2014 WI 115
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1622-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Joshua F. Stubbins, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Joshua F. Stubbins,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST STUBBINS
OPINION FILED: October 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 115
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1622-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Joshua F. Stubbins, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
OCT 14, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Joshua F. Stubbins,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. In this matter, we consider the petition
of Attorney Joshua F. Stubbins for the consensual revocation of
his license to practice law in Wisconsin pursuant to Supreme
Court Rule (SCR) 22.19. Attorney Stubbins is the subject of
ongoing investigations by the Office of Lawyer Regulation (OLR)
regarding four separate client matters. He acknowledges in his
petition that he cannot successfully defend against the
No. 2014AP1622-D
misconduct allegations that have arisen out of those
investigations.
¶2 Attorney Stubbins was admitted to the practice of law
in this state in January 2007. During the time period relevant
to the investigations, Attorney Stubbins was employed as an
associate attorney with a Milwaukee law firm, where he worked
primarily in the areas of defending consumer protection and
products liability claims. Attorney Stubbins has not previously
been the subject of professional discipline. On October 31,
2013, Attorney Stubbins's license was administratively suspended
for failure to pay bar dues and assessments and for failure to
submit an annual trust account certification. His license was
also subsequently suspended for failure to comply with mandatory
continuing legal education reporting requirements. His license
has remained administratively suspended up to the date of this
opinion.
¶3 The OLR's summary of the pending investigations
involving Attorney Stubbins that is attached to the petition for
consensual revocation indicates that the OLR has received three
grievances regarding four separate client matters. They will be
briefly summarized below.
¶4 The first investigation involves E.W., who was a
partner in the law firm where Attorney Stubbins worked. E.W.
requested that the firm represent him in foreclosing on a land
contract for a piece of real property that E.W. and his wife
owned. In approximately the spring of 2009, the firm assigned
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No. 2014AP1622-D
Attorney Stubbins to work on the foreclosure of the land
contract.
¶5 After Attorney Stubbins began working on the first
foreclosure, E.W. and his wife entered into a second land
contract for the property. The buyers under this second
contract also defaulted. Consequently, Attorney Stubbins was
directed to begin pursuing another foreclosure action against
these second buyers.
¶6 Attorney Stubbins was to have filed the foreclosure
complaints by October 2009. He did not do so, however, until
July 2011. During the intervening nearly two years, Attorney
Stubbins made multiple misrepresentations regarding the status
of the matters, including falsely suggesting that certain
actions, such as the service of a complaint, had been
accomplished. By his evasion of certain questions and his
misrepresentations, Attorney Stubbins led E.W. to believe that
foreclosure actions had been initiated and were proceeding.
Attorney Stubbins, however, filed the two foreclosure complaints
in July 2011 only after E.W. had made numerous requests for
information about the status of the foreclosure actions.
Shortly after the complaints were filed, E.W. terminated the law
firm's representation on both foreclosure matters and retained
other counsel.1
1
At some point during the time Attorney Stubbins was
working on the foreclosure matters, E.W. left the law firm.
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No. 2014AP1622-D
¶7 The OLR's investigation summary indicates that it is
investigating possible violations of SCRs 20:1.3, 20:1.4(a)(3),
20:1.4(a)(4), and 20:8.4(c) in this matter.
¶8 The second and third client representations at issue
have been addressed in a consolidated OLR investigation. Both
of those matters were brought to the OLR's attention by the
former general counsel of the law firm.
¶9 In the second client representation, the law firm
represented a company that was a holdover tenant on a commercial
lease. The firm assigned Attorney Stubbins to terminate the
tenancy, return the keys to the landlord, and assist with the
computation of damages connected to rent payments during the
holdover period. Attorney Stubbins failed to return the keys to
the landlord, which led to the client being held responsible for
seven months of double rent charges and the law firm having to
make a claim on its malpractice insurance policy. In addition
to not doing everything that he was tasked to do, Attorney
Stubbins also billed the client for work that he never
performed. This ultimately caused the law firm to reduce the
client's bill by $11,000.
¶10 In the third client representation, the firm assigned
Attorney Stubbins to defend an auto finance company against a
claim that the finance company had improperly seized the
plaintiff's vehicle and then had sold it at auction.
¶11 During the pretrial phase of the litigation, the
plaintiff's counsel served on Attorney Stubbins a notice of
deposition for a finance company representative. After the
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No. 2014AP1622-D
plaintiff's counsel sent a subsequent confirming letter,
Attorney Stubbins responded that he had lost the deposition
notice and would be unable to appear on the scheduled date. The
plaintiff's counsel thereafter scheduled the representative's
deposition for three separate subsequent dates. Each time
Attorney Stubbins falsely told plaintiff's counsel that the
client representative was ill and could not be deposed. On the
last occasion, Attorney Stubbins went so far as to claim that
the client representative was seriously ill and required kidney
dialysis. When the deposition finally took place, the client
representative testified that she had been unaware of the
previously scheduled dates for her deposition, that she did not
have any kidney-related health problems, and that she was not on
dialysis.
¶12 Attorney Stubbins also made other misrepresentations
to opposing counsel. For example, he told opposing counsel that
he would produce certain information in discovery but that he
could not do so yet because the client had not yet provided that
information to him. The client subsequently acknowledged that
it had provided the information at issue to Attorney Stubbins
prior to his statement regarding the inability to produce.
¶13 The circuit court denied a summary judgment motion
drafted by Attorney Stubbins and granted partial summary
judgment as to liability to the plaintiff, leaving only the
issue of damages to be tried. Attorney Stubbins failed to
advise his client of these rather significant developments in
the client's case.
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No. 2014AP1622-D
¶14 In addition to filing the partial summary judgment
motion, the plaintiff also filed a motion for sanctions against
Attorney Stubbins. The circuit court granted the motion, which
ultimately resulted in a sanction of $9,600 being paid by
Attorney Stubbins personally. Attorney Stubbins also failed to
advise his client that he had been sanctioned by the circuit
court.
¶15 Finally, Attorney Stubbins filed a notice of appeal
from the grant of partial summary judgment to the plaintiff
without having obtained the client's consent to do so. The
appeal was subsequently dismissed by the court of appeals.
¶16 The OLR states that for the second and third client
matters, it is investigating potential violations of
SCRs 20:1.3, 20:1.4(a), 20:3.4, 20:4.1(a), 20:8.4(c), and
20:8.4(f).
¶17 In the final client representation, the law firm
represented a defendant in a civil action. A mediation session
was scheduled, but Attorney Stubbins failed to advise the client
of that fact. He attended the mediation session on the client's
behalf without being accompanied by a client representative.
The mediation resulted in a written settlement agreement, which
Attorney Stubbins signed on the client's behalf even though he
had no authority from the client to enter into a settlement
agreement. Although Attorney Stubbins had a number of
subsequent email communications with the client over the next
couple of weeks, he failed to inform the client that the
mediation session had occurred and that he had entered into a
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No. 2014AP1622-D
settlement agreement on behalf of the client. Indeed, Attorney
Stubbins led the client to believe that the mediation had not
yet occurred.
¶18 Attorney Stubbins's employment with the law firm ended
several weeks after the mediation. The law firm and the client
subsequently learned that Attorney Stubbins had settled the case
without the client's knowledge or consent. The law firm was
able to re-open the case and to settle the matter at a second
mediation session on terms acceptable to the client.
¶19 The OLR states that potential violations arising out
of this matter include violations of SCRs 20:1.2, 20:1.3,
20:1.4(a), 20:4.1(a), 20:8.4(c), and 20:1.16(a)(2).
¶20 In its recommendation in support of Attorney
Stubbins's petition, the OLR acknowledges that Attorney Stubbins
has never been disciplined previously, but it emphasizes that
Attorney Stubbins repeatedly lied to clients, to opposing
counsel, and to members of his own law firm. He also engaged in
a course of billing that was misleading and unethical. The OLR
also points to two consensual revocation petitions that it
contends involved misconduct that was similar or proportionate
to the misconduct committed by Attorney Stubbins. See, e.g.,
In re Disciplinary Proceeding Against Erlandson, 2005 WI 143,
286 Wis. 2d 53, 704 N.W.2d 910 (granting consensual revocation
petition involving allegations of ten potential violations);
In re Disciplinary Proceedings Against Whitnall, 2003 WI 146,
267 Wis. 2d 28, 673 N.W.2d 674 (granting consensual revocation
petition involving six potential ethical violations). The OLR
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No. 2014AP1622-D
asserts that Attorney Stubbins's behavior was a reflection of
his character and demonstrates that he is not fit to engage in
the practice of law in Wisconsin.
¶21 The OLR further states that it is not seeking
restitution for any of Attorney Stubbins's misconduct. While it
did find evidence that Attorney Stubbins had overbilled a client
in one of the four matters, there was no evidence that Attorney
Stubbins himself had ever been in possession or control of
client funds, and the law firm subsequently reduced the client's
bill.
¶22 As noted above, Attorney Stubbins's petition states
that he cannot successfully defend himself against the
misconduct allegations that have arisen from the OLR's
investigations. In the petition Attorney Stubbins asserts that
he is freely, voluntarily, and knowingly (1) giving up his right
to contest the OLR's allegations of misconduct and (2) asking
for the revocation of his license to practice law in this state.
He also acknowledges that he has the right to retain counsel in
this matter, but states that he has chosen to represent himself.
Finally, Attorney Stubbins states that he is aware of the
consequences of the revocation of his license, including his
obligation to follow the requirements of SCR 22.26 and the need
to complete the formal reinstatement process outlined in
SCRs 22.29 through 22.33 in the event that he would ever seek
the reinstatement of his license.
¶23 After reviewing the petition, the OLR's summary of
misconduct allegations under investigation, and the OLR's
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No. 2014AP1622-D
recommendation, we conclude that the petition should be granted.
As shown by the OLR's summary of its investigations, Attorney
Stubbins's repeated misrepresentations to his clients, to his
law firm, and to opposing counsel; his billing for work that he
never performed; his lack of diligence; and his multiple
decisions to take legally significant actions (e.g., filing an
appeal, settling a lawsuit, etc.) on behalf of his clients
without their knowledge or consent demonstrates that Attorney
Stubbins does not possess the necessary character to hold a
license to practice law in this state. These were not one or
two isolated instances, but rather a pattern of deceitful
statements and unethical conduct.
¶24 Consistent with the OLR's recommendation, we do not
impose any restitution obligation on Attorney Stubbins. While
his conduct certainly harmed his clients, there is not a proper
basis in this matter for an order requiring him to return money
or property that he received from his clients.
¶25 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶26 IT IS FURTHER ORDERED that the license of Joshua F.
Stubbins is revoked, effective the date of this order.
¶27 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Joshua F. Stubbins 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.
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No. 2014AP1622-D
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