2017 WI 41
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP380-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Alan R. Stewart, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Alan R. Stewart,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST STEWART
OPINION FILED: April 26, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 41
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP380-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Alan R. Stewart, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, APR 26, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Alan R. Stewart,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee William Eich approving a stipulation filed by the
Office of Lawyer Regulation (OLR) and Attorney Alan R. Stewart.
Attorney Stewart stipulated to the facts underlying the ll
counts of misconduct alleged in the OLR's complaint and joined
the OLR in jointly recommending a nine-month suspension of
Attorney Stewart's license to practice law in Wisconsin. The
referee agreed that a nine-month suspension was appropriate.
No. 2016AP380-D
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law and agree that
a nine-month suspension is an appropriate sanction for Attorney
Stewart's misconduct. We also find it appropriate to impose the
full costs of this proceeding, which are $645.46 as of February
13, 2017, on Attorney Stewart. We further agree that Attorney
Stewart should reimburse the Wisconsin Lawyers' Fund for Client
Protection (the Fund) in the amount of $4,400 for funds it paid
to one client, and he should be required to pay restitution to
F.W. in the amount of $8,000.
¶3 Attorney Stewart was admitted to practice law in
Wisconsin in 1992. His current address is in Appleton,
Wisconsin. His law license has been suspended since February
2015 for failure to cooperate in two OLR investigations. His
Wisconsin license is also suspended for failure to comply with
continuing legal education requirements, failure to pay State
Bar dues, and failure to file required trust account
certifications. On March 19, 2001, Attorney Stewart was
initially registered as a patent attorney with the United States
Patent and Trademark Office (USPTO). Attorney Stewart is not
currently registered as a patent attorney with the USPTO. As of
July 16, 2015, he is registered only as a patent agent with the
USPTO.
¶4 On February 24, 2016, the OLR filed a complaint
against Attorney Stewart alleging 11 counts of misconduct. The
first six counts arose out of his representation of A.H. and
C.H. (the Hs). The Hs contacted Attorney Stewart in November
2
No. 2016AP380-D
2013 to discuss the possibility of hiring him to represent them
in connection with patenting an invention. In early January of
2014, the Hs hired Attorney Stewart to draft and file a non-
provisional patent application. They paid Attorney Stewart a
$4,400 advanced fee to represent them in the matter.
¶5 Attorney Stewart never drafted the non-provisional
patent application, and he failed to perform any meaningful work
in the matter. Attorney Stewart failed to respond to several
telephone calls and emails from the Hs requesting information,
and he did not keep the Hs reasonably informed about the status
of their matter. Attorney Stewart did not refund to the Hs the
$4,400 advanced fee in spite of their multiple requests for a
refund. Attorney Stewart has not returned the Hs' product
sample and papers even after they requested that he do so. The
Hs filed an application for reimbursement in the amount of
$4,400 with the Fund, and in December 2014, the Fund approved
payment to the Hs in that amount.
¶6 The Hs filed a grievance against Attorney Stewart in
May 2014. The OLR provided Attorney Stewart with written notice
of its formal investigation of the grievance and of his duty to
cooperate with the investigation of the grievance in September
2014. Attorney Stewart was informed that his written response
to the grievance was to be submitted on or before October 6,
2014. Attorney Stewart did not respond. He also failed to
respond to a follow-up letter sent on October 13, 2014 that was
sent by both certified and first class mail, nor did he respond
to a November 19, 2014 letter that was personally served upon
3
No. 2016AP380-D
him. In December 2014, the OLR filed with this court a notice
of motion and motion requesting an order to show cause as to why
Attorney Stewart's license should not be suspended for failing
to cooperate in two OLR investigations. This court issued an
order requiring Attorney Stewart to show cause in writing why
the OLR's motion should not be granted and his license to
practice law in Wisconsin should not be temporarily suspended.
Attorney Stewart failed to respond to this court's order. On
February 10, 2015, this court granted the OLR's motion and
temporarily suspended Attorney Stewart's Wisconsin law license.
His license remains temporarily suspended.
¶7 The OLR's complaint alleged the following counts of
misconduct with respect to his representation of the Hs:
Count One: By failing to complete and file the non-
provisional patent application, and by otherwise
failing to act in furtherance of the Hs' interests,
Attorney Stewart violated SCR 20:1.3.1
Count Two: By failing to keep the Hs reasonably
informed regarding the status of the matter, and by
failing to respond to the Hs' several telephone calls
and emails requesting information, Attorney Stewart
violated SCR 20:1.4(a)(3) and (4).2
1
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
2
SCR 20:1.4(a) provides a lawyer shall: "(3) keep the
client reasonably informed about the status of the matter." And
(4) promptly comply with reasonable requests by the client for
information . . . ."
4
No. 2016AP380-D
Count Three: Having received a $4,400 advanced fee
from the Hs to complete and file the non-provisional
patent application, and thereafter by failing to do
so, Attorney Stewart violated SCR 20:1.5(a).3
Count Four: Having received an advanced fee payment
in contemplation of completing and filing the non-
provisional patent application, and thereafter failing
to do so, rendering the advanced fee unearned, by
failing to refund the advanced fee and return the
product sample and papers to the Hs, Attorney Stewart
violated SCR 20:1.16(d).4
Count Five: By misrepresenting to the Hs that he had
completed the non-provisional patent application and
sent it to them via email for their review, Attorney
Stewart violated SCR 20:8.4(c).5
Count Six: By failing to provide the OLR with a
written response to the Hs' grievance, Attorney
Stewart violated SCR 22.03(2)6 and (6),7 enforced by
SCR 20:8.4(h).8
3
SCR 20:1.5(a) provides: "A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses."
4
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.
5
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to: . . . engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."
6
SCR 22.03(2) provides:
(continued)
5
No. 2016AP380-D
¶8 The remaining counts of misconduct alleged in the
OLR's complaint arose out of Attorney Stewart's representation
of F.W., who hired Attorney Stewart in May of 2014 to draft and
file a non-provisional patent application for her mechanical
invention and to represent her in the intellectual property
matter. Attorney Stewart and F.W. had a written fee agreement
which required F.W. to pay Attorney Stewart an $8,000 advanced
fee, to be paid in two installments. F.W. made the first
advanced fee payment in the amount of $4,000 on or about May 1,
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
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.
7
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."
8
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)."
6
No. 2016AP380-D
2014, and she made the second fee advanced fee payment in the
amount of $4,000 on or about June 24, 2014.
¶9 Attorney Stewart never drafted the non-provisional
patent application and failed to perform any meaningful work in
F.W.'s intellectual property matter. Attorney Stewart failed to
respond to F.W.'s telephone calls and emails requesting
information, and he did not otherwise keep F.W. informed about
the status of her matter. Attorney Stewart did not refund to
F.W. the $8,000 advanced fee, and he failed to respond to her
request for a refund.
¶10 F.W. filed a grievance with the OLR in August 2014.
The OLR provided Attorney Stewart with written notice of its
formal investigation of the F.W. matter and his duty to
cooperate with the investigation on September 11, 2014.
Attorney Stewart failed to respond to the OLR's request for a
written response. He also failed to respond to an October 13,
2014 follow-up letter sent by both certified and first class
mail, nor did he respond to a letter that was personally served
on him on November 19, 2014. The OLR subsequently filed a
notice of motion and motion requesting an order to show cause as
to why Attorney Stewart's license should not be suspended for
failing to cooperate in the F.W. and the Hs investigations. As
noted above, on February 10, 2015, this court issued an order
granting the OLR's motion and temporarily suspending Attorney
Stewart's law license.
7
No. 2016AP380-D
¶11 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Stewart's representation of
F.W.:
Count Seven: By failing to draft and file the non-
provisional patent application, and by otherwise
failing to act in furtherance of F.W.'s interests,
Attorney Stewart violated SCR 20:1.3.
Count Eight: By failing to keep F.W. reasonably
informed regarding the status of the matter, and by
failing to respond to F.W.'s several telephone calls
and emails requesting information, Attorney Stewart
violated SCR 20:1.4(a)(3) and (4).
Count Nine: Having received an $8,000 advanced fee
from F.W. to draft and file the non-provisional patent
application, and thereafter by failing to do so,
Attorney Stewart violated SCR 20:1.5(a).
Count Ten: Having received an advanced fee payment in
contemplation of drafting and filing the non-
provisional patent application, and thereafter failing
to do so, rendering the advanced fee unearned, by
failing to refund the advanced fee, Attorney Stewart
violated SCR 20:1.16(d).
Count Eleven: By failing to provide the OLR with a
written response to F.W.'s grievance, Attorney Stewart
violated SCR 22.03(2) and (6), enforced by SCR
20:8.4(h).
¶12 On January 27, 2017, the OLR and Attorney Stewart
entered into a stipulation whereby Attorney Stewart admitted the
facts and all counts of misconduct alleged in the OLR complaint
and agreed to the level of discipline sought by the OLR
director, namely a nine-month suspension of his license to
practice law in Wisconsin. Attorney Stewart represented that he
fully understands the misconduct allegations, fully understands
the ramifications should this court impose the stipulated level
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No. 2016AP380-D
of discipline, fully understands his right to contest the
matter, fully understands his right to consult with and obtain
counsel, and states that his entry into the stipulation is made
knowingly and voluntarily.
¶13 The referee issued his report and recommendation on
January 25, 2017. Based upon the parties' stipulation, the
referee found that the OLR met its burden of proof with respect
to all 11 counts of misconduct alleged in the complaint. The
referee concluded that the stipulated period of suspension of
Attorney Stewart's law license was reasonable and appropriate.
The referee also recommended, consistent with the stipulation,
that Attorney Stewart be ordered to reimburse the Fund in the
amount of $4,400 for the funds it paid to the Hs and that he be
required to pay restitution to F.W. in the amount of $8,000.
The referee further recommends that Attorney Stewart pay the
full costs of the proceeding.
¶14 This court will adopt the referee's findings of fact
unless they are clearly erroneous. 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. The
court may impose whatever sanction it sees fit, 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.
¶15 We adopt the referee's findings of fact and
conclusions of law that Attorney Stewart violated the supreme
court rules as alleged in the 11 counts set forth above. We
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No. 2016AP380-D
further agree with the referee that a nine-month suspension of
Attorney Stewart's license to practice law in Wisconsin is an
appropriate level of discipline. Since no two cases are
precisely the same, there is no standard sanction for any
particular misconduct. We note that in In re Disciplinary
Proceedings Against Smelzer, 2015 WI 97, 365 Wis. 2d 109, 870
N.W.2d 830, an attorney's license was suspended for nine months
for seven counts of misconduct, including failing to respond to
a client's request for information; failing to keep a client
reasonably informed about the status of a matter; and failing to
cooperate with an OLR investigation. We find the misconduct at
issue here to be somewhat analogous to the misconduct in
Smelzer, and we find a similar suspension to be appropriate. We
agree with the referee that Attorney Stewart should be required
to reimburse the Fund and pay restitution to F.W., and we deem
it appropriate, as is our usual custom, to impose the full costs
of this disciplinary proceeding on Attorney Stewart.
¶16 IT IS ORDERED that the license of Alan R. Stewart to
practice law in Wisconsin is suspended for a period of nine
months, effective the date of this order.
¶17 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Alan R. Stewart shall reimburse the Wisconsin
Lawyers' Fund for Client Protection in the amount of $4,400 and
shall pay restitution to F.W. in the amount of $8,000.
¶18 IT IS FURTHER ORDERED that within 60 days of the date
of this order Alan R. Stewart shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
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No. 2016AP380-D
¶19 IT IS FURTHER ORDERED that reimbursement to the
Wisconsin Lawyers' Fund for Client Protection and restitution to
F.W. shall be paid before the payment of costs to the Office of
Lawyer Regulation.
¶20 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Alan R. Stewart 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(3).9
¶22 IT IS FURTHER ORDERED that the temporary suspension of
Attorney Stewart's license to practice law in Wisconsin, which
was imposed on February 10, 2015 due to his willful failure to
cooperate with the Office of Lawyer Regulation's investigation
in this matter, is lifted.
9
In addition to obtaining reinstatement from the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Stewart will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.
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No. 2016AP380-D
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