2015 WI 26
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2732-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Christopher S. Carson, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Christopher S. Carson,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CARSON
OPINION FILED: March 10, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 26
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2732-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Christopher S. Carson, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 10, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Christopher S. Carson,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer
Regulation (OLR) and Attorney Christopher S. Carson. In the
stipulation, Attorney Carson agrees that he engaged in eight
counts of misconduct involving four clients. Attorney Carson
also agrees that a 90-day suspension of his license to practice
law in Wisconsin is an appropriate sanction for his misconduct.
No. 2014AP2732-D
The OLR does not request restitution, and it also does not seek
the imposition of costs against Attorney Carson.
¶2 After careful review of the matter, we approve the
stipulation and agree that a 90-day suspension of Attorney
Carson's license to practice law is an appropriate sanction.
Because this matter is being resolved without the appointment of
a referee, we do not impose any costs on Attorney Carson.
¶3 Attorney Carson was admitted to practice law in
Wisconsin in 1992. The most recent address furnished by
Attorney Carson to the State Bar of Wisconsin is New Berlin,
Wisconsin.
¶4 In 2008, Attorney Carson was privately reprimanded for
misconduct in two matters. In one matter, he wrote to a judge
without copying the other lawyers. In the second matter, he
failed to obey a court order. Private Reprimand 2008-15.
¶5 In 2009, Attorney Carson was publicly reprimanded for
misconduct in a divorce matter. Public Reprimand of Christopher
S. Carson, No. 2009-10.
¶6 On November 26, 2014, the OLR filed a complaint
alleging that Attorney Carson engaged in eight counts of
misconduct involving four separate clients. The OLR and
Attorney Carson contemporaneously filed a stipulation
incorporating the allegations of the complaint.
¶7 The first client matter detailed in the complaint and
stipulation involved Attorney Carson's representation of N.S.
In or around April of 2010, N.S. retained Attorney Carson to
represent her in two operating while intoxicated cases and a
2
No. 2014AP2732-D
forthcoming felony drug possession case. Prior to commencement
of the lawyer-client relationship, no consensual sexual
relationship existed between N.S. and Attorney Carson.
¶8 N.S.'s initial court appearance in the drug possession
case occurred in August of 2010. N.S. and Attorney Carson both
attended the court appearance. The court set a signature bail
bond which provided that N.S. was not to possess or consume any
alcohol or drugs. The drug possession case was concluded in
late May of 2011. The terms of the August 2010 bail bond
remained in effect.
¶9 In April of 2011, Attorney Carson and N.S. engaged in
sexual relations on two occasions.
¶10 The OLR's complaint alleged three counts of misconduct
with respect to Attorney Carson's relationship with N.S.:
[COUNT ONE] By purchasing two alcoholic drinks
for N.S. on April 23, 2011, when the bail bond that
N.S. signed on August 11, 2010, in Carson's presence
prohibited her from consuming alcohol, and while the
conditions of the bail bond were still in effect,
Carson violated SCR 20:1.2(d).1
[COUNT TWO] By engaging in sexual relations with
N.S., a current client, on April 23 and 24, 2011,
while he was representing her on criminal charges,
1
SCR 20:1.2(d) provides:
A lawyer shall not counsel a client to engage, or
assist a client, in conduct that the lawyer knows is
criminal or fraudulent, but a lawyer may discuss the
legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to
make a good faith effort to determine the validity,
scope, meaning or application of the law.
3
No. 2014AP2732-D
when a consensual sexual relationship did not exist
between them when the lawyer-client relationship
commenced, Carson violated SCR 20:1.8(j).2
[COUNT THREE] By denying to OLR's District
Committee that he purchased clothing for N.S. during
their trip on April 23, 2011, and by stating to OLR's
District Committee that it was impossible for him to
have looked through a back window at N.S.'s home and
observe her and her boyfriend in the living room on
April 24, 2011, because there was no such window, and
it would have been impossible for him to see into the
living room from the back porch, when one or both of
such statements were misrepresentations, Carson
violated SCR 22.03(6)3 and SCR 22.04(1).4
¶11 The second client matter detailed in the complaint and
stipulation involved Attorney Carson's representation of M.G.
In 2005, M.G. was sentenced to 13 years of prison for repeated
first degree sexual assault of a child. The judgment of
conviction ordered M.G. to have no contact with minor children
unless approved by his offender agent.
2
SCR 20:1.8(j) provides, in relevant part, that "[a] lawyer
shall not have sexual relations with a current client unless a
consensual sexual relationship existed between them when the
client-lawyer relationship commenced."
3
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."
4
SCR 22.04(1) provides that "[t]he director may refer a
matter to a district committee for assistance in the
investigation. A respondent has the duty to cooperate specified
in SCR 21.15(4) and 22.03(2) in respect to the district
committee. The committee may subpoena and compel the production
of documents specified in SCR 22.03(8) and 22.42."
4
No. 2014AP2732-D
¶12 M.G. and his wife wanted M.G. to have visitation with
their recently born daughter during his incarceration. They
sought permission for visits from M.G.'s social worker and
agent. Their requests were denied. They sought review of the
denial from the warden, who upheld the denial, subject to
reconsideration upon successful completion of treatment
programs.
¶13 In September of 2005, three weeks before the warden
sustained the denial of visitation, the circuit court amended
the judgment of conviction to permit M.G. to have supervised and
monitored prison visits with his daughter. However, the amended
judgment did not strike the pre-existing order prohibiting
contact with minor children without the approval of M.G.'s
agent.
¶14 Visitation was further denied to M.G. by prison
officials later in 2005 and again in 2006 and 2007. In each of
those instances, M.G. and/or his wife were informed of their
appeal rights.
¶15 Wisconsin Admin. Code § DOC 310 provides the
administrative remedy framework for review of inmate complaints,
the Inmate Complaint Review System (ICRS). Under the ICRS,
inmate complaints are first processed by the institution
complaint examiner, who makes disposition recommendations to the
reviewing authority. An inmate dissatisfied with the reviewing
authority's decision generally may appeal it. The appeal is
initially reviewed by a corrections complaint examiner, who
recommends a decision to the secretary of the Department of
5
No. 2014AP2732-D
Corrections (DOC). The secretary's decision is final. M.G.
never used the ICRS to contest any denials of visitation in
prison with his daughter. He never appealed under the ICRS any
denials of visitation to the secretary of the DOC. In addition,
M.G. failed to exhaust his administrative remedies with the DOC
for each of the denials of visitation.
¶16 In early 2009, M.G.'s wife retained Attorney Carson to
take legal action seeking to permit M.G. to have prison
visitation with his daughter. M.G.'s wife provided Attorney
Carson with a copy of M.G.'s prison case notes, which state that
there is an appeal process. Attorney Carson never independently
investigated whether M.G. exhausted his administrative remedies
regarding prior denials of visitation with his daughter.
¶17 M.G. filed three separate motions for writ of mandamus
in the criminal case seeking to compel the DOC to permit
visitation. Each of the motions were eventually withdrawn.
¶18 The OLR's complaint alleged the following count of
misconduct with respect to Attorney Carson's handling of M.G.'s
case:
[COUNT FOUR] After being hired to represent an
incarcerated man who had unsuccessfully sought prison
visitation with his minor child, and after being
provided with "prison case notes" stating that an
appeals process had been explained to the man and that
notice of appeal rights had been sent to the man's
wife, by failing to obtain information about the
administrative appeal process within the Department of
Corrections or familiarize himself on the relevant law
and codes on the appeal process; and/or by thereafter
seeking visitation rights by filing a series of three
motions in the client's prior criminal case instead of
first exhausting the client's administrative remedies
6
No. 2014AP2732-D
and by failing to file a motion against the State of
Wisconsin in the proper venue, Carson violated
SCR 20:1.1.5
¶19 The third client matter detailed in the complaint and
stipulation involved Attorney Carson's representation of L.W.,
who was sentenced in Milwaukee County circuit court to 42 months
in prison, followed by 42 months of extended supervision,
following his conviction for possession with intent to deliver
THC. On July 20, 2010, while on extended supervision, L.W.'s
extended supervision was revoked by the DOC for two counts of
sex with a child and one count of failing to report to his
agent, all of which occurred in 2009.
¶20 Two days later, L.W. was convicted in Milwaukee County
circuit court for two counts of second degree sexual assault of
a child and one count of child enticement. The child involved
was the same child that was the subject of L.W.'s extended
supervision revocation. On the new conviction, L.W. was
sentenced to nine years in prison, followed by seven years of
extended supervision.
¶21 In late 2011 or early 2012, L.W. retained Attorney
Carson to challenge the 2010 revocation of his extended
supervision from the 2002 drug case, on the basis that L.W.
received ineffective assistance of counsel at the extended
supervision revocation hearing. The time to file a petition for
5
SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation."
7
No. 2014AP2732-D
writ of certiari from the extended supervision revocation had
expired in 2010, so Attorney Carson filed a petition for writ of
habeas corpus in Milwaukee County circuit court. Wisconsin
Stat. § 801.50(4)(b) requires that a petition for writ of habeas
corpus be filed in the county "[w]here the liberty of the
plaintiff is restrained if the action seeks relief concerning
any other matter relating to a restraint on the liberty of the
plaintiff." At the time Attorney Carson filed the habeas
petition, L.W. was incarcerated at Redgranite Correctional
Institution (RGCI), which is located in Waushara County.
¶22 Wisconsin Stat. § 782.04(1) provides that a habeas
petition must state "the person by whom imprisoned and the place
where, naming both parties, if their names are known, or
describing them if they are not." Attorney Carson failed to
name the warden at RGCI in the petition. Wisconsin Stat.
§ 782.10 requires that a habeas petition be served upon the
warden or left with an underofficer at the institution that has
charge of the inmate. Attorney Carson only mailed the petition
to the warden. Wisconsin Stat. § 782.04 requires that a habeas
petition be verified. The petition filed by Attorney Carson was
not verified.
¶23 In the conclusion of the habeas petition, Attorney
Carson requested "the remedy of immediate release." However, if
the writ was granted, the remedy would be a new hearing on
L.W.'s ineffective assistance claim, not release. In addition,
at the time the petition was filed, L.W. was less than two years
into a nine-year prison sentence for the sexual assault of a
8
No. 2014AP2732-D
child conviction, so no action of the circuit court on the
habeas petition could have resulted in release from
incarceration.
¶24 The assistant legal counsel for the DOC filed a motion
to dismiss the petition and to declare a "strike" against L.W.
under the Prisoner Litigation Reform Act. The assistant legal
counsel filed a separate motion for sanctions against Attorney
Carson, seeking a finding that the habeas petition was frivolous
and seeking an award of actual attorneys fees. Attorney Carson
voluntarily dismissed the habeas petition, and the DOC's
assistant legal counsel agreed to dismiss her motions to dismiss
and for sanctions.
¶25 In February of 2012, Attorney Carson filed a new
petition for writ of habeas corpus in Waushara County circuit
court. The DOC's assistant legal counsel filed a motion to
dismiss the second petition and to declare a "strike" against
L.W. under the Prisoner Litigation Reform Act. The assistant
legal counsel filed a separate motion for sanctions against
Attorney Carson, again seeking a finding that the second habeas
petition was frivolous and seeking an award of actual attorneys
fees.
¶26 Attorney Carson thereafter filed his own motion for
sanctions against the DOC's assistant legal counsel. The second
habeas petition and the sanction motions were heard in April of
2012. The circuit court denied the second habeas petition and
set the matter for additional briefing and a continued hearing
as to the sanctions motions. In May of 2012, Attorney Carson
9
No. 2014AP2732-D
withdrew his motion for sanctions against the DOC's assistant
legal counsel. The hearing continued in September of 2012. At
the close of the hearing, the circuit court concluded that the
second habeas petition was frivolous. The parties exchanged fee
submissions and at an October 2012 hearing, the circuit court
ordered Attorney Carson to pay attorneys fees and costs totaling
$1,788.50. Attorney Carson appealed, and the court of appeals
summarily affirmed and remanded for the determination and
assessment against Attorney Carson of attorneys fees and costs
reasonably incurred by the State in the appeal.
¶27 The OLR's complaint alleged the following count of
misconduct with respect to Attorney Carson's handling of L.W.'s
case:
[COUNT FIVE] By making multiple errors in a
petition for a writ of habeas corpus that he filed in
Milwaukee County Circuit Court on January 3, 2012,
including filing the petition in the wrong county,
failing to verify the petition by signing it under
oath, misstating the number of charges of which his
client had been convicted, and seeking an
inappropriate remedy, eventually dismissing the
petition and filing a revised petition in Waushara
County in which he corrected some, but not all, of his
previous errors, Carson violated SCR 20:1.1.
¶28 The final client matter detailed in the complaint and
stipulation involved Attorney Carson's representation of A.E.
A.E. met with Attorney Carson in July of 2010 for a consultation
regarding possible divorce representation. At the conclusion of
the consultation, A.E. gave Attorney Carson a $700 advanced fee,
but instructed him not to use the funds and to take no further
action on her behalf unless her husband filed for a divorce.
10
No. 2014AP2732-D
Attorney Carson did not deposit the $700 into his office trust
account but rather deposited it into his office business
account. Attorney Carson later told an OLR investigator that he
deposited the $700 advanced fee into his office business account
because it was a flat fee for representation of A.E. in an
uncontested divorce. Attorney Carson never provided A.E. with
the written notice set forth in SCR 20:1.15(b)(4m).
¶29 By March of 2011, A.E. began to consider initiating
the divorce proceedings and met with Attorney Carson for legal
advice. She paid Attorney Carson an additional $200, which
Attorney Carson deposited into his office business account. On
March 17, 2011, A.E. wrote to Attorney Carson saying she still
had not decided when to file for divorce. On March 31, 2011,
A.E. sent Attorney Carson a certified letter informing him that
she and her husband were reconciling and that she would not need
Attorney Carson's services. A.E. requested a refund of the $700
advanced fee she paid in July of 2010. Attorney Carson did not
respond to A.E.'s refund request.
¶30 On June 3, 2011, A.E. sent Attorney Carson a second
certified letter indicating that the letter was her final
request for him to return her $700 advanced fee. Later in June,
Attorney Carson informed A.E. that she was not entitled to a
refund of any portion of her advanced fee.
¶31 A.E. filed a grievance with the OLR against Attorney
Carson in August of 2011. Attorney Carson told an OLR intake
investigator that the $700 constituted a flat fee. The intake
investigator directed Attorney Carson to provide A.E. with the
11
No. 2014AP2732-D
SCR 20:1.15(b)(4m) written notice regarding fee accounting and
dispute resolution upon termination of representation. Attorney
Carson prepared a letter titled "Termination of Services Letter
and Accounting of Fees" addressed to A.E., which indicated that
it was to be sent to her at the email address shown on the
letter. Attorney Carson sent the letter to that email address,
but the address contained a typographical error and consequently
was not received by A.E.
¶32 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Carson's representation of
A.E.:
[COUNT SIX] By receiving a $700 advanced fee
from [A.E.] on or about July 26, 2010, in anticipation
of possible representation in a divorce and depositing
those funds into his business account without
utilizing the alternative fee placement measures
permitted under SCR 20:1.15(b)(4m), Carson violated
SCR 20:1.15(b)(4).6
[COUNT SEVEN] Having received a March 31, 2011,
letter from [A.E.] in which she terminated the legal
representation and inquired as to the possibility of
having her advanced fee returned to her, by failing
until June 2011 (and only after subsequent inquires
from [A.E.]) to address the matter of the advanced fee
either by refunding a portion of the advance or by
promptly informing [A.E.] that no refund was
6
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."
12
No. 2014AP2732-D
forthcoming in light of work performed, Carson
violated SCR 20:1.16(d).7
[COUNT EIGHT] In September 2011, by sending a
"termination of services letter and accounting of
fees" to [A.E.] (at an incorrect email address) that
incorrectly stated that a refund of an advanced fee
was possible only in hourly fee cases, and only
sending his letter more than five months after
[A.E.'s] termination of the legal representation in a
belated effort to comply with the alternative fee
placement measures permitting deposit of an advanced
fee into a business account, Carson violated
8
SCR 20:1.15(b)(4m)b.
7
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
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;
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
(continued)
13
No. 2014AP2732-D
¶33 In the stipulation, Attorney Carson represents that he
fully understands the misconduct allegations, fully understands
the ramifications should the court impose the stipulated level
of discipline, fully understands his right to contest the
matter, and fully understands his right to counsel. The
stipulation also avers that Attorney Carson's entry into the
stipulation was made knowing, voluntarily, and without coercion
by any person or agency, and that his entry into the stipulation
represents his admission of all misconduct recited and his
assent to the level and type of discipline sought by the OLR
director.
¶34 Upon careful consideration of this matter, we approve
the stipulation and adopt the stipulated facts and legal
conclusions of professional misconduct. We further find that a
90-day suspension of Attorney Carson's license to practice law
in Wisconsin is an appropriate sanction for his misconduct.
Because Attorney Carson entered into a comprehensive stipulation
under SCR 22.12, thereby obviating the need for the appointment
of a referee and a full disciplinary proceeding, we do not
impose any costs in this matter.
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.
14
No. 2014AP2732-D
¶35 IT IS ORDERED that the license of Christopher S.
Carson to practice law in Wisconsin is suspended for a period of
90 days, effective April 9, 2015.
¶36 IT IS FURTHER ORDERED that Christopher S. Carson 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.
¶37 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
15
No. 2014AP2732-D
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