2016 WI 72
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP617-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Diane R. Caspari, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Diane R. Caspari,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CASPARI
OPINION FILED: July 19, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 72
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP617-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Disciplinary Proceedings
Against Diane R. Caspari, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 19, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Diane R. Caspari,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation pursuant to
Supreme Court Rule (SCR) 22.12 between the Office of Lawyer
Regulation (OLR) and Attorney Diane R. Caspari. The stipulation
provides that Attorney Caspari committed six counts of
professional misconduct arising out of four client
representations and requests that the court impose a sixty-day
suspension of Attorney Caspari's license to practice law in this
state.
No. 2016AP617-D
¶2 After carefully reviewing this matter, we accept the
stipulation and impose the requested discipline. Pursuant to
the stipulation and because Attorney Caspari has already
reimbursed the Office of the State Public Defender (SPD) for
fees she did not earn, we do not order any restitution. Because
this matter has been resolved by a stipulation under SCR 22.12
without the need for the appointment of a referee, we also do
not impose any costs on Attorney Caspari.
¶3 Attorney Caspari was admitted to the practice of law
in Wisconsin in January 2004. She maintains a private law
practice in Milwaukee.
¶4 Attorney Caspari has been the subject of professional
discipline on one prior occasion. In 2015 she was privately
reprimanded for her misconduct in two client representations.
In the first matter, Attorney Caspari failed to file a petition
for a writ of certiorari on behalf of an incarcerated client
within the statutory time period, in violation of SCR 20:1.3.
She also failed to respond to that client's multiple inquiries
about the status of the matter, in violation of SCR 20:1.4(a)(3)
and (a)(4). Further, she charged that client legal fees for
preparing the certiorari petition even though she never filed
it, and she failed to refund those fees upon termination of the
representation, in violation of SCRs 20:1.5(a) and 20:1.16(d).
In the second matter, Attorney Caspari again violated SCR
20:1.4(a)(3) and (a)(4) by failing to respond to the client's
requests for information about the status of his matter.
2
No. 2016AP617-D
¶5 In the stipulation in the present case, Attorney
Caspari states that she fully understands the allegations
against her and her right to contest those allegations. She
represents that she also understands her right to consult with
counsel and the ramifications of the imposition of the requested
level of discipline. Finally she affirms that her entry into
the stipulation is knowing and voluntary and that it was not the
product of negotiation for any reduction in charges or requested
level of discipline. Attorney Caspari admits all of the
allegations of misconduct and assents to the level of discipline
requested by the OLR.
¶6 The first matter addressed in the stipulation is
Attorney Caspari's representation of M.W. The SPD appointed
Attorney Caspari in July 2012 to represent M.W. in
postconviction proceedings. Over the next nearly three years,
Attorney Caspari failed to advance M.W.'s case through the
postconviction proceedings into an appeal of his conviction.
She filed multiple motions seeking extensions of time, but then
often failed to meet the new deadline. She did not file a
postconviction motion for over a year. Even after she filed the
motion, she did not schedule a hearing date with the circuit
court for another five months. In that intervening time period,
she failed to provide a status report to the court of appeals as
she was ordered to do. After the circuit court conducted the
hearing and denied M.W.'s postconviction motion, Attorney
3
No. 2016AP617-D
Caspari failed to ensure that a written order was submitted to
the circuit court for approximately nine months.1
¶7 Once the order was finally submitted, the court of
appeals extended the deadline for filing a notice of appeal.
Attorney Caspari, however, failed to file a notice of appeal or
a further extension motion by the new deadline, causing M.W.'s
appeal rights to lapse. When the SPD communicated with her
about this matter, she stated that she had developed a new
theory of the defense for appeal and that she was now planning
to file a second postconviction motion and to request a further
extension of the deadline for filing an appeal so she could
pursue the second postconviction motion. She still failed,
however, to file any second postconviction motion or to seek a
further extension of time from the court of appeals.
¶8 In May 2015 the court of appeals issued an order
stating that it could "discern no reason for inaction in this
matter" and referred the case to the SPD for a response as to
whether Attorney Caspari should remain counsel for M.W. The SPD
filed a response that acknowledged that some of the delay in
M.W.'s case had been the result of late transcripts and of
1
The circuit court did initially direct the counsel for the
state to prepare and submit a proposed order. Attorney Caspari,
however, never followed up when that attorney did not file a
proposed order, which delayed the filing of a notice of appeal
on M.W.'s behalf. Ultimately, the court of appeals had to issue
an order to Attorney Caspari either to request the prosecutor to
prepare the order or to submit a proposed order herself. Only
after this order from the court of appeals did Attorney Caspari
submit a proposed order to the circuit court.
4
No. 2016AP617-D
needed investigation, but also concluded that Attorney Caspari
had not acted with diligence or competence and had not
communicated properly with M.W. The SPD further stated that it
would appoint new counsel for M.W. Attorney Caspari also filed
a response admitting that her conduct had "unreasonably and
improperly held up [M.W.'s] appeal." As a result of the
responses, the court of appeals discharged Attorney Caspari from
her representation of M.W. and directed the SPD to appoint new
counsel.
¶9 Attorney Caspari stipulates that her conduct in
failing to pursue postconviction or appellate relief for M.W. in
a timely manner constitutes a violation of SCR 20:1.3.2
¶10 The second matter stems from Attorney Caspari's
appointment to represent M.W.3 in a criminal case pending against
him in the circuit court. After M.W. was found guilty and
sentenced, the SPD appointed Attorney Diane Erickson in May 2014
to represent M.W. in postconviction proceedings and on appeal.
Attorney Erickson made several requests to Attorney Caspari for
her complete file on M.W.'s case. Eventually, Attorney Caspari
produced only some of the materials requested by Attorney
Erickson. Various materials that should have been in the file
were missing, including various items of discovery. Attorney
2
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
3
This is a different M.W. than the individual who was the
subject of the postconviction motion described in the previous
matter.
5
No. 2016AP617-D
Erickson was forced to obtain some of these items from the
investigator who had worked on M.W.'s case and to reconstruct
other parts of the discovery and case file from the files of the
police department and the district attorney's office. The
failure of Attorney Caspari to provide a complete file and the
time and effort required to reconstruct the file resulted in
substantial delays to M.W.'s postconviction proceedings and
appeal.
¶11 As a result of M.W.'s allegations and the OLR's review
of M.W.'s criminal case file during its investigation, it became
evident that Attorney Caspari had billed the SPD and had
received payment for several jail visits to M.W. that did not
occur. Attorney Caspari failed to correct her invoices to the
SPD and did not refund the payments for those entries for years
until February 2016, just prior to the filing of the OLR's
complaint in this disciplinary proceeding. In addition,
Attorney Caspari billed the SPD for a visit to M.W.'s mother and
brother. Attorney Caspari acknowledged, however, that she
merely went to the mother's house, knocked on the door a couple
of times without receiving a response, waited for a while, then
placed her business card in the door, and left.
¶12 In the stipulation, Attorney Caspari agrees that her
failure to deliver her case file for M.W. to successor counsel
constituted a violation of SCR 20:1.16(d).4 She also agrees that
4
SCR 20:1.16(d) provides:
(continued)
6
No. 2016AP617-D
her submission of invoices containing charges for tasks that she
did not actually perform and her failure to correct her invoices
or refund those fees for years constituted a violation of SCR
20:8.4(c).5
¶13 Count 4 of the stipulation relates to Attorney
Caspari's appointment in 2014 to represent I.W. in a criminal
case in the Racine County circuit court. On the day that I.W.'s
trial was to start, the circuit court judge asked Attorney
Caspari and the prosecutor whether there had been a negotiated
resolution to the charges against I.W. Attorney Caspari
responded that there was no negotiated resolution and asked for
an adjournment of the trial "due to the fact that we have a
material witness, an important witness for our case, unknown to
me left the state on Friday." The judge asked Attorney Caspari
whether the witness had been under subpoena, and Attorney
Caspari responded, "Yes." The witness referenced by Attorney
Caspari was I.W.'s mother, who had not been subpoenaed.
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.
5
20:8.4(c) provides: "It is professional misconduct for a
lawyer to: . . . . engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."
7
No. 2016AP617-D
Moreover, as evidenced by a subsequent email she sent to an SPD
director, Attorney Caspari had known prior to the trial date
that I.W.'s mother had intended to leave the state. Thus, her
statements to the circuit court had been false.
¶14 In Count 4 of the stipulation, Attorney Caspari admits
that her false statements to the circuit court, which she failed
to correct, violated SCR 20:3.3(a)(1).6
¶15 The final matter addressed in the stipulation is
Attorney Caspari's representation of A.H. in postconviction
proceedings. Attorney Caspari was appointed to serve as A.H.'s
postconviction counsel in January 2013. When an SPD
representative subsequently spoke with Attorney Caspari about
the status of A.H.'s case, she confirmed that she had received
the final transcript in the case on April 13, 2013, which
established a deadline of June 11, 2013, for Attorney Caspari to
file either a postconviction motion or a notice of appeal on
A.H.'s behalf. Attorney Caspari, however, failed to file either
a postconviction motion or a notice of appeal. She also did not
file a motion for an extension of the deadline, thereby allowing
A.H.'s appeal rights to lapse. Attorney Caspari did not inform
A.H. that she had failed to meet the deadline. Ultimately, the
SPD appointed another attorney as successor counsel for A.H. and
successfully moved the court of appeals to extend the deadline
6
SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail
to correct a false statement of material fact or law previously
made to the tribunal by the lawyer. . . ."
8
No. 2016AP617-D
for A.H. to file a postconviction motion, thereby reinstating
his appeal rights.
¶16 Attorney Caspari stipulates that her failure to pursue
postconviction or appellate relief on A.H.'s behalf in a timely
manner constituted a lack of diligence, in violation of SCR
20:1.3. She also stipulates that her failure to inform A.H.
that she had allowed his postconviction and appellate rights to
lapse constituted a violation of SCR 20:1.4(a)(3).7
¶17 The stipulation requests that the court suspend
Attorney Caspari's license to practice law in Wisconsin for a
period of 60 days, which is the level of discipline initially
sought by the OLR. In its memorandum in support of the
stipulation, the OLR points to two prior decisions in which this
court imposed 60-day suspensions for analogous conduct. In re
Disciplinary Proceedings Against Callahan, 2016 WI 8, 366 Wis.
2d 503, 874 N.W.2d 98 (imposing 60-day suspension for
professional misconduct that included failing to perform
necessary work, advancing a settlement offer not authorized by
client, misrepresenting settlement authority, and failing to
keep client informed of status of her matter); In re
Disciplinary Proceedings Against Fitzgerald, 2008 WI 101, 314
Wis. 2d 7, 752 N.W.2d 879 (accepting stipulation for 60-day
suspension for misconduct that included appearing in court on
behalf of clients during license suspension, billing the SPD for
7
SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
9
No. 2016AP617-D
court appearances during license suspension, misleading a county
clerk about the status of her license, and failing to cooperate
with the OLR's investigation). The OLR further notes that there
are both aggravating and mitigating factors here. The
aggravating factors include the fact that Attorney Caspari has
been privately reprimanded on a previous occasion, some evidence
of a dishonest motive, multiple offenses, and two patterns of
misconduct. On the mitigating side of the ledger are the fact
that the overcharge to the SPD was a small amount and was
ultimately repaid, Attorney Caspari's cooperation with the OLR's
investigation, and her prompt entry into a comprehensive
stipulation that admits her misconduct and resolves this
disciplinary proceeding. Thus, the OLR believes that a 60-day
suspension, consistent with Callahan and Fitzgerald, would be an
appropriate level of discipline in this matter.
¶18 After carefully reviewing this matter, we accept the
stipulation and impose the requested 60-day suspension. In
light of the fact that Attorney Caspari has recently refunded
the overcharges to the SPD, we do not impose any restitution
obligation. Finally, given the filing of a stipulation at the
outset of this proceeding that avoided litigation costs and the
need to appoint a referee, we do not impose any costs on
Attorney Caspari.
¶19 IT IS ORDERED that the license of Diane R. Caspari to
practice law in Wisconsin is suspended for a period of 60 days,
effective August 8, 2016.
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No. 2016AP617-D
¶20 IT IS FURTHER ORDERED that Diane R. Caspari 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.
¶21 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. 2016AP617-D
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