2017 WI 11
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1971-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Thad M. Gegner, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Thad M. Gegner,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST GEGNER
OPINION FILED: February 17, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1971-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Thad M. Gegner, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 17, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Thad M. Gegner,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. The court has before it a report and
recommendation filed on October 12, 2016, by Referee James G.
Curtis. The report recommends that this court accept Attorney
Thad M. Gegner's petition for consensual license revocation,
revoke his license to practice law in Wisconsin, and order him
to pay restitution to certain aggrieved parties, including the
Wisconsin Lawyers' Fund for Client Protection (the Fund).
Attorney Gegner is the subject of a disciplinary proceeding
No. 2015AP1971-D
alleging that he committed 47 counts of misconduct in 11
different client matters, as well as an allegation of practicing
law after suspension. He is also the subject of four additional
pending Office of Lawyer Regulation (OLR) grievance matters that
have not yet been fully investigated by the OLR.
¶2 We agree with the referee that both revocation and
restitution are appropriate. We also agree with the referee's
recommendation that Attorney Gegner should pay the full costs of
this proceeding, which are $2,019.58 as of October 31, 2016.
¶3 Attorney Gegner was admitted to the practice of law in
Wisconsin in 2003. He does not have a disciplinary history.
His Wisconsin law license has been suspended since April 17,
2015, for non-cooperation with the OLR in certain of the matters
at issue in this case.
¶4 On September 28, 2015, the OLR filed a complaint
against Attorney Gegner, setting forth 24 counts of misconduct
over six client matters and an allegation of practicing law
after suspension. The complaint requested a two-year
suspension, plus payment of restitution and costs. On January
6, 2016, the OLR filed an amended complaint against Attorney
Gegner, setting forth 47 counts of misconduct over 11 client
matters and an allegation of practicing law after suspension.
The amended complaint requested revocation, plus payment of
restitution and costs. Attorney Gegner retained counsel. At
the parties' request, the referee stayed the proceedings while
the parties discussed the possibility of Attorney Gegner filing
a petition for consensual license revocation pursuant to Supreme
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No. 2015AP1971-D
Court Rule (SCR) 22.19. On September 22, 2016, Attorney Gegner
filed such a petition.
¶5 In his petition, Attorney Gegner acknowledges that he
cannot successfully defend himself against the allegations in
the amended complaint, which is attached to his petition as
Appendix A. He also acknowledges that he cannot successfully
defend himself against four pending investigative matters that
have not been publicly charged, a summary of which is attached
to his petition as Appendix B.
¶6 On September 29, 2016, the OLR filed a recommendation
supporting Attorney Gegner's SCR 22.19 petition. The referee
filed a report on October 12, 2016, recommending revocation and
restitution. On November 30, 2016, the referee filed a
recommendation on costs, in which he advised the court to impose
full costs on Attorney Gegner. On October 26, 2016, the OLR
filed a restitution statement, which it later supplemented in a
December 29, 2016 filing. In those filings, the OLR states that
Attorney Gegner should pay restitution as recommended by the
referee.1
1
The referee determined that Attorney Gegner owes
restitution to his former clients Dianna C., Kristin L., and
Diane J., as well as to a subrogated party (American Family
Mutual Insurance Company) in the Diane J. matter. The referee
further determined that Attorney Gegner owes restitution to the
Wisconsin Lawyers' Fund for Client Protection for amounts it
paid to former clients Dianna C., Diane J., Cody W., Donald C.,
and Jose O.
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No. 2015AP1971-D
¶7 No appeal has been filed in this matter, so our review
proceeds pursuant to SCR 22.17(2).
¶8 We revoke Attorney Gegner's Wisconsin law license
effective the date of this order. The scope of his misconduct
is vast and troubling. It is not necessary to set forth the
particular factual allegations of every instance of misconduct
in every client matter involved in this case. Doing so would be
overly cumbersome, given that the amended complaint alone
alleges almost four dozen misconduct counts, described in some
231 separately numbered paragraphs. A synopsis of the
information contained in the attachments to Attorney Gegner's
petition for revocation will provide a sufficient description of
the nature and scope of his professional misconduct.
¶9 As stated above, the OLR's amended complaint in this
disciplinary proceeding, attached as Appendix A to the
revocation petition, sets forth 47 counts of misconduct
involving 11 different clients and an allegation of practicing
law after suspension. The alleged misconduct involved
violations of the following supreme court rules: SCR 20:1.3
(failing to act with reasonable diligence and promptness in
representing a client); SCR 20:1.4(a)(3) (failing to keep a
client reasonably informed about the status of a matter); SCR
20:1.4(a)(4) (failing to promptly comply with reasonable
requests by the client for information); SCR 20:1.5(b)(3)
(failing to promptly respond to a client's request for
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No. 2015AP1971-D
information concerning fees and expenses); SCR 20:1.15(b)(4)2
(failing to deposit advanced payments of fees and costs into
trust account); SCR 20:1.15(d)(1) (failing to notify a client
promptly after receiving funds in which a client has an interest
and promptly deliver the funds absent an agreement or legal
requirement to do otherwise); SCR 20:1.16(d) (failing to take
steps to protect client's interests upon termination of
representation); SCR 20:3.3(a)(1) (knowingly making a false
statement of fact to a tribunal); SCR 20:3.4(c) (knowingly
disobeying an obligation under the rules of a tribunal); SCR
20:8.4(c) (engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation); SCR 22.03(2) and (6), enforced via
SCR 20:8.4(h) (failing to promptly and fully cooperate with an
OLR investigation); and SCR 31.10(1) (engaging in the practice
of law after a suspension for failing to satisfy continuing
legal education requirements).
¶10 The OLR's summary of misconduct allegations in the
four pending investigative matters that have not been publicly
charged, attached as Appendix B to the revocation petition,
summarizes alleged violations or potential violations of the
following supreme court rules: SCR 20:1.3 (failing to act with
2
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.
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No. 2015AP1971-D
reasonable diligence and promptness in representing a client);
SCR 20:1.4(a)(3) (failing to keep a client reasonably informed
about the status of a matter); SCR 20:1.4(a)(4) (failing to
promptly comply with reasonable requests by the client for
information); SCR 20:1.5(a) (charging an unreasonable fee);
SCR 20:1.15(d)(1) (failing to notify a client promptly after
receiving funds in which a client has an interest and promptly
deliver the funds absent an agreement or legal requirement to do
otherwise); SCR 20:1.15(g)(1) (failing to notify clients of
withdrawal of non-contingent fees from trust account);
SCR 20:1.16(d) (failing to take steps to protect a client's
interests upon termination of representation); SCR 20:3.4(c)
(knowingly disobeying an obligation under the rules of a
tribunal); SCR 20:8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation); SCR 21.15(4)
(failing to cooperate with an OLR investigation); SCR 22.03(2)
and (6), enforced via SCR 20:8.4(h) (failing to promptly and
fully cooperate with an OLR investigation); and SCR 22.26
(failing to comply with the duties of a person whose license to
practice law in Wisconsin has been suspended).
¶11 We find instructive the referee's synopsis of Attorney
Gegner's misconduct:
The facts established by OLR portray a repeated
pattern of serious misconduct from 2011 into 2015.
The facts establish a law practice that was spiraling
out of control. Mr. Gegner would fail to communicate
with his clients and would fail to perform the legal
work and services that were necessary. He would at
times misrepresent the status of his work to both the
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No. 2015AP1971-D
clients and court. He misused and converted client
funds and failed to provide any accounting. The
record establishes numerous aggravating factors in
this case and based on the Petition for Revocation by
Consent, no mitigating factors have been shown.
"[T]o make matters worse," the referee noted, "there are at
least 13 counts relating to Mr. Gegner's obstinate failure to
cooperate with OLR's investigations, contrary to SCR 22.03(2)
and (6)."
¶12 Attorney Gegner's petition for consensual revocation
states that he cannot successfully defend against the
allegations of professional misconduct set forth above. His
petition asserts that he is seeking consensual revocation
freely, voluntarily, and knowingly, and that restitution should
be imposed. He states that he understands he is giving up his
right to contest the OLR's allegations. He has counsel in this
matter. The OLR supports Attorney Gegner's petition.
¶13 As stated above, Referee Curtis has filed a report in
this matter. The referee determined, based on Attorney Gegner's
petition and the OLR's response, that there exists clear,
satisfactory, and convincing evidence that Attorney Gegner has
engaged in the misconduct alleged in the OLR's amended complaint
in this disciplinary proceeding and in the OLR's summary of the
matters still in the investigative process. He recommends that
we accept the petition, order restitution, and revoke Attorney
Gegner's license to practice law.
¶14 When reviewing a report and recommendation in an
attorney disciplinary proceeding, we affirm a referee's findings
of fact unless they are found to be clearly erroneous. In re
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No. 2015AP1971-D
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305
Wis. 2d 71, 740 N.W.2d 125. We review the referee's conclusions
of law on a de novo basis. Id. We determine the appropriate
level of discipline given the particular facts of each case,
independent of the referee's recommendation, but benefitting
from it. In re Disciplinary Proceedings Against Widule, 2003 WI
34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶15 We agree with the referee that Attorney Gegner's
petition for consensual revocation should be granted. Attorney
Gegner has engaged in a widespread pattern of serious
professional misconduct that has harmed his clients. He is
either unwilling or unable to conform his conduct to the
standards that are required to practice law in this state.
Anything less than a revocation of his law license would unduly
depreciate the seriousness of his misconduct, fail to protect
the public and the court system from further misconduct, and
inadequately deter similar misbehavior by other attorneys.
Revocation is clearly deserved.
¶16 We now consider restitution. The referee's
recommendations for restitution are consistent with Attorney
Gegner's petition and the OLR's recommendation on that petition.3
3
The referee noted in his report that, according to the
OLR's recommendation on Attorney Gegner's SCR 22.19 petition,
the Fund authorized payments to some of Attorney Gegner's former
clients after he agreed in his petition to pay restitution to
them. The referee recommended that Attorney Gegner make
restitution to the Fund for these payments; Attorney Gegner has
not objected.
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No. 2015AP1971-D
We order Attorney Gegner to pay $652.88 to former client Dianna
C.; $1,000 to former client Kristin L.; $2,638.90 to American
Family Mutual Insurance Company; $3.10 to former client Diane
J.; and $10,894 to the Wisconsin Lawyers' Fund for Client
Protection, attributable to the Fund's payments to the following
former clients: $3,100 to Dianna C., $2,694 to Diane J., $1,800
to Cody W., $1,700 to Donald C., and $1,600 to Jose O.
¶17 We make one further observation (and ruling) on the
issue of restitution. In the OLR's December 29, 2016
supplemental restitution statement, the OLR stated that it would
not seek restitution for a $1,000 payment to Attorney Gegner's
former client, Michelle A., which the Fund approved on December
14, 2016. The OLR explained that, notwithstanding this payment
by the Fund, the OLR's investigation did not identify a
reasonably ascertainable amount of restitution to seek in the
Michelle A. matter, and therefore it had not sought restitution
in this matter, and would not do so now. Mindful that the Fund
is financed by State Bar of Wisconsin members' annual fees, we
fail to see why the $1,000 payment by the Fund to Michelle A.
should be financed by members of the bar who have not engaged in
misconduct, as opposed to Attorney Gegner, who has conceded his
misconduct in the Michelle A. matter. We acknowledge that the
Fund's $1,000 payment to Michelle A. was not addressed in the
consensual revocation petition or in the referee's report, but
we cannot envision any scenario in which Attorney Gegner could
avoid reimbursing the Fund for this payment. We therefore order
Attorney Gegner to reimburse the Fund in this amount. To the
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No. 2015AP1971-D
extent that Attorney Gegner disagrees with this court's ruling
on this point, he is free to move the court to reconsider its
ruling.
¶18 Finally, and consistent with the referee's
recommendation, we determine that Attorney Gegner should be
required to pay the full costs of this proceeding. See SCR
22.24(1m).
¶19 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶20 IT IS ORDERED that the license of Thad M. Gegner to
practice law in Wisconsin is revoked, effective the date of this
order.
¶21 IT IS FURTHER ORDERED that Thad M. Gegner pay
restitution in the following amounts:
$652.88 to former client Dianna C.;
$1,000 to former client Kristin L.;
$2,638.90 to American Family Mutual
Insurance Company;
$3.10 to former client Diane J.; and
$11,894 to the Wisconsin Lawyers' Fund for
Client Protection, attributable to the
Fund's payments to the following former
clients: $3,100 to Dianna C.; $2,694 to
Diane J.; $1,800 to Cody W.; $1,700 to
Donald C.; $1,600 to Jose O; and $1,000 to
Michelle A.
¶22 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Thad M. Gegner shall pay to the Office of Lawyer
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No. 2015AP1971-D
Regulation the costs of this proceeding, which are $2,019.58 as
of October 31, 2016.
¶23 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶24 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Thad M. Gegner shall comply with the provisions
of SCR 22.26 concerning the duties of a person whose license to
practice law in Wisconsin has been revoked.
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No. 2015AP1971-D
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