2015 WI 2
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP505-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Emory H. Booker, III, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Emory H. Booker, III,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BOOKER
OPINION FILED: January 16, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 2
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP505-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Emory H. Booker, III, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JAN 16, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Emory H. Booker, III,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. We review the report of the referee,
Hannah C. Dugan, recommending that the court: (1) revoke the
Wisconsin law license of Attorney Emory H. Booker, III; (2)
require Attorney Booker to pay a total of approximately $2,900
in restitution, divided among ten former clients; and (3)
require Attorney Booker to pay the full costs of this
disciplinary proceeding, which total $14,947.80 as of August 12,
No. 2013AP505-D
2014. Because no appeal has been filed in this matter, our
review proceeds pursuant to Supreme Court Rule (SCR) 22.17(2).
¶2 For the reasons explained below, we determine that
Attorney Booker has admitted by default the allegations in the
Office of Lawyer Regulation's (OLR) complaint. We therefore
adopt the referee's findings of fact and conclusions of law. We
agree with the referee that Attorney Booker's license to
practice law in Wisconsin should be revoked. We also agree with
the referee that Attorney Booker should be required to pay the
entire costs of this proceeding. We decline to order
restitution for reasons explained below.
¶3 Attorney Booker was admitted to the Wisconsin State
Bar in 2000. He practiced in the Milwaukee area. His law
license is administratively suspended for a number of reasons,
including noncompliance with continuing legal education
requirements.
¶4 Although Attorney Booker does not have a disciplinary
history in Wisconsin, he has had considerable practice problems
in the United States Bankruptcy Court for the Eastern District
of Wisconsin, where he practiced extensively. We take judicial
notice of the following events in that court. On December 20,
2011, the Eastern District bankruptcy court issued an order
barring Attorney Booker from filing any further bankruptcy
petitions in that court until he had demonstrated to the judges
that he had obtained 15 hours of continuing legal education in
the area of consumer bankruptcy practice. See In re Diane
Jackson, No. 12-25456, order at 8 (Bankr. E.D. Wis. June 20,
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No. 2013AP505-D
2012). Attorney Booker satisfied this legal education
requirement (id. at 8-9), but doing so did not solve his
practice difficulties. In 2012, the Eastern District bankruptcy
court penalized Attorney Booker $5,000 for his "clear and
consistent pattern or practice of violating" various sections of
the Federal Bankruptcy Code, the Federal Rules of Bankruptcy
Procedure, and the Eastern District bankruptcy court's local
rules. Id. at 73. Also in 2012, the Eastern District
bankruptcy court asked the Wisconsin Department of Justice to
investigate Attorney Booker's representation of debtors. The
Department of Justice did so and, in 2013, the State of
Wisconsin obtained an order and judgment against Attorney Booker
requiring him to pay $36,768 in damages, representing fees he
collected in bankruptcy cases in violation of the Federal
Bankruptcy Code. State of Wisconsin v. Emory H. Booker III,
12-CV-990, judgment and order (E.D. Wis. Aug. 21, 2013).
¶5 In March 2013, the OLR filed a complaint and then an
amended complaint in this matter. The amended complaint alleged
47 counts of misconduct.
¶6 In April 2013, after numerous unsuccessful attempts at
personal service, the OLR attempted to serve Attorney Booker by
sending, via certified mail, a copy of the amended complaint and
amended order to answer to Attorney Booker's last known office
address on file with the Wisconsin State Bar, as well as his
last two known residences. See SCR 22.13(1).
¶7 In May 2013, the OLR filed a motion for default
judgment against Attorney Booker. At the subsequent hearing on
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No. 2013AP505-D
this motion, Attorney Booker appeared and claimed that he never
received service of the OLR's pleadings, and that he only
learned of the default judgment hearing because the referee had
emailed her scheduling order to him, in addition to mailing it.
Attorney Booker provided a current mailing address, telephone
number, and email address. The referee denied the OLR's motion
for default judgment and gave Attorney Booker several weeks to
file an answer.
¶8 Attorney Booker filed an answer in which he denied
misconduct. During August through October 2013, Attorney Booker
appeared at three telephonic status conferences held by the
referee. In October 2013, Attorney Booker provided written
responses to the OLR's discovery requests. In early November
2013, Attorney Booker did not appear at a deposition scheduled
by the OLR, though there appears to have been initial confusion
about the time and place of the deposition, and the OLR
ultimately provided less than two full working days' notice of
the deposition.
¶9 The OLR moved again for the entry of a default
judgment. In an order filed November 18, 2013, the referee
recommended that this court strike Attorney Booker's answer and
declare him in default for providing "minimal information" in
response to the OLR's discovery requests, and for "fail[ing] to
attend a deposition and fail[ing] to attend two scheduled
telephonic conferences, or to respond or communicates [sic] in
any format to requests from the [OLR] or the referee." It is
unclear from the record whether Attorney Booker received notice
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No. 2013AP505-D
of the hearing that culminated in the referee's striking of his
answer and granting of default; the record lacks a copy of any
notice of the hearing, and the OLR's counsel informed the
referee at the hearing that he had not received a copy of any
order scheduling the hearing.
¶10 This court has cautioned in previous disciplinary
cases that the striking of a timely answer and the granting of a
default is a "drastic sanction" that may be used only when the
responding attorney has engaged in egregious or bad faith
conduct. In re Disciplinary Proceedings Against Kelly,
2012 WI 55, ¶22, 341 Wis. 2d 104, 814 N.W.2d 844. We have
instructed that it "is certainly the better practice" for
referees to include an explicit finding of egregious or bad
faith conduct in a default order. Id., ¶23. The referee in
this case did not do so.
¶11 We may nevertheless accept the factual allegations of
the OLR's amended complaint as true for purposes of this
proceeding if we determine that the referee properly struck
Attorney Booker's answer and found him in default. Id., ¶25.
To do so, we must determine that the referee implicitly found
Attorney Booker's conduct to be egregious or in bad faith, and
that the facts of record provide a reasonable basis for this
implicit finding. Id., ¶¶23-24.
¶12 Our review of the record showed that a question could
be raised as to whether the referee had a reasonable basis to
implicitly find that Attorney Booker engaged in egregious or bad
faith behavior that would justify the striking of his answer and
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No. 2013AP505-D
a finding of default. We therefore ordered the parties to file
written positions on this issue with the court. We additionally
instructed Attorney Booker to state whether he wanted the
referee's default order to stand. We warned that a failure by
either party to respond to this court's order would be deemed a
forfeiture of arguments regarding the referee's default order.
¶13 The OLR filed a response. It claimed that Attorney
Booker's unexplained decision to stop participating in
proceedings before the referee constituted an egregious
abandonment of his defense.
¶14 Attorney Booker failed to file a response to this
court's order.
¶15 We warned Attorney Booker in our previous order of the
consequence of such non-participation: a forfeiture of
arguments regarding the referee's default order. True to our
word, we deem any objections to the referee's default order to
have been forfeited. We therefore affirm the referee's default
order striking Attorney Booker's answer and declaring him to be
in default, and we accept the allegations of the OLR's amended
complaint as true for purposes of this proceeding.
¶16 The allegations in the OLR's amended complaint (which,
as noted, Attorney Booker has admitted by default) and the
corresponding findings and conclusions by the referee are
expansive. They amount to an omnibus indictment of Attorney
Booker's conduct in numerous specified client matters and in
broad categories of work, such as "State Debt Relief Matters,"
"'Pro Se' [Wis. Stat.] Chapter 128 Petitions," and "'Pro Se'
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No. 2013AP505-D
Bankruptcy Filings." Given the volume of the allegations,
findings, and conclusions before the court, we do not repeat
them all here. It is sufficient to provide the following
summary information concerning the misconduct in this matter.
¶17 Attorney Booker promoted his law practice by labeling
himself in advertisements as the "Light Hero"——a reference to
his ability to keep electricity connected to the homes of
financially troubled residents. For a time, Attorney Booker
concentrated much of his practice on filing what are known as
"Chapter 128 petitions" on behalf of homeowners facing the
possible disconnection of utility services. A Chapter 128
petition is a state-court proceeding in which wage earners who
are unable to pay a debt in full can make regular debt
amortization payments over time. See Wis. Stat. § 128.21.
Before August 2011, the utility company which provides
electrical service to Milwaukee residents treated the filing of
a Chapter 128 petition as an injunction preventing it from
terminating a customer's service during the pendency of the
case. Attorney Booker therefore filed Chapter 128 petitions on
behalf of his clients in order to stay the utility from
disconnecting his clients' service for non-payment.
¶18 The Chapter 128 petitions that Attorney Booker
prepared were often faulty. Between May 2010 and March 2011,
Attorney Booker filed several hundred Chapter 128 petitions,
many of which did not use court-approved forms and did not
contain required certification language.
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No. 2013AP505-D
¶19 Beginning in April 2011, Attorney Booker began
ghostwriting Chapter 128 filings. That is, Attorney Booker
would prepare and file certain documents and include return
envelopes for the court to send correspondence to his post
office box, but he would not appear as counsel of record. Many
of Attorney Booker's filings were incomplete or noncompliant
with the court's requirements. The information that Attorney
Booker provided to his clients often consisted of information
the clients could obtain without a fee at the courthouse.
Attorney Booker also failed to adequately explain the limited
nature of his representation to his clients.
¶20 In mid-2011, a Milwaukee County Circuit Court judge
discovered that Attorney Booker was ghostwriting Chapter 128
filings. The judge wrote to Attorney Booker and asked him to
identify himself to the court and explain his conduct. Attorney
Booker did not respond.
¶21 In August 2011, a Milwaukee County Circuit Court judge
ruled that Chapter 128 petitions did not stay utility
disconnection for nonpayment. This ruling meant that the only
place where a customer could initiate a court action that would
result in a utility being barred from disconnecting service was
the federal bankruptcy court. Attorney Booker responded by
changing the focus of his practice to bankruptcy filings in
federal bankruptcy court.
¶22 By December 2011, the Eastern District bankruptcy
court had encountered enough problems with Attorney Booker's
filings that the court barred him from filing further bankruptcy
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No. 2013AP505-D
petitions in that court until he had obtained 15 hours of
continuing legal education in the area of consumer bankruptcy
practice. In February 2012, Attorney Booker filed verification
with the court that he'd obtained the required educational
hours. Accordingly, in March 2012, the court reinstated
Attorney Booker's privileges to file new bankruptcy petitions.
¶23 Between April 2012 and June 2012, the Eastern District
bankruptcy court received more than 140 petitions which showed
the debtor as filing pro se and listed a business called "1st
Choice Bankruptcy Preparation" in Indiana as the petition
preparer. Attorney Booker helped prepare these filings even
though he never appeared as counsel of record. In exchange for
a fee, Attorney Booker provided the debtors with a packet of
information and sent the debtors' financial information to 1st
Choice Bankruptcy, which in turn prepared the bankruptcy
petitions. Attorney Booker did not adequately explain the
limited nature of his representation to his clients; some
debtors believed that Attorney Booker was their attorney for the
entire bankruptcy proceeding. In many cases, Attorney Booker
conducted no meaningful review as to the debtor's suitability
for bankruptcy. Much of the information that Attorney Booker
provided to his clients was inaccurate. Many of the court
filings contained incorrect information or were missing required
documents. Attorney Booker failed to make certain disclosures
to clients that are required by the United States Bankruptcy
Code. He charged unreasonable fees for his services.
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No. 2013AP505-D
¶24 The OLR's amended complaint (the allegations of which
Attorney Booker has admitted by default) and the referee's
report describe a variety of specific client matters, which are
presumably intended to serve as representative examples of
Attorney Booker's misconduct. All cases except one are
bankruptcy matters. Each of the cases present variations on
certain basic themes of misconduct: Attorney Booker failed to
competently prosecute Chapter 128 petitions and federal
bankruptcy petitions, resulting in their dismissal; he failed
to complete his work in a timely fashion; he failed to return
his clients' calls and emails; he charged advanced fees, which
he did not place in trust, nor did he provide any of the notices
required under SCR 20:1.15(b)(4m) for the alternative treatment
of advanced fees; he charged unreasonable fees; he failed to
return unearned fees; and he did not fully cooperate with the
OLR investigation.
¶25 From the above-described misconduct, the OLR charged
and the referee found 47 counts of misconduct, which may be
grouped as follows:
Failing to act with reasonable diligence and
promptness in representing a client, see SCR 20:1.3
(Counts 1, 17).
Failing to properly communicate with clients, see
SCR 20:1.4 (Counts 2, 3, 8, 18, 23).
Failing to cooperate with an OLR investigation and to
provide relevant information, to answer questions
fully, or to furnish documents in the course of an OLR
10
No. 2013AP505-D
investigation, see SCRs 20:8.4(h), 21.15(4), 22.03(6)
(Counts 4, 32).
Knowingly disobeying an obligation under a tribunal's
rules, see SCR 20:3.4(c) (Counts 5, 10, 11, 15, 25,
26, 31, 39, 42, 43, 44).
Making a false statement of fact to a tribunal, see
SCR 20:3.3(a)(1) (Counts 6, 19).
Engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation, see SCR 20:8.4(c)
(Counts 6, 12, 19, 21, 28, 47).
Failing to provide competent representation, see
SCR 20:1.1 (Counts 7, 13, 16, 20, 22, 29).
Charging an unreasonable fee, see SCR 20:1.5(a)
(Counts 9, 14, 24, 30, 33, 36, 39, 42, 44).
Engaging in conduct that violates a statute, supreme
court rule, supreme court order, or supreme court
decision regulating the conduct of lawyers, see
SCR 20:8.4(f) (Counts 10, 15, 25, 31).
Unreasonably limiting the scope of representation, see
SCR 20:1.2(c) (Counts 8, 23).
Failing to include an attorney name and office address
in advertisements, see SCR 20:7.2(c) (Count 27).
Failing to hold unearned fees in trust, see
SCR 20:1.15(b)(4) (Counts 34, 37, 40, 45).
Failing to return fees or unexpended costs to the
client, see SCR 20:1.16(d) (Counts 35, 38, 41, 43,
46).
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No. 2013AP505-D
¶26 Because we affirm the referee's default order striking
Attorney Booker's answer and declaring him to be in default, we
accept the allegations of the OLR's amended complaint as true
for purposes of this proceeding. We agree with the referee that
those facts support a conclusion of professional misconduct on
each of the 47 counts of misconduct set forth in the amended
complaint and described above.
¶27 We now turn to the question of the appropriate level
of discipline. The undisputed facts show a clear pattern of
neglect by Attorney Booker of his clients' needs and objectives,
which is especially troubling given that most of Attorney
Booker's clients were in serious financial distress and thus
were in a particularly vulnerable position. Attorney Booker
also showed a patent disregard for his obligations as an
attorney. He made a habit of providing inaccurate or misleading
information to his clients and to the courts. He ignored court
orders and requirements. He repeated his misconduct again and
again, in scores of cases in federal and state courts over a
lengthy period. He has never acknowledged his wrongdoing. He
has failed to fully cooperate with the disciplinary process.
License revocation is necessary in this case to impress upon
Attorney Booker the seriousness of his professional misconduct,
to protect the public from similar misconduct in the future, and
to deter other attorneys from engaging in similar misconduct.
¶28 We further conclude that full costs are to be imposed
on Attorney Booker. Attorney Booker has failed to object to the
OLR's requested costs or allege any factors that would justify a
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No. 2013AP505-D
reduction in costs. Consequently, Attorney Booker shall bear
the entire costs of this disciplinary proceeding.
¶29 As to the issue of restitution, the OLR requested and
the referee recommended that this court order Attorney Booker to
pay restitution to ten different individuals. However, we note
that in State of Wisconsin v. Emory H. Booker III, Eastern
District Case No. 12-CV-990, the State of Wisconsin has already
obtained an award against Attorney Booker of over $36,000 in
damages, representing fees that Attorney Booker collected from
approximately 130 debtors in violation of the Bankruptcy Code.
At least half of the clients for whom the OLR now requests
restitution were included in the client matters at issue in this
federal lawsuit. As for the remaining clients for whom the OLR
seeks restitution, the OLR's amended complaint and the referee's
report suggest that the Eastern District bankruptcy court has
already ordered Attorney Booker to pay restitution to several of
these clients. Neither the OLR nor the referee explain why this
court should order restitution that would duplicate that already
ordered in the federal court system.
¶30 Given the imprecise state of the record as it relates
to restitution, the court declines to make a specific award of
restitution. Instead, we deem it appropriate to require, as a
condition of the reinstatement of his Wisconsin law license,
that Attorney Booker demonstrate to the court that he has
reimbursed any unearned fees to each client mentioned in the
OLR's amended complaint.
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No. 2013AP505-D
¶31 IT IS ORDERED that the license of Emory H. Booker, III
to practice law in Wisconsin is revoked, effective the date of
this order.
¶32 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Emory H. Booker, III shall pay the Office of
Lawyer Regulation the costs of this proceeding.
¶33 IT IS FURTHER ORDERED that, as a condition of
reinstatement of his license to practice law in Wisconsin, Emory
H. Booker, III shall reimburse any unearned fees to each client
mentioned in the Office of Lawyer Regulation's amended
complaint, and shall provide the court with a written accounting
of any such reimbursements.
¶34 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Emory H. Booker, III 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. 2013AP505-D
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