2015 WI 81
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2578-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Joseph J. Kaupie, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Joseph J. Kaupie,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KAUPIE
OPINION FILED: July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 81
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2578-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Joseph J. Kaupie, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 15, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Joseph J. Kaupie,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review, pursuant to Supreme Court
Rule (SCR) 22.17(2), the report of the referee, Robert E.
Kinney, recommending that the court suspend Attorney Joseph J.
Kaupie's license to practice law in Wisconsin for a period of
five months for professional misconduct in connection with four
client matters. No appeal has been filed.
¶2 We approve and adopt the referee's findings of fact
and conclusions of law. We conclude that Attorney Kaupie's
No. 2014AP2578-D
misconduct warrants a five-month license suspension together
with the imposition of full costs, which total $2,309.41 as of
March 31, 2015.
¶3 Attorney Kaupie was licensed to practice law in
Wisconsin in 1999. He resides in Wausau. Attorney Kaupie's
license has been administratively suspended since October 31,
2011, for his failure to pay mandatory State Bar dues and his
failure to file a trust account certification, and since
June 12, 2012, for failure to comply with continuing legal
education requirements. In addition, on March 15, 2012, this
court temporarily suspended Attorney Kaupie's license for his
willful failure to cooperate in Office of Lawyer Regulation
(OLR) investigations concerning his conduct. He has not
previously been the subject of disciplinary proceedings.
¶4 On November 6, 2014, the OLR filed a complaint
alleging that Attorney Kaupie committed 14 counts of
professional misconduct. By order dated December 15, 2014,
Robert E. Kinney was appointed referee. On March 9, 2015, the
parties filed a stipulation and no contest plea agreement
whereby Attorney Kaupie pled no contest to the misconduct
alleged in the complaint. Attorney Kaupie acknowledged the
accuracy of the complaint's factual allegations and the parties
jointly requested that the referee recommend a five-month
suspension.
Matter of D.B. (Counts One-Three)
¶5 In November 2010, Attorney Kaupie was appointed by the
Office of the State Public Defender (SPD) to represent D.B. on
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No. 2014AP2578-D
D.B.'s appeal from his conviction for sexual assault. Attorney
Kaupie failed to respond to telephone messages and failed to
respond to written communications from his client and from the
SPD. Attorney Kaupie had no contact at any time with D.B.
regarding his appeal and, as a result, D.B.'s appellate
deadlines lapsed. The SPD eventually removed Attorney Kaupie
from its list of attorneys eligible to receive post-conviction
appointments and a grievance was filed. Attorney Kaupie then
failed to respond to repeated inquiries from the OLR concerning
the grievance. The referee concluded, based on the parties'
stipulation, that Attorney Kaupie's conduct in this matter
violated SCR 20:1.3,1 SCR 20:1.4(a)(3) and (4),2 and SCR 22.03(2)
and (6),3 enforced via SCR 20:8.4(h).4
1
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
2
SCR 20:1.4(a)(3) and (4) provide 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
SCR 22.03(2) and (6) provide:
(2) 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 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
(continued)
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No. 2014AP2578-D
Matter of P.E. (Counts Four-Seven)
¶6 In 2010, Attorney Kaupie was appointed by the SPD to
represent P.E. in post-conviction proceedings stemming from his
conviction, on entry of a guilty plea, to burglary, receiving
stolen property, criminal damage to property, and two counts of
armed robbery. Attorney Kaupie did not file a statement on
transcript or a brief in the case. He disregarded the court of
appeal's delinquency notice regarding his failure to file P.E.'s
brief. Attorney Kaupie was removed from the appeal and the SPD
was ordered to appoint replacement counsel. Attorney Kaupie
then failed to send successor counsel P.E.'s file and failed to
respond to repeated inquiries from the OLR regarding the ensuing
grievance investigation. The referee concluded, based on the
parties' stipulation, that Attorney Kaupie's conduct in this
present any information deemed relevant to the
investigation.
. . . .
(6) In 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 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)."
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No. 2014AP2578-D
matter violated SCR 20:1.3, SCR 20:1.16(d),5 SCR 20:3.4(c),6 and
SCR 22.03(2) and (6), enforced via SCR 20:8.4(h).
Matter of Y.M. (Counts Eight-Ten)
¶7 In 2010, Attorney Kaupie was appointed by the SPD to
represent Y.M. in post-conviction proceedings stemming from his
conviction, on entry of a guilty plea, to several drug-related
crimes and one count of resisting/obstructing an officer.
Attorney Kaupie did not file a brief or do meaningful work to
advance Y.M.'s appeal. Y.M. briefly met with Attorney Kaupie in
the prison but had no further communication with him. Y.M. was
unable to contact Kaupie by telephone or by mail and eventually
learned that his appeal had been dismissed because of Attorney
Kaupie's failure to file a brief on his behalf. Attorney Kaupie
then failed to respond to repeated inquiries from the OLR
regarding the ensuing grievance investigation. The referee
5
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.
6
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."
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No. 2014AP2578-D
concluded, based on the parties' stipulation, that Attorney
Kaupie's conduct in this matter violated SCR 20:1.3, SCR
20:1.4(a)(3) and (4), and SCR 22.03(2) and (6), enforced via SCR
20:8.4(h).
Matter of J.W. (Counts 11-14)
¶8 In December 2009, Attorney Kaupie was appointed by the
SPD to represent J.W. in post-conviction proceedings stemming
from J.W.'s conviction for second degree sexual assault of a
child. Attorney Kaupie handled a post-conviction motion but
failed to respond to multiple directives from the court of
appeals relating to J.W.'s appeal. In August 2011, the court of
appeals issued an order rejecting a no-merit report filed by
Attorney Kaupie and ordering Attorney Kaupie to pursue an
appeal. Attorney Kaupie did not respond to the court's order or
to communications from the SPD. In September 2011, the SPD
suspended Attorney Kaupie "[b]ased on your pattern of failing to
communicate with the court, our appellate office and your
client."
¶9 Attorney Kaupie then failed to send successor counsel
J.W.'s file and failed to respond to repeated inquiries from the
OLR regarding the ensuing grievance investigation. The referee
concluded, based on the parties' stipulation, that Attorney
Kaupie's conduct in this matter violated SCR 20:1.3,
SCR 20:1.16(d), SCR 20:3.4(c), and SCR 22.03(2) and (6),
enforced via SCR 20:8.4(h).
¶10 Attorney Kaupie has stipulated that he fully
understands the misconduct allegations; that he understands his
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No. 2014AP2578-D
right to contest this matter; that he understands the
ramifications should the court impose a five-month suspension;
and that his entry into the stipulation is made knowingly and
voluntarily and represents his admission of the alleged
misconduct and his agreement with the level of discipline sought
by the OLR. The parties asked the referee to approve the
stipulation and file a report finding facts and misconduct
consistent with the stipulation and recommending that Attorney
Kaupie's license to practice law be suspended for five months.
¶11 On March 11, 2015, the referee filed his findings of
fact, conclusions of law, and recommendation in which he adopted
the parties' stipulated findings of fact, determined that the
OLR had proven by clear, satisfactory, and convincing evidence
that Attorney Kaupie had engaged in the alleged misconduct,
recommended that Attorney Kaupie's license to practice law be
suspended for five months, and recommended imposition of full
costs. No appeal was filed from the referee's report and
recommendation. Restitution is neither sought nor recommended
in this matter.
¶12 This court will affirm a referee's findings of fact
unless they are clearly erroneous, but 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. This
court is free to impose whatever discipline it deems
appropriate, 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.
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No. 2014AP2578-D
¶13 As the referee observed, abandonment of clients,
especially those who are vulnerable due to incarceration and
indigency, is a serious matter and Attorney Kaupie's cooperation
with the ensuing investigation was "abysmal." The referee was
mindful, however, that Attorney Kaupie had no prior disciplinary
history and that Attorney Kaupie acknowledged complete
culpability for his misconduct.
¶14 The stipulation discloses that in 2009, when this
misconduct commenced, Attorney Kaupie was a sole practitioner
with no office staff, practicing primarily in the area of
criminal defense. That year, Attorney Kaupie's mother, who
suffered from Alzheimer's disease, experienced declining health.
Attorney Kaupie spent considerable time caring for his mother,
whose condition increasingly needed constant supervision. The
stipulation discloses that Attorney Kaupie essentially stopped
practicing law to care for his mother, who passed away in
November 2014.
¶15 We adopt the referee's findings of fact and
conclusions of law and determine that, in view of the
circumstances presented, a five-month suspension is the
appropriate discipline for Attorney Kaupie's professional
misconduct. See In re Disciplinary Proceedings Against Diamon,
2001 WI 28, 242 Wis. 2d 110, 624 N.W.2d 147 (five-month
suspension for failure to act with reasonable diligence and
promptness in representing clients, failure to communicate with
clients, terminating representation of clients without
performing any legal services or refunding any unearned fees,
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No. 2014AP2578-D
and failure to cooperate in the misconduct investigation). We
find no reason to diverge from our general policy of imposing
full costs in this matter.
¶16 IT IS ORDERED that the license of Joseph J. Kaupie to
practice law in Wisconsin is suspended for a period of five
months, effective the date of this order.
¶17 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Joseph J. Kaupie shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$2,309.41.
¶18 IT IS FURTHER ORDERED that the March 15, 2012
temporary suspension of Joseph J. Kaupie's license to practice
law in Wisconsin, due to his willful failure to cooperate with
the OLR's grievance investigation in this matter, is lifted.
The administrative suspensions imposed upon Attorney Kaupie's
license for failure to pay mandatory bar dues, failure to file a
trust account certification, and failure to comply with
continuing legal education requirements, however, will remain in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).
¶19 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Joseph J. Kaupie shall comply with the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
¶20 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. 2014AP2578-D
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