2016 WI 83
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP51-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Thor Templin, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Thor Templin,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST TEMPLIN
OPINION FILED: OCTOBER 12, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed)
DISSENTED: BRADLEY, A.W., J. dissent (opinion filed)
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 83
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP51-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Thor Templin, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, OCT 12, 2016
v. Diane M. Fremgen
Clerk of Supreme Court
Thor Templin,
Respondent
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee Jonathan V. Goodman's
recommendation that the court declare Attorney Thor Templin in
default and suspend his Wisconsin law license for a period of 60
days for professional misconduct in connection with his work on
three client matters and his non-cooperation with the Office of
Lawyer Regulation's (OLR) investigation into that misconduct.
The referee also recommended that Attorney Templin be required
to pay the full costs of this proceeding, which total $1,041.40
as of June 20, 2016.
No. 2016AP51-D
¶2 Because no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Templin's failure to
answer the complaint filed by the OLR, the OLR is entitled to a
default judgment. We also agree with the referee that Attorney
Templin's professional misconduct warrants a 60-day suspension
of his Wisconsin law license, consecutive to the six-month
suspension Attorney Templin is currently serving. We also agree
with the referee that Attorney Templin should be ordered to pay
the full costs of the proceeding.
¶3 Attorney Templin was admitted to the practice of law
in Wisconsin in May 2008. His disciplinary history consists of:
(1) a consensual private reprimand for failing to act diligently
and communicate appropriately in a client matter, Private
Reprimand, 2011-04 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002344.html); and (2) a
six-month suspension, commencing on May 3, 2016, for 12 counts
of misconduct involving four clients, including filing frivolous
motions, failing to respond to client requests for information,
1
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court shall
review the referee's report; adopt, reject or modify
the referee's findings and conclusions or remand the
matter to the referee for additional findings; and
determine and impose appropriate discipline. The
court, on its own motion, may order the parties to
file briefs in the matter.
2
No. 2016AP51-D
charging an unreasonable fee, and failing to provide competent
representation, In re Disciplinary Proceedings Against Templin,
2016 WI 18, 367 Wis. 2d 351, 877 N.W.2d 107.
¶4 On January 7, 2016, the OLR filed the current
complaint against Attorney Templin. The complaint alleges six
counts of professional misconduct in connection with his work on
three client matters.
¶5 Counts 1-3 of the OLR's complaint arose out of
Attorney Templin's representation of E.S. In May 2009, E.S.
hired Attorney Templin to help resolve certain property disputes
related to the estate of E.S.'s mother. E.S. claimed that her
siblings had defrauded the estate to her disadvantage. In 2009,
Attorney Templin filed an action for special administration in
Milwaukee County, but took no further action in that matter.
¶6 Although Attorney Templin exchanged correspondence
with an attorney representing E.S.'s siblings, it was not until
April 2011 that Attorney Templin filed suit against E.S.'s
siblings alleging fraud. Attorney Templin then failed to serve
the summons and complaint on the defendants, and the court
dismissed the lawsuit in July 2012.
¶7 In October 2013, Attorney Templin filed the same
lawsuit against E.S.'s siblings alleging fraud. But Attorney
Templin again failed to serve the summons and complaint on the
defendants, and the court dismissed the lawsuit in May 2014.
¶8 In April 2014, E.S. filed a grievance against Attorney
Templin with the OLR. In September 2014, the OLR sent Attorney
Templin its notice of formal investigation requesting Attorney
3
No. 2016AP51-D
Templin's response to the allegations raised by E.S.'s
grievance. Attorney Templin failed to respond.
¶9 In October 2014, the OLR sent Attorney Templin a
second letter reminding him of his duty to cooperate with the
OLR and requesting a response by a certain date. Attorney
Templin failed to respond.
¶10 The OLR then emailed to Attorney Templin electronic
copies of the initial notice of formal investigation and the
second investigative letter and advised Attorney Templin that a
response was due. Attorney Templin responded to the email and
told the OLR that he had placed a response in the mail on that
same day. The OLR did not receive Attorney Templin's response.
¶11 Attorney Templin only responded to the OLR's grievance
after this court ordered him to show cause why his license
should not be suspended for failing to cooperate in an OLR
investigation.
¶12 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Templin's representation of
E.S.:
Count One: By failing to achieve service on the
defendants in two separately filed lawsuits,
resulting in the dismissal of both lawsuits,
Attorney Templin violated SCR 20:1.1.2
2
SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
4
No. 2016AP51-D
Count Two: By failing to diligently pursue
meaningful action on behalf of his client over a
period of four years, Attorney Templin violated
SCR 20:1.3.3
Count Three: By failing to timely provide
relevant information to OLR in the E.S. matter,
Attorney Templin violated SCR 22.03(2)4 and SCR
22.03(6),5 as enforced through SCR 20:8.4(h).6
¶13 Count 4 of the OLR's complaint arose out of Attorney
Templin's representation of J.A.M. Repeating all the
3
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
4
SCR 22.03(2) provides:
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 present any
information deemed relevant to the investigation.
5
SCR 22.03(6) provides, "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."
6
SCR 20:8.4(h) provides: "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(6), or SCR
22.04(1)."
5
No. 2016AP51-D
allegations of the J.A.M. matter, which we deem admitted by
virtue of Attorney Templin's default (see infra at ¶24), is
unnecessary. It is sufficient to describe the pattern that
Attorney Templin generally followed in his work on the J.A.M.
matter.
¶14 The J.A.M. matter involved a dispute over real estate
owned by J.A.M. Over a year into the representation, J.A.M.'s
daughter, L.B., contacted Attorney Templin and asked for
information about the case. Attorney Templin chose not to
communicate with L.B. because he had not been specifically
authorized by J.A.M. to do so.
¶15 In light of L.B.'s inability to communicate with
Attorney Templin, J.A.M. signed a "Designation of Agent or Power
of Attorney," which gave broad general powers to L.B. to act on
her mother's behalf, and explicitly gave L.B. authorization to
receive a copy of the entire case file and to speak with
Attorney Templin. In July 2014, L.B. wrote Attorney Templin and
enclosed a copy of the "Designation of Agent or Power of
Attorney." L.B. asked that Attorney Templin provide her with a
copy of the entire case file. Attorney Templin did not comply
with L.B.'s request for the file, nor any of her subsequent
requests for the file, including requests that L.B. made after
Attorney Templin withdrew from representing J.A.M. Attorney
Templin provided a copy of J.A.M.'s file to the OLR in March
2015, following the OLR's specific request for the file. The
OLR in turn forwarded the file to L.B.
6
No. 2016AP51-D
¶16 The OLR's complaint alleged the following count of
misconduct with respect to Attorney Templin's work on J.A.M.'s
matter:
Count Four: By failing to comply with L.B.'s
multiple requests following termination of
representation to obtain a copy of J.A.M.'s file,
Attorney Templin violated SCR 20:1.16(d).7
¶17 Counts 5 and 6 of the OLR's complaint arose out of
Attorney Templin's representation of P.D.P. In November of
2011, P.D.P. was involved in an automobile accident and was
cited for inattentiveness. P.D.P. admitted fault.
¶18 In January 2013, State Farm Insurance Company (State
Farm) sued P.D.P. to recover property damages caused by P.D.P.
to an insured's vehicle. State Farm served its Summons and
Complaint by publication. When P.D.P. failed to answer the
suit, State Farm filed a motion for default judgment. In July
2013, the circuit court granted judgment to State Farm in the
amount of $9,013.88 plus costs and attorney's fees. P.D.P.
received a letter from the Wisconsin Department of
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.
7
No. 2016AP51-D
Transportation advising her that her driver's license was
suspended because of the unpaid State Farm judgment.
¶19 P.D.P. hired Attorney Templin in May 2014 to try to
reopen the default judgment entered against her in July 2013, or
to otherwise resolve the matter with State Farm. Attorney
Templin prepared a written fee agreement, but took no immediate
action on the matter. After about one month, P.D.P. called
Attorney Templin multiple times and left numerous messages to
inquire about the case, but she was unable to speak with
Attorney Templin. During a subsequent meeting between Attorney
Templin and P.D.P. and her husband, Attorney Templin promised
that he would contact State Farm and try to resolve the matter,
yet he did nothing further on the case. Attorney Templin failed
to return subsequent telephone calls from P.D.P. and was never
available when P.D.P. traveled to Attorney Templin's office to
meet with him. In December 2014, Attorney Templin filed a
motion to reopen the default judgment entered against P.D.P.
The circuit court denied the motion, noting that it was "not
timely" and not "made within a reasonable time."
¶20 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Templin's representation of
P.D.P.:
Count Five: By failing to file a motion to
reopen a default judgment on behalf of his client
8
No. 2016AP51-D
in a timely fashion, Attorney Templin violated
SCR 20:1.3.8
Count Six: By failing to respond to his client's
multiple requests for information regarding her
case, Attorney Templin violated SCR 20:1.4(a)(4).9
¶21 The OLR personally served its complaint and an order
to answer on Attorney Templin. Attorney Templin failed to file
an answer to the OLR complaint. The OLR moved for default
judgment, which the OLR served by mail on Attorney Templin.
¶22 The referee filed a report recommending that this
court grant the OLR's motion for default judgment. In so doing,
the referee deemed the allegations in the OLR's complaint to be
established. The referee recommended a 60-day suspension of
Attorney Templin's Wisconsin law license, which was the sanction
the OLR sought in its complaint. The referee recommended that
this 60-day suspension should run consecutive to the six-month
suspension imposed in In re Disciplinary Proceedings Against
Templin, 367 Wis. 2d 351. The referee also recommended the
imposition of the full costs of this proceeding against Attorney
Templin.
¶23 Attorney Templin did not appeal from the referee's
report and recommendation. Thus, we proceed with our review of
the matter pursuant to SCR 22.17(2). We review a referee's
findings of fact subject to the clearly erroneous standard. See
8
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
9
SCR: 20:1.4(a)4 provides: "a lawyer shall promptly comply
with reasonable requests by the client for information."
9
No. 2016AP51-D
In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the appropriate
level of discipline independent 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 We agree with the referee that Attorney Templin should
be declared in default. Although the OLR effected personal
service of its complaint, and although the OLR served its motion
for default judgment on Attorney Templin by mail, he failed to
appear or present a defense. Accordingly, we deem it
appropriate to declare him in default. In addition, the referee
properly relied on the allegations of the complaint, which were
deemed admitted. See In re Disciplinary Proceedings Against
Coplien, 2010 WI 109, ¶¶10-11, 329 Wis. 2d 311, 788 N.W.2d 376.
We therefore accept the referee's findings of fact based on the
allegations of the complaint. We also agree with the referee
that those findings of fact adequately support the legal
conclusions of professional misconduct with respect to the six
counts of misconduct alleged in the complaint.
¶25 We are satisfied that the record supports the
imposition of a 60-day license suspension. We have imposed a
60-day suspension in previous, arguably similar cases. See,
e.g., In re Disciplinary Proceedings Against Lister, 2010 WI
108, 329 Wis. 2d 289, 787 N.W.2d 820 (attorney who had been
disciplined on two prior occasions received a 60–day suspension
for lack of diligence, failing to keep a client informed,
10
No. 2016AP51-D
failing to forward the client's file to successor counsel and
refund advanced fee payments, and failing to cooperate with an
investigation); In re Disciplinary Proceedings Against Anderson,
2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100 (attorney who had
been disciplined on three prior occasions received a 60–day
suspension for lack of diligence, failing to keep a client
informed, and failing to explain matters to a client); In re
Disciplinary Proceedings Against Theobald, 2010 WI 102, 329
Wis. 2d 1, 786 N.W.2d 834 (attorney who had been disciplined on
two prior occasions received a 60–day suspension for lack of
diligence and failing to keep a client informed).
¶26 We further agree with the referee that the 60-day
suspension should run consecutive to Attorney Templin's present
six-month suspension, which began on May 3, 2016. In re
Disciplinary Proceedings Against Templin, 367 Wis. 2d 351, ¶42.
We are confident that, if the OLR had brought all of the
misconduct counts in the instant case and in his previous
disciplinary case in a single proceeding, the proper sanction
for all of the misconduct would have exceeded the six-month
suspension that we previously imposed. A consecutively imposed
suspension is therefore in order. See In re Disciplinary
Proceedings Against Voss, 2015 WI 104, ¶24, 365 Wis. 2d 442, 871
N.W.2d 859.
¶27 We additionally note that on June 1, 2016, Attorney
Templin filed a letter with the court in which he asked that we
11
No. 2016AP51-D
accept the voluntary resignation of his law license in lieu of
issuing this decision.10 He stated that he is not practicing law
now, and that he "would likely not" return to the practice of
law before June 2018. Thus, Attorney Templin argued, a
suspension of his law license would be pointless, as he intends
to refrain from practicing law for a period longer than any
suspension period he currently faces.
¶28 By virtue of issuing this decision, we have obviously
rejected Attorney Templin's claim that his offer to resign his
law license for a duration of his choosing ought to render this
disciplinary proceeding unnecessary. To be sure, our rules
permit a lawyer who is the subject of an OLR investigation or
the respondent in an OLR disciplinary proceeding to agree to
surrender his or her law license instead of defending against
misconduct charges. To do so, however, the lawyer must be
willing to admit to having engaged in professional misconduct,
and——important here——must be willing to wait five years before
applying for reinstatement. See SCR 22.19; SCR 22.29(2).
Attorney Templin is apparently not willing to agree to the
voluntary revocation of his license given his statement that he
might wish to return to the practice of law within two years.
Because Attorney Templin's proffered resignation does not meet
the requirements of SCR 22.19, we decline to accept it.
10
We note that Attorney Templin attempted to voluntarily
resign his law license during the pendency of In re Disciplinary
Proceedings Against Templin, 367 Wis. 2d 351, ¶36. The court
did not grant this request.
12
No. 2016AP51-D
¶29 We turn now to the issue of costs, which total
$1,041.40 as of June 20, 2016. In his June 1, 2016 letter to
the court, Attorney Templin argued that he should not have to
pay the costs associated with this disciplinary proceeding
because the misconduct counts in this proceeding could have been
included with those brought in In re Disciplinary Proceedings
Against Templin, 367 Wis. 2d 351. Attorney Templin claimed that
consolidating the counts in this manner would have eliminated
any costs associated with the instant proceeding. Attorney
Templin also claimed that he should bear no costs because he
informed the OLR that he wanted to resign before the OLR filed
the complaint in this matter.
¶30 We are not convinced by Attorney Templin's arguments.
Our general practice is to assess full costs against a
disciplined lawyer. See SCR 22.24(1m). This is so because it
is only fair that a disciplined lawyer "should shoulder, to the
extent the lawyer is able, the costs of an OLR proceeding that
the lawyer's misconduct necessitated, rather than transferring
those costs to the other members of the bar who have not engaged
in misconduct." See In re Disciplinary Proceedings Against
Stern, 2016 WI 6, ¶13, 366 Wis. 2d 431, 874 N.W.2d 93. There is
no doubt that Attorney Templin's misconduct, which he has never
disputed, necessitated these proceedings. We fail to see why
Attorney Templin's proffered resignation, which did not meet the
requirements of SCR 22.19, should operate to shift costs away
from him and towards other members of the bar. We also fail to
see why a consolidation of the instant counts with those brought
13
No. 2016AP51-D
in Attorney Templin's previous disciplinary matter would have
eliminated all costs associated with this proceeding, as
Attorney Templin claims. While such consolidation may have led
to certain efficiencies (though Attorney Templin fails to
identify them),11 the bulk of the costs were unavoidable; for
example, both the pleadings and the referee's report in this
case needed to be prepared, and these tasks required the
expenditure of time and money regardless of whether the
misconduct counts were consolidated in one proceeding or not.
In short, Attorney Templin's conclusory objection to costs does
not compel us to exercise our discretion to reduce them.
¶31 Finally, we note that the OLR did not seek restitution
in this case. None is ordered.
¶32 IT IS ORDERED that the license of Thor Templin is
suspended for a period of 60 days, to run consecutive to the
discipline imposed in In re Disciplinary Proceedings Against
Templin, 2016 WI 18, ¶42, 367 Wis. 2d 351, 877 N.W.2d 107.
¶33 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thor Templin shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶34 IT IS FURTHER ORDERED that compliance with all
conditions of this decision is required for reinstatement. See
SCR 22.28(2).
11
See SCR 22.24(2)(requiring a respondent who objects to a
statement of costs to "explain, with specificity, the reasons
for the objection and . . . state what he or she considers to be
a reasonable amount of fees").
14
No. 2016AP51-D.ssa
¶35 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam. I write separately to discuss three issues.
¶36 The first issue relates to restitution. Justice Ann
Walsh Bradley, in her dissent, would order Attorney Templin to
pay as restitution to P.D.P. the amount of any fees he received
in connection with his representation of P.D.P. The Office of
Lawyer Regulation (OLR) did not ask for restitution in its
complaint. Restitution is a form of discipline, see SCR
21.16(1m)(em),1 and we have often said that this court is free to
impose whatever discipline it deems appropriate. See, e.g., In
re Disciplinary Proceedings Against Smead, 2011 WI 102, ¶15, 338
Wis. 2d 23, 806 N.W.2d 631.
¶37 But where, as here, we have declared an attorney to be
in default, the question arises whether we may impose a form of
discipline that the OLR did not seek in its complaint? Or, in
default cases, is our otherwise wide-ranging ability to impose
appropriate discipline cabined to the discipline the OLR
requested in its complaint? The answer to this issue is not
clear in our rules or case law, and is therefore worthy of
study.
¶38 The second issue is that the per curiam does not
identify when Attorney Templin may apply for reinstatement.
1
SCR 21.16(1m) provides: Any of the following may be
imposed on an attorney as discipline for misconduct
pursuant to the procedure set forth in SCR chapter 22:
. . .
(em) Restitution, as provided under sub. (2m).
1
No. 2016AP51-D.ssa
Supreme Court Rule 22.29(1) states: "A petition for
reinstatement of a license suspended for a definite period may
be filed at any time commencing three months prior to the
expiration of the suspension period." In Attorney Templin's
previous disciplinary matter, In re Disciplinary Proceedings
Against Templin, 2016 WI 18, ¶42, 367 Wis. 2d 351, 877 N.W.2d
107, we ordered a six-month suspension of his license,
commencing on May 3, 2016. This suspension would have expired
on November 3, 2016. But by virtue of the consecutively imposed
60-day suspension ordered in this case, Attorney Templin's
suspension period has been extended to January 2, 2017. I would
make clear that, under SCR 22.29(1), Attorney Templin may not
petition for reinstatement until three months before this
extended date of January 2, 2017.
¶39 The third issue is one that I have raised numerous
times. The OLR disciplinary system is about 15 years old. I
repeat my numerous requests that the court review the lawyer
disciplinary system and the Rules of Professional Conduct for
Attorneys. The instant case presents issues that should be
considered in such reviews. See, e.g., Rule Petition 14-06
(Abrahamson, J., concurring); and Rule Petition 15-01
(Abrahamson, J., dissenting); In re Disciplinary Proceedings
Against Johns, 2014 WI 32, 353 Wis. 2d 746, 847 N.W.2d 179
(Abrahamson, C.J., dissenting); In re Disciplinary Proceedings
Against Kratz, 2014 WI 31, 353 Wis. 2d 696, 851 N.W.2d 219
(Abrahamson, C.J., concurring; Prosser, J., concurring in part
and dissenting in part).
2
No. 2016AP51-D.ssa
¶40 For the foregoing reasons, I write separately.
3
No. 2016AP51-D.awb
¶41 ANN WALSH BRADLEY, J. (dissenting). I would order
Attorney Templin to pay as restitution to P.D.P. the amount of
any fees he received in connection with his representation of
P.D.P.
¶42 For the foregoing reason, I dissent.
1
No. 2016AP51-D.awb
1