2014 WI 116
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1791-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Everett E. Wood, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Everett E. Wood,
Respondent.
DISCIPLINAARY PROCEEDINGS AGAINST WOOD
OPINION FILED: October 21, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 116
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1791-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Everett E. Wood, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
OCT 21, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Everett E. Wood,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On June 10, 2014, Referee James J.
Winiarski issued a report recommending that Attorney Everett E.
Wood's license to practice law in Wisconsin be suspended for 90
days for professional misconduct, as recommended in a
stipulation executed by the Office of Lawyer Regulation (OLR)
and Attorney Wood. The referee also recommended that Attorney
Wood be required to pay the full costs of this proceeding, which
are $2,191.38 as of June 30, 2014.
No. 2013AP1791-D
¶2 We agree that Attorney Wood's professional misconduct
warrants a 90-day suspension. We also agree that Attorney Wood
should be ordered to pay the full costs of the proceeding.
¶3 Attorney Wood was admitted to the State Bar of
Wisconsin on June 17, 1992. He resides in Richfield, Wisconsin.
Effective March 1, 2013, Attorney Wood's license to practice law
was suspended for a period of six months for 28 counts of
misconduct committed in seven client matters. That misconduct
involved lack of diligence, lack of communication, failure to
hold funds in trust, and failure to cooperate with the OLR's
investigation. In re Disciplinary Proceedings Against Wood,
2013 WI 11, 345 Wis. 2d 279, 825 N.W.2d 473. Attorney Wood's
license remains suspended; he has not petitioned for
reinstatement.
¶4 All the allegations of misconduct in the matter now
before the court stem from Attorney Wood's representation of
S.H.
¶5 In January 2010, S.H. hired Attorney Wood to represent
S.H. and his wife in a dispute with a construction company,
GSI General, Inc. (GSI). In October of 2010, S.H. gave Attorney
Wood $400 for future litigation expenses or costs. Attorney
Wood agreed to represent S.H. for a one-third contingency fee.
Attorney Wood did not provide S.H. with a written fee agreement.
Attorney Wood did not hold the entire $400 in trust until
expended. Attorney Wood did not maintain individual client
registers or a transaction register for his trust account.
2
No. 2013AP1791-D
¶6 In March of 2011, Attorney Wood filed suit against GSI
on behalf of S.H. In October of 2011, S.H. and GSI settled the
lawsuit after mediation. GSI agreed to pay S.H. as follows:
$6,000 on or before February 1, 2012; $2,300 on or before
May 1, 2012; and $1,700 on or before October 1, 2012.
¶7 S.H. departed before the negotiation was complete, so
Attorney Wood signed the agreement on S.H.'s behalf. Attorney
Wood did not send a copy of the settlement agreement to S.H.
¶8 On or around October 12, 2011, the mediator sent a
bill for $385 to Attorney Wood. Attorney Wood did not timely
pay this bill, despite having received $400 from S.H. towards
costs.
¶9 On February 1, 2012, GSI's attorney issued a check for
$6,000 payable to Attorney Wood's trust account. The next day,
Attorney Wood deposited $6,000 into his trust account but did
not promptly notify S.H., in writing, that Attorney Wood had
received GSI's initial settlement payment.
¶10 On February 3, 2012, Attorney Wood withdrew $1,866
from his trust account in a cash transaction, presumably
reflecting his fee portion of the first settlement payment, but
did not provide S.H. with a settlement accounting at the time.
¶11 In February 2012, S.H. called and emailed Attorney
Wood to inquire about the settlement payment but could not reach
him. Later that month, Attorney Wood made additional cash
withdrawals from his trust account. By that time, Attorney Wood
had spent $269 in filing fees and $64 serving the complaint out
of the $400. Therefore, $67 attributable to S.H. should have
3
No. 2013AP1791-D
remained in Attorney Wood's trust account, but his trust account
balance was below $36 for multiple days in February 2012.
¶12 On March 1, 2012, S.H. filed a grievance against
Attorney Wood. On or about March 13, 2012, Attorney Wood sent
S.H. a cashier's check for $4,133, representing S.H.'s portion
of the first settlement payment together with a refund of the
$400 reflecting pre-paid expenses. Attorney Wood also provided
a settlement statement.
¶13 On March 21, 2012, the OLR wrote to Attorney Wood,
requiring his written response to the grievance by April 13,
2012. Attorney Wood did not respond to this inquiry or to
several subsequent requests for information.
¶14 On May 3, 2012, GSI's attorney issued a check for
$2,300 payable to Attorney Wood's trust account. The next day,
Attorney Wood deposited these funds into his trust account. On
May 7, 2012, Attorney Wood advised S.H. by email that he had
received the second payment.
¶15 On May 8, 2012, Attorney Wood withdrew $766 from his
trust account. On May 10, 2012, Attorney Wood withdrew another
$1,544 from his trust account. That same day, he sent S.H. a
cashier's check for $1,534, representing S.H.'s portion of the
second payment.
¶16 On May 11, 2012, the OLR received a response from
Attorney Wood, partially responsive to its investigative
request. However, Attorney Wood then failed to respond to
follow-up requests for more information until the OLR moved this
4
No. 2013AP1791-D
court for an order temporarily suspending Attorney Wood's
Wisconsin law license for non-cooperation.
¶17 On August 12, 2013, the OLR filed a complaint alleging
that Attorney Wood had engaged in seven counts of misconduct
based on his representation of S.H. On or about February 13,
2014, following the filing of an answer and the appointment of
the referee, the parties executed a stipulation and no contest
plea, pursuant to which Attorney Wood pled "no contest" to the
counts alleged and agreed that the allegations of the complaint,
as amended in the stipulation, could be used as a factual basis
for a determination of his misconduct. Both the OLR and
Attorney Wood agreed that a 90-day suspension was appropriate.
¶18 As part of the stipulation between the parties,
Attorney Wood noted the following:
that the arrangement between S.H. and Attorney Wood
permitted S.H. to elect the billing method (either
hourly or contingent) once it was known if they would
obtain attorney fees from the defendant;
that the mediator's bill was eventually paid;
that S.H. was informed of the settlement accounting in
detail, knew that the check was received and of the
amount he was to receive, and failed to return the
disbursement register that was sent to him confirming
receipt of funds and approving disbursement to him per
his selected billing manner;
5
No. 2013AP1791-D
that after February 2012, Attorney Wood did not
receive further communication from S.H. until early
March 2012;
that Attorney Wood sent S.H. a check for $4,133 after
receiving confirmation that S.H. had elected a
contingency billing method; and
that Attorney Wood responded to the OLR's April 18,
2012 letter, although not timely.
¶19 The referee afforded both parties the opportunity for
further briefing and directed the parties to address the
appropriate effective date for discipline and whether Attorney
Wood had sought reinstatement in relation to his prior
suspension.
¶20 The referee reviewed the complaint and stipulation and
other filings of the parties and concluded that Attorney Wood
committed the seven counts of misconduct alleged in the
complaint. Specifically, the complaint alleged, the parties
stipulated, and the referee concluded:
[Count One] By failing to provide his client,
[S.H.], a written fee agreement setting forth the
terms of their contingent fee arrangement and to
obtain his signature thereon, [Attorney] Wood violated
SCR 20:1.5(c).1
1
Supreme Court Rule (SCR) 20:1.5(c) provides:
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by
par. (d) or other law. A contingent fee agreement
shall be in a writing signed by the client, and shall
state the method by which the fee is to be determined,
(continued)
6
No. 2013AP1791-D
[Count Two] By failing to keep [S.H.] informed
about the status of the settlement payment and by
failing to respond to [S.H.'s] requests for
information about the status of the settlement funds
that [S.H.] was due, [Attorney] Wood violated
SCR 20:1.4(a)(3) and (4).2
[Count Three] By failing to hold his client's
settlement funds in trust from the time that he
received the funds until he disbursed the funds to his
client, [Attorney] Wood violated SCR 20:1.15(b).3
including the percentage or percentages that shall
accrue to the lawyer in the event of settlement, trial
or appeal; litigation and other expenses to be
deducted from the recovery; and whether such expenses
are to be deducted before or after the contingent fee
is calculated. The agreement must clearly notify the
client of any expenses for which the client will be
liable whether or not the client is the prevailing
party. Upon conclusion of a contingent fee matter, the
lawyer shall provide the client with a written
statement stating the outcome of the matter and if
there is a recovery, showing the remittance to the
client and the method of its determination.
2
SCR 20:1.4(a)(3) and (4) provide, respectively, that a
lawyer shall "keep the client reasonably informed about the
status of the matter" and "promptly comply with reasonable
requests by the client for information."
3
The OLR's complaint and the referee's report both quote
only subsection (b)(1) of this rule in regards to this count of
misconduct. For our purposes here, we follow suit and therefore
consider this count (Count Three) to be in violation of
SCR 20:1.15(b)(1), which 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.
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No. 2013AP1791-D
[Count Four] By failing to hold in trust the
$400 advanced to him by his client for payment of
anticipated costs, [Attorney] Wood violated
SCR 20:1.15(b)(4).4
[Count Five] By withdrawing funds from his
client trust account via teller cash transactions,
[Attorney] Wood violated SCR 20:1.15(e)(4)a.5
[Count Six] By failing to maintain and preserve
complete records of funds he held in trust, including
a transaction register and individual client ledgers,
[Attorney] Wood violated SCR 20:1.15(e)(6).6
[Count Seven] By failing to respond to the
[S.H.] grievance within 20 days of receiving notice
that his formal written response was required,
[Attorney] Wood violated SCR 22.03(2),7 enforceable via
4
SCR 20:1.15(b)(4) provides:
Except 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.
5
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.'"
6
SCR 20:1.15(e)(6) provides that "[a] lawyer shall maintain
complete records of trust account funds and other trust property
and shall preserve those records for at least 6 years after the
date of termination of the representation."
7
SCR 22.03(2) provides:
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
(continued)
8
No. 2013AP1791-D
SCR 20:8.4(h).8 In addition, by delaying his response
to OLR's request for additional information until
compelled by an order to show cause issued by the
Supreme Court, [Attorney] Wood violated SCR 22.03(6),9
enforceable via SCR 20:8.4(h).
¶21 The referee then considered appropriate discipline,
identifying the factors considered in determining discipline for
professional misconduct, citing In re Disciplinary Proceedings
Against Carroll, 2001 WI 130, ¶40, 248 Wis. 2d 662,
636 N.W.2d 718, as well as the ABA standards for discipline.
The referee noted that Attorney Wood had recently received a
six-month suspension for 28 counts of misconduct involving lack
of diligence, lack of communication with clients, failure to
hold client funds in trust, and failure to cooperate with the
OLR's investigation. The referee observed that Attorney Wood's
misconduct in the instant matter again involves failure to keep
a client informed of the status of his case, trust account
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.
8
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)."
9
SCR 22.03(6) provides that "[i]n 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."
9
No. 2013AP1791-D
violations, and failure to cooperate in an OLR investigation, in
addition to a failure to have a written fee agreement with a
client. The referee stated:
I am troubled by the fact that Attorney Wood is
again involved in an attorney disciplinary proceeding
wherein there is lack of communication with a client,
failure to hold funds in trust and failure to
cooperate with an OLR investigation. This is an
unacceptable pattern of misconduct by Attorney Wood.
¶22 The referee noted that the misconduct in this case
occurred after the misconduct in Attorney Wood's prior
disciplinary proceeding, but acknowledged that much of it
occurred while that prior disciplinary proceeding was pending.
The referee was also troubled by Attorney Wood's failure to
cooperate in the OLR investigations in both the previous
disciplinary matter and this case.
¶23 On balance, the referee accepted the parties' joint
recommendation and recommended that Attorney Wood's law license
be suspended for a period of 90 days commencing the date of this
order. He further recommended that Attorney Wood be responsible
for all the costs of this disciplinary proceeding, which total
$2,191.38 as of June 30, 2014. No restitution is requested by
the OLR and none is recommended.
¶24 No appeal was filed, so we review this matter pursuant
to SCR 22.17(2). We will affirm the referee's findings of fact
unless they are clearly erroneous. We review conclusions of law
de novo. See In re Disciplinary Proceedings Against Eisenberg,
2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We may impose
whatever sanction we see fit, regardless of the referee's
10
No. 2013AP1791-D
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶25 Here, we agree with the referee that the allegations
in the OLR's complaint have been established and that Attorney
Wood engaged in the seven counts of misconduct alleged in the
complaint, as stipulated by the parties. We further agree that
a 90-day suspension is an appropriate sanction for Attorney
Wood's misconduct and we agree that he should pay the full costs
of the proceeding.
¶26 IT IS ORDERED that the license of Everett E. Wood to
practice law in Wisconsin is suspended for a period of 90 days,
effective the date of this order.
¶27 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Everett E. Wood shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶28 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Everett E. Wood shall comply with the
provisions of SCR 22.26 concerning the duties of any attorney
whose license to practice law has been suspended.
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No. 2013AP1791-D
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