2015 WI 14
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP818-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against James E. Hammis, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
James E. Hammis,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST HAMMIS
OPINION FILED: February 17, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by James E.
Hammis and Hammis Law Offices, LLC, Stoughton, and oral argument
by James E. Hammis.
For the Office of Lawyer Regulation, there was a brief and
oral argument by Robert G. Krohn and Roethe Pope Roethe LLP,
Edgerton.
2
2015 WI 14
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP818-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against James E. Hammis, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
FEB 17, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
James E. Hammis,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney James E. Hammis appeals a
report filed by referee James C. Boll Jr. on August 5, 2013,
concluding that Attorney Hammis committed nine counts of
professional misconduct and recommending that this court suspend
his license to practice law in Wisconsin for a period of four
months, that Attorney Hammis make restitution to a client in the
amount of $995, and that he be required to pay the full costs of
this proceeding, which are $12,022.38 as of December 2, 2014.
No. 2012AP818-D
Attorney Hammis asserts that many of the referee's findings of
fact are clearly erroneous. In the alternative, Attorney Hammis
argues that, even assuming this court finds that he committed
some or all of the counts of misconduct found by the referee, a
public reprimand would be an appropriate level of discipline.
¶2 Upon careful review of this matter, we conclude that a
90-day suspension of Attorney Hammis's license to practice law
is an appropriate sanction for his misconduct. We agree with
the referee that Attorney Hammis should make restitution to his
former client in the amount of $995, and that he be required to
pay the full costs of this proceeding.
¶3 Attorney Hammis was admitted to practice law in
Wisconsin in 1988. He most recently practiced in Stoughton but
indicates that his primary occupation now is in the construction
trade.
¶4 In 2011 this court suspended Attorney Hammis's license
for four months based on a finding that he had engaged in ten
counts of misconduct with respect to two different clients,
practiced law while administratively suspended, and failed to
cooperate with the investigation of the Office of Lawyer
Regulation (OLR). In re Disciplinary Proceedings Against
Hammis, 2011 WI 3, 331 Wis. 2d 19, 793 N.W.2d 884.
¶5 On April 18, 2012, the OLR filed a complaint alleging
the nine counts of misconduct that underlie this appeal. The
complaint alleges that on July 20, 2005, Attorney Hammis was
convicted in the Court of Common Pleas, Tuscarawas County, Ohio
of the crime of reckless endangering, a first degree misdemeanor
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No. 2012AP818-D
under Ohio law. Attorney Hammis did not report his conviction
to the OLR or to the clerk of this court as required by supreme
court rules. Attorney Hammis was to pay all court costs in the
Ohio criminal matter. The Tuscarawas County Clerk of Court
prepared an itemized bill of costs and sent it to Attorney
Hammis on August 24, 2005. The itemized bill of costs was
repeatedly mailed to Attorney Hammis—at least 26 times—but Ohio
court records indicated he had not paid the costs, which totaled
$232.16 as of September 13, 2010.
¶6 The Ohio criminal matter arose while Attorney Hammis
was the president, operator, and sole member of ST&E
Fabrication, LLC (ST&E). The OLR's complaint alleged that ST&E
was charged in a separate companion criminal case in which
Attorney Hammis pled guilty on behalf of ST&E to two felony
counts of illegal transportation of hazardous waste and illegal
disposal of hazardous waste.
¶7 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Hammis's misdemeanor
conviction:
[COUNT ONE] By engaging in the conduct leading
to his personal misdemeanor conviction of criminal
endangering in State of Ohio v. James Hammis,
Tuscarawas County (Ohio) Case No. 2005 CR 06 0181,
Hammis violated SCR 20:8.4(b).1
1
Supreme Court Rule (SCR) 20:8.4(b) provides that it is
professional misconduct for a lawyer to "commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects."
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No. 2012AP818-D
[COUNT TWO] By failing to timely notify OLR and
the Clerk of the Wisconsin Supreme Court of his 2005
Ohio criminal conviction, Hammis violated SCR 21.15(5)2
which is enforced under the Rules of Professional
Conduct via SCR 20:8.4(f).3
[COUNT THREE] By failing to pay the court costs,
as ordered in the judgment in State of Ohio v. James
Hammis, Tuscarawas County (Ohio) Case No.
2005 CR 06 0181, Hammis violated SCR 20:3.4(c).4
¶8 The other six counts of misconduct alleged in the
OLR's complaint arose out of Attorney Hammis's representation of
I.B. On September 7, 2007, I.B. was found guilty of two counts
of homicide by intoxicated use of a vehicle and one count of
causing injury while operating under the influence. He was
subsequently sentenced to six years in prison and seven years
2
SCR 21.15(5) provides:
An attorney found guilty or convicted of any
crime on or after July 1, 2002, shall notify in
writing the office of lawyer regulation and the clerk
of the Supreme Court within 5 days after the finding
or conviction, whichever first occurs. The notice
shall include the identity of the attorney, the date
of finding or conviction, the offenses, and the
jurisdiction. An attorney’s failure to notify the
office of lawyer regulation and clerk of the supreme
court of being found guilty or his or her conviction
is misconduct.
3
SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
4
SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
4
No. 2012AP818-D
and six months of extended supervision for each of the homicide
counts, plus an additional year in prison on the causing injury
conviction.
¶9 In May of 2010, I.B. contacted Attorney Hammis
regarding legal representation for the purpose of pursuing a
sentence modification. On May 24, 2010, Attorney Hammis sent
I.B. a letter enclosing a contract for legal services. I.B.
signed the contract and returned it to Attorney Hammis. The
contract required a $2,000 advance fee. The contract expressly
contemplated that at least a portion of the required advanced
fee would be paid by I.B.'s mother, L.B. The contract also
provided that at the conclusion of the representation, a refund
of any unearned advanced fee would be made to I.B.
¶10 On June 1, 2010, in response to Attorney Hammis's
letter of May 24, I.B. sent Attorney Hammis a cover letter and
copies of the sentencing transcript and pre-sentence
investigation report. On June 9, 2010, I.B. paid Attorney
Hammis $995 from his inmate account. I.B.'s mother paid another
$400 toward the advanced fee by personal check dated June 26,
2010.
¶11 Attorney Hammis did not deposit any portion of the
$1,395 fee payments into his client trust account and instead
deposited the funds into his business account.
¶12 Attorney Hammis and I.B. spoke on June 18, 2010, and
discussed an outline of issues and actions that needed to be
taken on the file. I.B. wrote another letter to Attorney Hammis
on July 14, 2010, in which he mentioned the prior payments,
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No. 2012AP818-D
asked why he had not received a plan of action for his case, and
asked to be updated on the financial and legal status. Attorney
Hammis failed to respond.
¶13 On August 6, 2010, I.B. wrote to Attorney Hammis for
the last time, saying he was unable to pay the $2,000 advanced
fee and that he wanted a refund of the $1,395 previously paid.
He also asked that Attorney Hammis return the sentencing
transcript and pre-sentence investigation report. Attorney
Hammis failed to respond to the letter and failed to return
I.B.'s transcript and pre-sentence report in a timely manner.
¶14 On September 14, 2010, L.B. passed away. Attorney
Hammis paid $400 from his business account toward L.B.'s funeral
expenses. The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Hammis's representation of
I.B.:
[COUNT FOUR] By initially depositing the
unearned advance fee payments for [I.B.] in his
business account rather than holding the fees in his
client trust account until the fees were earned, and
then by not providing required notices and accounting
upon termination of representation, Hammis violated
SCR 20:1.15(b)(4m)b.1. through 3.5
5
SCR 20:1.15(b)(4m)b. provides:
Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:
1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;
(continued)
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No. 2012AP818-D
[COUNT FIVE] By failing to respond to his
client's July 14, 2010 inquiry about what was
happening in his case and by failing to provide an
action plan to [I.B.] despite stating he would do so,
Hammis violated SCR 20:1.4(a)(3) and (4).6
[COUNT SIX] By failing to respond to his
client's letters of July 14 and August 6, 2010,
concerning the advance fee receipts, a refund, and
expenses, Hammis violated SCR 20:1.5(b)(3).7
[COUNT SEVEN] By retaining the entire amount of
then [sic] fee paid by [I.B.] despite never
accomplishing the service he had been hired to
perform, Hammis violated SCR 20:1.5(a).8
2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and
3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.
6
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."
7
SCR 20:1.5(b)(3) provides that "[a] lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
8
SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(continued)
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No. 2012AP818-D
[COUNT EIGHT] By failing to refund the unearned
advance fee when the client terminated the
representation and by failing to return the client's
transcripts and pre-sentence investigative report,
Hammis violated SCR 20:1.16(d).9
[COUNT NINE] By failing to provide relevant
information, to answer questions fully, or to furnish
documents and by making misrepresentations in response
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
9
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
8
No. 2012AP818-D
to OLR's investigation of the grievance filed against
him by [I.B.], Hammis violated SCR 22.03(6)10 enforced
via SCR 20:8.4(h).11
¶15 James C. Boll, Jr. was appointed as referee in the
matter. A hearing was held before the referee on May 14, 2013.
The witnesses at the hearing were Attorney Hammis; Robert Weber,
an OLR investigator; and G.G., L.B.'s mother.
¶16 At the start of the hearing, Attorney Hammis objected
to the introduction of any evidence pertaining to ST&E's
conviction for illegally transporting and disposing of hazardous
waste. The referee said he would allow the admission of such
evidence and would give it the appropriate weight.
¶17 At the hearing, Attorney Hammis claimed that he had in
fact paid the court costs associated with his Ohio misdemeanor
conviction. He claimed that the costs were collected by a
collection agency. He had no formal records from the clerk of
court, no cancelled check, and no receipts or satisfaction of
judgment to prove that he actually paid the amount.
10
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."
11
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
No. 2012AP818-D
¶18 Attorney Hammis said he paid $400 to Gunderson Funeral
Home to repay the money L.B. had advanced for her son's case.
I.B. testified in his deposition that he never authorized the
payment of the $400 to the funeral home but he would have
authorized it if he had been asked to do so.
¶19 The referee issued his report on August 5, 2013. The
referee found that the OLR had met its burden of proof with
respect to all nine counts alleged in the OLR's complaint.
While the OLR had sought restitution in the amount of $1,395 in
the I.B. matter, the referee noted that I.B. himself testified
he would have approved Attorney Hammis's paying $400 to
Gunderson Funeral Home if he had been asked. The referee said,
"The payment of the money was a good faith effort by Mr. Hammis
to do the right thing and he should not be penalized for such an
act." Thus, the referee found that Attorney Hammis should make
restitution to I.B. in the amount of $995.
¶20 The referee said he was very troubled by the fact that
Attorney Hammis had been previously suspended for ten counts of
misconduct in five different matters, one of which was similar
to the I.B. matter. The referee also said he was very troubled
by Attorney Hammis's failure to provide any credible evidence to
challenge the OLR's charges, and he said Attorney Hammis has
failed to acknowledge any wrongdoing. Accordingly, although the
OLR sought a 90-day suspension, the referee recommended a four-
month suspension.
¶21 Attorney Hammis stipulated to the misconduct alleged
in Counts One and Two of the OLR's complaint. He argues that
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No. 2012AP818-D
the referee erred in finding that the OLR met its burden of
proof on the remaining seven counts. He asserts that many of
the referee's findings of fact are clearly erroneous, and he
argues that the level of discipline recommended by the referee
is far too harsh, even assuming all counts of misconduct were
proven. He argues that Counts Five and Six are multiplicitous.
He accuses the OLR of inflating the number of counts of
misconduct. He asserts that the referee was confused, not
objective, and excessively biased against him. He claims that
L.B.'s mother lied at the evidentiary hearing.
¶22 The OLR asserts that none of the referee's findings of
fact are clearly erroneous.12
¶23 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.
¶24 There is no showing that any of the referee's findings
of fact are clearly erroneous. Accordingly, we adopt them. We
12
The OLR concedes that in determining a violation of Count
Three, the referee inadvertently made a finding of fact that the
count was based upon the referee's review of an exhibit which
refers to a plea agreement in the ST&E case, i.e., Exhibit 1,
when in fact the referee was describing Exhibit 5.
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No. 2012AP818-D
also agree with the referee's conclusions of law that Attorney
Hammis violated all of the supreme court rules set forth above.
¶25 With respect to the appropriate level of discipline,
after careful review of the matter, we conclude that a 90-day
suspension is appropriate. This is not the first time that
Attorney Hammis has been found to have committed professional
misconduct. Some of the behavior in this case mirrors the
misconduct that resulted in his four-month license suspension
back in 2011. Although Attorney Hammis argues that the referee
was biased against him, the referee found Attorney Hammis's
version of events to be incredible. Credibility determinations
are particularly within the province of the trier of fact, and
we find no basis to second-guess them.
¶26 In addition, as an inmate, I.B. was a particularly
vulnerable client. All of these factors weigh against imposing
a public reprimand. On the other hand, it is arguable that
there may be some overlap between some of the counts alleged in
the OLR's complaint. On balance, we conclude that a 90-day
suspension, which was the level of discipline originally sought
by the OLR, rather than the four-month suspension recommended by
the referee, will sufficiently protect the public from similar
misconduct and impose upon Attorney Hammis the gravity of the
misconduct. We further agree with the referee's recommendation
that Attorney Hammis be ordered to make restitution to I.B. in
the amount of $995 and that he bear the full costs of this
proceeding.
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No. 2012AP818-D
¶27 IT IS ORDERED that the license of James E. Hammis to
practice law in Wisconsin is suspended for a period of 90 days,
effective March 19, 2015.
¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, James E. Hammis shall pay restitution in the
amount of $995 to I.B.
¶29 IT IS FURTHER ORDERED that within 60 days of the date
of this order, James E. Hammis shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶30 IT IS FURTHER ORDERED that restitution is to be
completed prior to paying costs to the Office of Lawyer
Regulation.
¶31 IT IS FURTHER ORDERED that James E. Hammis shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶32 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
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No. 2012AP818-D
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