2016 WI 85
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP358-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael F. Bishop, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Michael F. Bishop,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BISHOP
OPINION FILED: October 18, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 85
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP358-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael F. Bishop, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, OCT 18, 2016
v. Diane M. Fremgen
Clerk of Supreme Court
Michael F. Bishop,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to Supreme Court Rule (SCR) 22.121 by the Office of Lawyer
1
SCR 22.12 provides as follows: Stipulation.
(1) The director may file with the complaint a
stipulation of the director and the respondent to the
facts, conclusions of law regarding misconduct, and
discipline to be imposed. The supreme court may
consider the complaint and stipulation without the
appointment of a referee, in which case the supreme
(continued)
No. 2016AP358-D
Regulation (OLR) and Attorney Michael F. Bishop. In the
stipulation, Attorney Bishop admits the misconduct alleged by
the OLR and agrees to a 60-day suspension of his Wisconsin law
license.
¶2 We adopt the stipulated facts and conclusions of law.
We agree that Attorney Bishop's misconduct warrants the
suspension of his Wisconsin law license for a period of 60 days.
The OLR does not seek either restitution or the costs of this
proceeding and we decline to impose either upon him.
court may approve the stipulation, reject the
stipulation, or direct the parties to consider
specific modifications to the stipulation.
(2) If the supreme court approves a stipulation,
it shall adopt the stipulated facts and conclusions of
law and impose the stipulated discipline.
(3) If the supreme court rejects a stipulation, a
referee shall be appointed and the matter shall
proceed as a complaint filed without a stipulation.
(3m) If the supreme court directs the parties to
consider specific modifications to the stipulation,
the parties may, within 20 days of the date of the
order, file a revised stipulation, in which case the
supreme court may approve the revised stipulation,
adopt the stipulated facts and conclusions of law, and
impose the stipulated discipline. If the parties do
not file a revised stipulation within 20 days of the
date of the order, a referee shall be appointed and
the matter shall proceed as a complaint filed without
a stipulation.
(4) A stipulation rejected by the supreme court
has no evidentiary value and is without prejudice to
the respondent's defense of the proceeding or the
prosecution of the complaint.
2
No. 2016AP358-D
¶3 Attorney Bishop was admitted to practice law in
Wisconsin in 1993. He practices in Milwaukee, Wisconsin. In
2014, Attorney Bishop received a consensual public reprimand for
several trust account violations. Public Reprimand of Michael
F. Bishop, 2014-2 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002658.html).
¶4 The matter presently before the court also involves
trust account violations, coupled with a failure to cooperate
with the OLR.
¶5 Between 2012 and 2014, Attorney Bishop maintained a
client trust account at BMO Harris Bank (BMO). On August 19,
2013, OLR sent Attorney Bishop a letter, informing him that it
had received notice of an overdraft on his client trust account.
The OLR directed Attorney Bishop to provide a written response
within 20 days of his receipt of the letter, and to provide
copies of his trust account's bank statements for May 2013 and
June 2013, a copy of his transaction register for May 2013 and
June 2013, and a copy of his client ledger relating to an
alleged $50 withdrawal. Attorney Bishop did not respond. He
also failed to respond to two subsequent notices from the OLR.
¶6 On January 10, 2014, OLR filed a motion asking this
court to issue an order to show cause as to why Attorney
Bishop's law license should not be suspended for his willful
failure to cooperate in the OLR investigation concerning his
conduct. This court issued the requested order. By January 22,
2014, Attorney Bishop had provided the OLR with enough
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No. 2016AP358-D
information to allow the OLR to continue its investigation, so
the OLR withdrew its motion and the investigation continued.
¶7 By letter dated February 26, 2014, the OLR directed
Attorney Bishop to inform the OLR whether he had opened a
business account subsequent to September 1, 2012, but Attorney
Bishop failed to respond.
¶8 On May 28, 2014, the OLR sent Attorney Bishop a second
letter requesting the same information. This time, Attorney
Bishop responded by email, stating "I have not had a business
account since 2012 ..."
¶9 During its investigation, the OLR discovered that in a
Waukesha County case in which Attorney Bishop represented the
defendant, the court ordered the return of $3,000 from the bail
deposit to be paid to Attorney Bishop. The Waukesha County
Clerk of Courts paid the $3,000 to Attorney Bishop and Attorney
Bishop deposited the check directly into his BMO trust account,
describing the deposit as a "$3,000.00 deposit for monies past
due." These funds should have been placed in a business
account.
¶10 On August 17, 2015, Attorney Bishop advised the OLR
that a chargeback on his trust account had resulted in an
overdraft. In response, the OLR requested certain trust account
records, including bank statements, a transaction register, and
client ledgers. Attorney Bishop provided some information, but
did not submit a transaction register or client ledgers for his
trust account. The OLR investigation revealed that Attorney
Bishop made numerous cash withdrawals from his trust account.
4
No. 2016AP358-D
¶11 On February 22, 2016, OLR filed a disciplinary
complaint in this matter, as amended on July 1, 2016. The OLR
complaint alleged the following seven counts of misconduct:
Count 1: By failing to cooperate with OLR's
investigation of a May 20, 2013 overdraft on his trust
account by failing to respond to OLR's letters of
August 19, 2013, September 23, 2013 and December 3,
2013, and by failing to respond to OLR's letter of
February 26, 2014, Bishop violated SCR 22.03(2) and
(6),2 as enforced via SCR 20:8.4(h).3
2
SCR 22.03(2) and (6) provides as follows:
(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
present any information deemed relevant to the
investigation.
(6) provides as follows: In the course of the
investigation, the respondents willful 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.
3
SCR 20:8.4(h) provides as follows: "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)."
5
No. 2016AP358-D
Count 2: By failing to maintain a business account
from 2012 through at least May of 2014, despite the
fact that he had a trust account during that time,
Bishop violated SCR 20:1.15(e)(8).4
Count 3: By depositing into and retaining in his Trust
Account at least $3,000 in earned fees, Bishop
violated SCR 20:1.15(b)(3).5
Count 4: By making at least 199 cash withdrawals from
his trust account between May 2, 2013 and July 1,
2015, totaling $50,097.82, Bishop violated SCR
20:1.15(e)(4)a.6
Count 5: By failing to maintain a transaction register
and client ledgers and failing to comply with record
keeping requirements, Bishop violated SCR
7
20:1.15(f)(l)a, b. and g.
4
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.
SCR 20:1.15(e)(8) provides as follows: "Each lawyer who
receives trust funds shall maintain at least one draft account,
other than the trust account, for funds received and disbursed
other than in the lawyer's trust capacity, which shall be
entitled 'Business Account,' 'Office Account,' 'Operating
Account,' or words of similar import."
5
SCR 20:1.15(b)(3) provides as follows: "No funds
belonging to the lawyer or law firm except funds reasonably
sufficient to pay monthly account service charges, may be
deposited or retained in a trust account."
6
SCR 20:1.15(e)(4)a provides as follows: "No disbursement
of cash shall be made from a trust account, or from a deposit to
a trust account, and no check shall be made payable to 'cash.'"
7
SCR 20:1.15(f)(l)a., b., and g., provides as follows:
(f) Record-keeping requirements for all trust
accounts.
(continued)
6
No. 2016AP358-D
(1) Draft accounts. Complete records of a trust
account that is a draft account shall include a
transaction register; individual client ledgers for
IOLTA accounts and other pooled trust accounts; a
ledger for account fees and charges, if law firm funds
are held in the account pursuant to sub. (b)(3);
deposit records; disbursement records; monthly
statements; and reconciliation reports, subject to all
of the following:
a. Transaction register. The transaction register
shall contain a chronological record of all account
transactions, and shall include all of the following:
1. the date, source, and amount of all deposits;
2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;
3. the date and amount of every other deposit or
deduction of whatever nature;
4. the identity of the client for whom funds were
deposited or disbursed; and
5. the balance in the account after each
transaction.
b. Individual client ledgers. A subsidiary ledger
shall be maintained for each client or 3rd party for
whom the lawyer receives trust funds that are
deposited in an IOLTA account or any other pooled
trust account. The lawyer shall record each receipt
and disbursement of a client's or 3rd party's funds
and the balance following each transaction. A lawyer
shall not disburse funds from an IOLTA or any pooled
trust account that would create a negative balance
with respect to any individual client or matter.
. . .
g. Reconciliation reports. For each trust
account, the lawyer shall prepare and retain a printed
reconciliation report on a regular and periodic basis
not less frequently than every 30 days. Each
(continued)
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No. 2016AP358-D
Count 6: By making 11 cash withdrawals from his trust
account, totaling $2,025.00, between August 4, 2015
and August 28, 2015, Bishop violated SCR
20:1.15(e)(4)a.8
Count 7: By failing to produce a transaction register
and client ledgers for his trust account, Bishop
violated SCR 20:1.15(e)(7).9
reconciliation report shall show all of the following
balances and verify that they are identical:
1. The balance that appears in the transaction
register as of the reporting date;
2. the total of all subsidiary ledger balances
for IOLTA accounts and other pooled trust accounts,
determined by listing and totaling the balances in the
individual client ledgers and the ledger for account
fees and charges, as of the reporting date; and
3. the adjusted balance, determined by adding
outstanding deposits and other credits to the balance
in the financial institution's monthly statement and
subtracting outstanding checks and other deductions
from the balance in the monthly statement.
8
SCR 20:1.15(e)(4)a provides: "No disbursement of cash
shall be made from a trust account or from a deposit to a trust
account, and no check shall be made payable to 'Cash.'"
9
SCR 20:1.15(e)(7) provides:
(7) All trust account records have public aspects
related to a lawyer's fitness to practice. Upon
request of the office of lawyer regulation, or upon
direction of the supreme court, the records shall be
submitted to the office of lawyer regulation for its
inspection, audit, use, and evidence under any
conditions to protect the privilege of clients that
the court may provide. The records, or an audit of
file records, shall be produced at any disciplinary
proceeding involving the lawyer, whenever material.
Failure to produce the records constitutes
unprofessional conduct and grounds for disciplinary
action.
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No. 2016AP358-D
¶12 In August 2016, the OLR and Attorney Bishop executed
the stipulation now before the court. In addition to
stipulating to the facts as set forth above, the parties
stipulated to discipline in the form of a 60-day suspension of
Attorney Bishop's Wisconsin law license.
¶13 The stipulation provides that it is not the result of
a plea bargain. Attorney Bishop also verifies that he fully
understands the allegations of misconduct, the ramifications if
this court should impose the stipulated level of discipline, his
right to contest the matter, and his right to consult with
counsel. He further verifies that his entry into the
stipulation was made knowingly and voluntarily, and that it
represents his admission of all misconduct and his assent to the
level and type of discipline sought by the OLR director.
¶14 The OLR filed a memorandum in support of the
stipulation. The memorandum discusses attorney disciplinary
cases that resulted in 60-day suspensions for misconduct,
including In re Disciplinary Proceedings Against Grogan, 2011 WI
7, 331 Wis. 2d 341, 795 N.W.2d 745. Attorney Grogan received a
60-day suspension for misconduct that is virtually identical to
the facts alleged in the complaint filed against Attorney
Bishop. Attorney Grogan failed to maintain a business account;
commingled funds; made cash withdrawals from the trust account
and failed to maintain certain trust account records. Attorney
Grogan also failed to cooperate with the OLR's investigations.
In addition, Attorney Grogan, like Attorney Bishop, had a prior
public reprimand. It also bears noting that the court imposed
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No. 2016AP358-D
several conditions on Attorney Grogan, one of which was a
requirement that he provide the OLR with "documentation
establishing that [he] has a business account." Id. at 349.
¶15 We adopt the stipulation and the stipulated facts and
conclusions of law, and we impose the stipulated discipline. We
agree that the seriousness of Attorney Bishop's misconduct
warrants the suspension of his Wisconsin law license for 60
days. The OLR does not seek restitution, so we impose none.
The OLR also does not seek costs, and, mindful that the
stipulation obviates the need for a referee, we do not impose
costs.
¶16 In its complaint, the OLR recommended that, as a
condition of his reinstatement, Attorney Bishop provide the OLR
with documentation establishing that he has established a
separate business account. The stipulation and supportive
memorandum do not address this condition, but we deem it
appropriate to impose this requirement to better ensure Attorney
Bishop's prospective compliance with the trust account rules.
¶17 IT IS ORDERED that the license of Michael F. Bishop to
practice law in Wisconsin is suspended for a period of 60 days,
effective November 28, 2016.
¶18 IT IS FURTHER ORDERED that Michael F. Bishop 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.
¶19 IT IS FURTHER ORDERED that, as a condition of his
reinstatement, and no later than two weeks prior to the date he
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No. 2016AP358-D
is eligible for reinstatement, Michael F. Bishop shall provide
the OLR with written notice and evidence that he has established
a business account.
¶20 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
¶21 IT IS FURTHER ORDERED that no costs will be imposed in
this matter.
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No. 2016AP358-D
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