lawyer or law firm determines to
be nominal in amount or that are expected to be held
for a short period of time such that the funds cannot
earn income for the benefit of the client or 3rd party
in excess of the costs to secure that income, shall
maintain a pooled interest-bearing or dividend-paying
draft trust account in an IOLTA participating
institution.
12
SCR 13.04 provides:
(1) An attorney shall participate in the program
as provided in SCR 20:1.15 unless:
(a) The attorney certifies on the annual trust
account statement filed with the state bar that:
1. Based on the attorney's current annual trust
account experience and information from the
institution in which the attorney deposits trust
funds, service charges on the account would equal or
exceed any interest generated; or
2. Because of the nature of the attorney's
practice, the attorney does not maintain a trust
account; or
(b) The board, on its own motion or upon
application from an attorney, grants a waiver from
participation in the program for good cause.
(2) The board may reimburse an attorney
incurring service charges on an account established
under SCR 20:1.15 (c) (1) if the charges are
reasonably and necessarily related to the attorney's
participation in the program.
(3) Refusal or neglect by an attorney to
participate in the program, except as provided under
sub. (1), constitutes professional misconduct and may
be grounds for disciplinary action under the rules
governing enforcement of attorneys professional
responsibility.
15
No. 2012AP931-D
and other property, by, after June 30, 2004 and before
July 1, 2007, failing to maintain a compliant
transaction register, client ledgers, ledger for
account fees and charges, deposit records, monthly
statements and reconciliation reports, and by, after
June 30, 2007, failing to maintain a compliant
transaction register, client ledgers, ledger for
account fees and charges, deposit records,
disbursement records, monthly statements and
reconciliation reports, Voss violated former
SCR 20:1.15(e),13 in effect prior to July 1, 2004,
13
SCR 20:1.15(e) (effective prior to July 1, 2004)
provided:
Complete records of trust account funds and other
trust property shall be kept by the lawyer and shall
be preserved for a period of at least six years after
termination of the representation. Complete records
shall include: (i) a cash receipts journal, listing
the sources and date of each receipt, (ii) a
disbursements journal, listing the date and payee of
each disbursement, with all disbursements being paid
by check, (iii) a subsidiary ledger containing a
separate page for each person or company for whom
funds have been received in trust, showing the date
and amount of each receipt, the date and amount of
each disbursement, and any unexpended balance, (iv) a
monthly schedule of the subsidiary ledger, indicating
the balance of each client's account at the end of
each month, (v) a determination of the cash balance
(checkbook balance) at the end of each month, taken
from the cash receipts and cash disbursement journals
and a reconciliation of the cash balance (checkbook
balance) with the balance indicated in the bank
statement, and (vi) monthly statements, including
canceled checks, vouchers or share drafts, and
duplicate deposit slips. A record of all property
other than cash which is held in trust for clients or
third persons, as required by paragraph (a) hereof,
shall also be maintained. All trust account records
shall be deemed to have public aspects as related to
the lawyer's fitness to practice.
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No. 2012AP931-D
former SCR 20:1.15(f)(1),14 in effect between July 1,
2004 and June 30, 2007, and current
15
SCR 20:1.15(f)(1), in effect as of July 1, 2007.
[COUNT EIGHT] By commingling personal funds or
funds belonging to the Voss Law Office in his client
trust account, Voss violated SCR 20:1.15(b)(3).16
[COUNT NINE] By disbursing from his trust account
the advanced payments of costs for clients, before
their filing fees had been paid to the court, Voss
violated SCR 20:1.15(b)(4).17
[COUNT TEN] By: (i) holding Frederick J. Voss out
as a partner, member, associate or employee of the
Voss Law Office; and (ii) allowing Frederick J. Voss
to hold himself out as a partner, member, associate or
14
SCR 20:1.15(f)(1) (effective between July 1, 2004 and
June 30, 2007) provided that "[c]omplete records of a trust
account that is a demand account shall include a transaction
register; individual client ledgers; a ledger for account fees
and charges, if law firm funds are held in the account pursuant
to sub. (b) (3); deposit records; disbursement records; monthly
statements; and reconciliation reports . . . ."
15
SCR 20:1.15(f)(1) (effective July 1, 2007) provides that
"[c]omplete records of a trust account that is a demand account
shall include a transaction register; individual client ledgers;
a ledger for account fees and charges, if law firm funds are
held in the account pursuant to sub. (b)(3); deposit records;
disbursement records; monthly statements; and reconciliation
reports . . . ."
16
SCR 20:1.15(b)(3) provides that "[n]o funds belonging to
the lawyer or law firm, except funds reasonably sufficient to
pay monthly account service charges, may be deposited or
retained in a trust account."
17
SCR 20:1.15(b)(4) provides that, "[e]xcept as provided in
par. (4m), unearned fees and advanced payments of fees shall be
held in trust until earned by the lawyer, and withdrawn pursuant
to sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the costs are
incurred.
17
No. 2012AP931-D
employee of the Voss Law Office, Voss violated
SCR 20:7.5(d).18
[COUNT ELEVEN] By making misrepresentations to
OLR during . . . the investigation of this matter,
Voss violated SCR 22.03(2) and (6),19 via
SCR 20:8.4(h).20
¶26 Attorney Voss filed an answer to the complaint on
May 29, 2012. Robert E. Kinney was originally appointed referee
18
SCR 20:7.5(d) provides that "[l]awyers may state or imply
that they practice in a partnership or other organization only
when that is the fact."
19
SCR 22.03(2) and (6) provides:
(2) 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.
. . . .
(6) 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.
20
SCR 20:8.4(h) provides that 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)."
18
No. 2012AP931-D
in this matter. On October 1, 2012, a motion for substitution
of referee was granted and John B. Murphy was appointed referee.
¶27 On May 9, 2013, a stipulation and no contest plea was
filed. In the stipulation, Attorney Voss withdrew his answer to
the complaint and pled no contest to the 11 counts of misconduct
as set forth in the complaint. The parties jointly requested
the referee to file a report with this court finding facts based
on Attorney Voss's no contest plea and asked the referee to
consider the issue of the appropriate sanction.
¶28 The referee filed his findings and recommendation on
September 5, 2013. Based on the stipulation and the facts set
forth in the OLR's complaint, the referee found that Attorney
Voss engaged in the 11 counts of misconduct alleged in
complaint.
¶29 As to the appropriate sanction, the referee said that
the OLR made a good case for revocation since Attorney Voss has
been disciplined previously for trust account offenses and, in
spite of that discipline, has persisted in not changing his law
office practices. The referee said, "Either Voss is incapable
of learning from his mistakes or simply indifferent to what the
Court or OLR thinks about how he runs his practice. Whatever
the case, strong action is needed to prevent future harm to
clients and the legal system." The referee further said that,
in addition to the trust account problems, Attorney Voss was
willing to mislead the court with misrepresentations and
fabrications. The referee went on to say:
19
No. 2012AP931-D
In spite of all of the above, it should be noted
that Voss did, upon request, repay [J.K.'s] estate for
the missing funds. Additionally, it appears that Voss
did not use these funds for his own personal gain and
that [J.K.] did not suffer directly from Voss'
misbehavior. Further, Voss ultimately "admitted" his
mistake by withdrawing his Answer and entering a no
contest plea to the allegations.
¶30 The referee said while he gave the OLR's request for
revocation careful consideration, he was not fully persuaded,
given the need for progressive discipline, that revocation was
required in this case. The referee recommended that Attorney
Voss's license to practice law be suspended for a period of one
year; that he be ordered to pay additional restitution of
$2,077.18 to J.K.'s estate; and that he be assessed the full
costs of this proceeding. The referee also recommended that
before he is allowed to reinstate his license, Attorney Voss be
required to demonstrate that he has in place a proper trust
account consistent with supreme court rules.
¶31 The OLR has appealed, arguing that revocation is the
appropriate sanction for Attorney Voss's misconduct. In support
of its argument, the OLR cites various cases including In re
Disciplinary Proceedings Against Krombach, 2005 WI 170,
286 Wis. 2d 589, 707 N.W.2d 146, In re Disciplinary Proceedings
Against Conmey, 2005 WI 166, 286 Wis. 2d 514, 706 N.W.2d 633,
and In re Disciplinary Proceedings Against Weigel, 2012 WI 124,
345 Wis. 2d 7, 823 N.W.2d 798. The OLR says that similar to the
Weigel case, it is not entirely clear here whether Attorney Voss
may or may not have misappropriated J.K.'s funds specifically
for his own personal use. The OLR says what is clear is that
20
No. 2012AP931-D
Attorney Voss systematically, during the time he acted as J.K.'s
guardian, robbed Peter to pay Paul by utilizing J.K.'s funds in
his trust account to either pay for other clients' bankruptcy
fees or potentially pay his own attorney fees or office expenses
through the years. The OLR says while Attorney Voss may not
have been proven to have engaged in an intentional scheme of
misappropriation, his behavior was, at a minimum, reckless.
¶32 The OLR notes that Attorney Voss has been sanctioned
by this court on two prior occasions and, as a result of his
public reprimand, was ordered to attend trust account school.
It says despite his previous discipline, Attorney Voss continued
to maintain a lackadaisical attitude about his trust account and
failed to maintain adequate trust account records. The OLR
argues that progressive discipline, in the form of revocation of
Attorney Voss's license, is warranted in this case.
¶33 Attorney Voss argues that revocation is not warranted
and that the sanction imposed should be no greater than the one-
year suspension recommended by the referee. Attorney Voss
admits that he paid some client fees from money in his trust
account that should have been attributable to J.K.'s account.
He says the amount of money incorrectly reported averaged about
$250 a month. He says:
Rather than characterize the behavior as reckless the
Respondent would submit that the behavior was
negligent to the extent that a more careful inspection
of the accounting system would have eliminated this
from happening. It is true that the Respondent should
have known what the true amount in the account should
be. Unfortunately, that was not the case. . . . The
21
No. 2012AP931-D
incremental amount of improperly transferring was not
sufficient at any time to make the Respondent believe
it was improper.
¶34 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.
¶35 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 Voss
violated all of the supreme court rules set forth above.
¶36 Revocation of an attorney's license to practice law is
the most severe sanction this court can impose, and is reserved
for the most egregious cases. While Attorney Voss's misconduct
is serious, we do not agree that it rises to the level of
warranting revocation. The cases cited by the OLR in support of
its argument that revocation is an appropriate sanction are
distinguishable. In Conmey, 286 Wis. 2d 514, and Krombach,
286 Wis. 2d 589, the attorneys made payments to themselves out
of trust funds. In this case the referee said it did not appear
that Attorney Voss used J.K.'s funds for his personal gain. In
Weigel, the attorney's trust account ran a deficit ranging from
$100,000 to $1,000,000 over a period of many years.
345 Wis. 2d 7, ¶8. The conduct here simply does not rise to
that level.
22
No. 2012AP931-D
¶37 In In Re Disciplinary Proceedings Against Raneda,
2012 WI 42, 340 Wis. 2d 273, 811 N.W.2d 412, this court imposed
a one-year suspension for 14 counts of misconduct, the majority
of which involved trust account violations. The attorney's
misconduct included diverting client funds to his own use. In
In Re Disciplinary Proceedings Against Biester, 2013 WI 85,
350 Wis. 2d 707, 838 N.W.2d 79, this court also imposed a one-
year suspension for 29 counts of misconduct, including
transferring large sums of money from the attorney's client
trust account to pay for the attorney's personal debts and
office expenses. We find Attorney Voss's situation to be more
closely akin to Raneda and Biester than to Weigel, Conmey or
Krombach, although because J.K. was a particularly vulnerable
client and Attorney Voss's misconduct with respect to his
handling of J.K.'s funds went on for a significant period of
time, a suspension slightly longer than the one imposed in
Raneda and Biester is appropriate.
¶38 Wisconsin does adhere to a system of progressive
discipline. Attorney Voss has been licensed to practice law in
Wisconsin for nearly four decades. His disciplinary history
consists of one private reprimand and one public reprimand.
After careful consideration, we conclude that an eighteen-month
suspension of his license to practice law is an appropriate
sanction. We agree with the referee that Attorney Voss should
be required to pay additional restitution in the amount of
$2,077.18 to J.K.'s estate and that he be assessed the full
costs of this proceeding. We further agree with the referee
23
No. 2012AP931-D
that, as a condition of the reinstatement of his license,
Attorney Voss be required to demonstrate that he has in place a
proper trust account consistent with supreme court rules.
¶39 IT IS ORDERED that the license of Richard W. Voss to
practice law in Wisconsin is suspended for a period of eighteen
months, effective August 22, 2014.
¶40 IT IS FURTHER ORDERED that Richard W. Voss be required
to pay restitution in the amount of $2,077.18 to the estate of
J.K.
¶41 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Richard W. Voss shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶42 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶43 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
¶44 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin,
Richard W. Voss be required to demonstrate that he has in place
a proper trust account consistent with supreme court rules.
¶45 IT IS FURTHER ORDERED that Richard W. Voss shall
comply with the provisions of SCR 22.26 concerning the duties of
an attorney whose license to practice law has been suspended.
24
No. 2012AP931-D
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