2017 WI 106
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1168-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: December 21, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 106
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1168-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,
DEC 21, 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 Referee John B. Murphy's
recommendation that Attorney Alan R. Stewart be declared in
default and that his license to practice law in Wisconsin be
suspended for 60 days for professional misconduct. The referee
also recommended that Attorney Stewart pay the full costs of the
proceeding, which are $805.85 as of October 11, 2017.
¶2 We declare Attorney Stewart to be in default. We
agree with the referee that Attorney Stewart's professional
No. 2017AP1168-D
misconduct warrants a 60-day suspension of his license to
practice law in Wisconsin. We also agree that Attorney Stewart
should pay the full costs of this proceeding.
¶3 Attorney Stewart was admitted to practice law in
Wisconsin in 1992. He was registered as a patent attorney with
the United States Patent and Trademark Office (USPTO) on March
19, 2001.1 He practices in Appleton.
¶4 This court recently imposed a nine-month disciplinary
suspension on Attorney Stewart for two counts of failing to
complete and file a patent application or act in furtherance of
his client's interests in violation of SCR 20:1.3; two counts of
failing to keep his client reasonably informed of the status of
the matter and respond to his client's telephone calls and
emails in violation of SCR 20:l.4(a)(3) and (4); two counts of
receiving an advance fee from his client and failing to complete
and file the patent application in violation of SCR 20:1.5(a);
two counts of failing to refund any unearned advance fee in
violation of SCR 20:1.16(d); one count of misrepresenting to his
client that he completed the patent application in violation of
SCR 20:8.4(c); and two counts of failing to provide the Office
of Lawyer Regulation (OLR) with a written response to the
grievance in violation of SCR 22.03(2) and (6), enforced via
1
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.
2
No. 2017AP1168-D
SCR 20:8.4(h). See In re Disciplinary Proceedings Against
Stewart, 2017 WI 41, 374 Wis. 2d 642, 893 N.W.2d 572.
¶5 In addition, Attorney Stewart's license to practice
law in Wisconsin is also administratively suspended due to his
failure to pay mandatory bar dues, failure to file a trust
account certification, and failure to comply with continuing
legal education requirements.
¶6 On June 16, 2017, the OLR filed this complaint against
Attorney Stewart alleging three counts of misconduct pertaining
to his continuing to practice law before the USPTO.
Specifically, as the complaint alleged, USPTO regulations
require that trademark matters be handled by a registered
attorney, defined as "an individual who is a member in good
standing in the highest court of any state." Attorney Stewart
has been administratively suspended from the practice of law in
Kentucky and Minnesota since at least 2013, for non-payment of
bar dues.
¶7 On February 10, 2015, this court temporarily suspended
Attorney Stewart's license to practice law due to his failure to
cooperate in two separate OLR investigations. The OLR sent
Attorney Stewart notice of that temporary license suspension.
Attorney Stewart filed documents or otherwise took action in
five different trademark matters on March 16, 2015, April 27,
2015, May 18, 2015, and June 6, 2015. On October 2, 2015, the
Office of Enrollment and Discipline (OED) filed a complaint with
the USPTO against Attorney Stewart relating to his continuing
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No. 2017AP1168-D
practice before the USPTO despite not being a member in good
standing in any state bar.
¶8 Attorney Stewart did not respond the OED complaint and
was eventually deemed to be in default; the USPTO issued an
Initial Decision and Order on Default Judgment on December 16,
2015, finding, inter alia, that Attorney Stewart "violated 37
C.F.R. §11.505 by continuing to practice trademark law before
the USPTO despite not being a member in good standing in any
state bar." The USPTO excluded him from practice before the
USPTO.
¶9 On February 10, 2016, the OED advised the OLR of this
matter. On February 25, 2016, the OLR provided Attorney Stewart
with written notice of its formal investigation, requesting a
response from Attorney Stewart. Despite repeated requests,
Attorney Stewart has failed to respond to the OLR's inquiry.
¶10 Accordingly, the OLR's complaint alleged:
Count One: By continuing to practice trademark law
before the USPTO despite not being a member in good
standing in any state bar, Attorney Stewart violated
SCR 20:5.5(a)(1).2
2
SCR 20:5.5(a)(1) provides:
A lawyer shall not practice law in a jurisdiction
where doing so violates the regulation of the legal
profession in that jurisdiction except that a lawyer
admitted to practice in Wisconsin does not violate
this rule by conduct in another jurisdiction that is
permitted in Wisconsin under SCR 20:5.5(c) and (d) for
lawyers not admitted in Wisconsin.
4
No. 2017AP1168-D
Count Two: By representing himself to the USPTO as an
attorney of record in Wisconsin in four separate
trademark applications, despite knowing that he was
suspended from the practice of law, Attorney Stewart
violated SCR 20:8.4(c).3
Count Three: By willfully failing to provide the OLR
with a written response to the OLR's investigation,
Attorney Stewart violated SCR 22.03(2)4 and 22.03(6),5
enforced via SCR 20:8.4(h).6
3
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
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
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(2), SCR 22.03(6),
or SCR 22.04(1)."
5
No. 2017AP1168-D
¶11 The referee was appointed on August 11, 2017. After
Attorney Stewart failed to file an answer to the complaint, the
OLR filed a notice of motion and motion for default judgment.
The referee conducted a scheduling conference by telephone at
which Attorney Stewart appeared pro se and admitted he had not
filed an answer and stated he had no objection to the OLR's
motion for a default judgment. With the referee's permission,
Attorney Stewart filed a brief addressing the issue of
sanctions, asking that any suspension be imposed concurrent with
his present disciplinary suspension.
¶12 The OLR filed a response in which it agreed that
Attorney Stewart's suspension should be imposed concurrent with
his present disciplinary suspension, which is scheduled to
expire on January 26, 2018.
¶13 The referee issued his report and recommendation on
September 22, 2017. The referee did not rule on the OLR's
default motion, per se, but his report explains that Attorney
Stewart stated both during the scheduling conference and, in
writing, in his ensuing brief on sanctions, that he did not
oppose the motion. As such, it is clear from the record that
Attorney Stewart received adequate notice of the default motion.
The facts of record provide a reasonable basis for the referee's
implicit finding that Attorney Stewart should be deemed to have
defaulted.
¶14 The referee found that based on the facts alleged in
the complaint, Attorney Stewart's failure to answer the
complaint, his statements at the scheduling conference and in
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No. 2017AP1168-D
his brief, that the OLR has met its burden of proof with respect
to proving all three counts of misconduct alleged in the
complaint. With respect to the appropriate level of discipline,
the referee observed that continued practice of law after a
suspension is a major violation of the supreme court rules but
acknowledged that Attorney Stewart's explanation provides
support for some leniency. Accordingly, the referee recommended
that Attorney Stewart's license to practice law in Wisconsin be
suspended for 60 days and agreed that it was appropriate to
impose that suspension concurrent with his current suspension.
The referee further recommended that Attorney Stewart be ordered
to pay the entire cost of the disciplinary proceeding.
¶15 Attorney Stewart did not appeal the referee's decision
so we consider this matter pursuant to SCR 22.17(2).7
¶16 A referee's findings of fact are affirmed unless
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
7
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.
7
No. 2017AP1168-D
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. We
adopt the referee's findings of fact and agree with the
referee's conclusions of law that Attorney Stewart violated the
supreme court rules referenced above.
¶17 Although Attorney Stewart was given the opportunity to
file an answer and present a defense to the OLR's complaint, he
failed to do so and advised the referee that he had no objection
to being deemed in default. Accordingly, we declare him to be
in default.
¶18 We agree with the referee that a 60-day suspension of
Attorney Stewart's license to practice law in Wisconsin, imposed
concurrent with his present suspension, is an appropriate
sanction for his misconduct. Neither the parties nor the
referee cited case law in support of the recommended discipline.
However, we find the matter of In re Disciplinary Proceedings
Against Osicka, 2014 WI 34, 353 Wis. 2d 675, 847 N.W.2d 333
instructive in two respects. First, a concurrent suspension is
appropriate. All of the alleged misconduct in this matter
occurred between March and October 2015. The underlying
disciplinary proceeding giving rise to the nine-month suspension
was filed in February 2016 and pertained to misconduct dating
from 2013 and 2014. As such, it appears that all of the
misconduct could have been addressed in a single proceeding,
which would have resulted in a single sanction. It thus appears
that a consecutive suspension would not be a fair or proper
result in these circumstances. See, e.g., Osicka, 2014 WI 34,
¶24 (imposing license suspension concurrent with prior
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No. 2017AP1168-D
suspension where "we see no reason why the allegations in this
complaint could not have been included in the [prior complaint]
either originally or by amending the complaint in that
proceeding.")
¶19 Second, although all disciplinary matters are unique,
we imposed a 60-day suspension on Attorney Osicka for continuing
to practice law while his license was administratively suspended
and for failing to cooperate with the ensuing OLR investigation.
Id. We conclude that a 60-day suspension of Attorney Stewart's
license is appropriate to protect the public, the courts, and
the legal system from repetition of Attorney Stewart's
misconduct. It will impress upon the attorney the seriousness
of his misconduct and will deter other attorneys from committing
similar misconduct. The OLR does not seek restitution and no
restitution is ordered. Finally, we agree with the referee that
Attorney Stewart should bear the full costs of this proceeding.
¶20 IT IS ORDERED that the license of Alan R. Stewart to
practice law in Wisconsin is suspended for a period of 60 days,
effective November 26, 2017, to run concurrent with the license
suspension imposed in In re Disciplinary Proceedings Against
Stewart, 2017 WI 41, 374 Wis. 2d 642, 893 N.W.2d 572.
¶21 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, which are $805.85.
¶22 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Alan R. Stewart shall comply with the
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No. 2017AP1168-D
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
¶23 IT IS FURTHER ORDERED that the administrative
suspension of Alan R. Stewart's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues, failure
to file a trust account certification, and failure to comply
with continuing legal education requirements, will remain in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).
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No. 2017AP1168-D
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