2018 WI 97
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2473-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Ryan P. Thompson, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Ryan P. Thompson,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST THOMPSON
OPINION FILED: October 16, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 97
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2473-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Ryan P. Thompson, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
OCT 16, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Ryan P. Thompson,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report and recommendation
of Referee James W. Mohr, Jr., concluding that Attorney Ryan P.
Thompson committed 16 counts of professional misconduct and
recommending the court suspend his law license for 15 months,
order him to pay restitution to one client, A.K., and impose the
costs of this proceeding on him.
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law and agree that
No. 2017AP2473-D
a 15-month suspension is an appropriate sanction for Attorney
Thompson's misconduct. We further agree that Attorney Thompson
should pay restitution to A.K. in the amount of $1,000. We also
find it appropriate to impose the full costs of this proceeding
on Attorney Thompson, which are $7,370.73 as of August 24, 2018.
¶3 Attorney Thompson was admitted to practice law in
Wisconsin in 2006. He has not previously been professionally
disciplined but his law license was suspended on May 6, 2016,
for willful failure to cooperate with an Office of Lawyer
Regulation (OLR) investigation into the misconduct giving rise
to this matter. It remains suspended.
¶4 On December 20, 2017, the OLR filed a disciplinary
complaint alleging 16 counts of misconduct. Attorney Thompson
filed an answer in which he admitted many of the factual
allegations. Referee Mohr conducted a hearing on July 10, 2018.
Attorney Thompson appeared, but elected not to attend the
hearing. Before the hearing commenced, however, Attorney
Thompson and the OLR advised the referee that they would
stipulate to the discipline recommended in the OLR complaint,
except for requested restitution for C.W., which Attorney
Thompson had paid. The parties stipulated that the restitution
claim on behalf of A.K. could abide by the proof in the record.
The parties additionally contemplated that restitution could be
made as a condition of reinstatement. The OLR called two
witnesses. The parties waived the opportunity for post-hearing
briefing and the referee issued his report on August 6, 2018.
2
No. 2017AP2473-D
¶5 No appeal has been filed so we consider this matter
under SCR 22.17(2).1 The facts set forth in this decision are
based on the referee's factual findings which have not been
shown to be clearly erroneous in any respect. The findings
derive, in turn, from the OLR's complaint, Attorney Thompson's
answer, the facts to which the parties stipulated before the
evidentiary hearing, and evidence from the hearing itself.
Matter of A.K. (Counts 1 & 2)
¶6 In 2014, A.K. retained Attorney Thompson and paid him
a $1,000 retainer. Shortly thereafter, she elected not to
pursue her legal claim. Since January 2015, A.K. has repeatedly
asked Attorney Thompson to refund the unearned portion of her
advanced fee. Attorney Thompson failed to provide A.K. with an
invoice, a written notice of intent to remove her funds from
trust, an accounting, to return any unearned portion of her
advanced fees, or to provide an explanation as to why he did not
owe her a refund.
¶7 In September 2015, A.K. filed a grievance against
Attorney Thompson with the OLR. Attorney Thompson failed to
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.
3
No. 2017AP2473-D
respond and, ultimately, on May 6, 2016, this court issued an
order suspending Attorney Thompson's license to practice law due
to his willful failure to cooperate with the OLR's
investigation.
¶8 The complaint alleged and the referee concluded that,
based on Attorney Thompson's own admission, by failing to refund
the unearned portion of A.K.'s fees or, in the alternative, to
timely explain to A.K. why she was not due a refund, Attorney
Thompson violated SCR 20:1.16(d)2 (Count 1).
¶9 The complaint alleged and the referee concluded that,
by failing to file a written response to OLR's November 17, 2015
letter, Attorney Thompson willfully violated SCRs 22.03(2)3 and
(6),4 enforced via SCR 20:8.4(h)5 (Count 2).
2
SCR 20:l.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.
3
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
(continued)
4
No. 2017AP2473-D
Matter of C.W. (Counts 3-8)
¶10 In November 2014, C.W. hired Attorney Thompson to
represent her in an employment matter. She signed a legal
services agreement and paid Attorney Thompson a $2,500 advance
fee. Attorney Thompson told C.W. he would file a claim alleging
a violation of the Wisconsin Family Medical Leave Act (FMLA) and
a disability discrimination claim on her behalf.
¶11 On December 12, 2014, Attorney Thompson duly filed
C.W.'s state FMLA complaint with the Wisconsin Department of
Workforce and Development. On February 18, 2015, the complaint
was denied. Attorney Thompson did not appeal and, in March
2015, the case was closed.
¶12 After her state FMLA claim was denied, Attorney
Thompson told C.W. that he would file a federal disability
discrimination and federal FMLA claim on her behalf. He failed
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.
4
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."
5
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. 2017AP2473-D
to file any other claims on C.W.'s behalf within the statutory
period allowed to pursue those claims and he did not inform C.W.
he would not file any additional claims on her behalf.
¶13 Subsequently, C.W. made numerous telephone calls to
Attorney Thompson and sent him emails and text messages
requesting information regarding the status of her case.
Attorney Thompson failed to respond.
¶14 On May 6, 2016, this court suspended Attorney
Thompson's law license based on his failure to cooperate with
the A.K. investigation. Attorney Thompson did not advise C.W.
of his suspension.
¶15 On July 22, 2016, C.W. terminated Attorney Thompson's
representation of her and requested a copy of her file, an
accounting, and a refund of unearned fees. Attorney Thompson
failed to respond.
¶16 C.W. hired another attorney who contacted Attorney
Thompson on September 7, 2016, requesting a copy of C.W.'s file
and a refund of her advanced fee. Attorney Thompson failed to
respond. C.W. eventually filed a grievance with the OLR.
Attorney Thompson failed to respond to the OLR inquiries as
well.
¶17 At some point thereafter, Attorney Thompson apparently
provided C.W. with a refund. The parties agree that no
restitution is warranted in this matter.
¶18 The complaint alleged and the record supports the
conclusion that, after dismissal of C.W.'s Wisconsin FMLA claim,
6
No. 2017AP2473-D
by failing to file any other claims on C.W.'s behalf, Attorney
Thompson violated SCR 20:1.3 (Count 3).6
¶19 The complaint alleged and the referee concluded that
by failing to communicate with C.W. about the status of her
claims, and failing to respond to C.W.'s reasonable requests for
information, Attorney Thompson violated SCR 20:1.4(a)(3)7 and
(4)8 (Count 4).
¶20 The complaint alleged and the referee concluded that
by failing to provide C.W. with a written accounting following
her request for one, Attorney Thompson violated former
SCR 20:l.15(d)(2) and current SCR 20:l.15(e)(2)9 (Count 5).
6
It appears the referee inadvertently failed to formally
conclude, as a matter of law, that Attorney Thompson violated
SCR 20:1.3 (Count 3), see Report at 8. However, the referee's
narrative and undisputed factual findings (that Attorney
Thompson failed to file an appeal from C.W.'s state FMLA matter
and did not file any other claims on C.W.'s behalf) support the
conclusion. We independently conclude that Attorney Thompson
committed the misconduct alleged in Count 3 of the OLR
complaint, and note than even if this count were to be
dismissed, it would not alter our analysis or the discipline we
impose today.
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
7
SCR 20:1.4(a)(3) provides: "A lawyer shall keep the
client reasonably informed about the status of the matter."
8
SCR 20:l.4(a)(4) provides: "A lawyer shall promptly comply
with reasonable requests by the client for information."
9
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).
(continued)
7
No. 2017AP2473-D
¶21 The complaint alleged and the referee concluded that
by failing to refund the unearned portion of C.W.'s fee or,
alternatively, to timely explain why she was not due a refund;
by failing to provide C.W. or her counsel with the contents of
her file; and by failing to notify C.W. that he was closing his
private practice, Attorney Thompson in each instance violated
SCR 20:l.16(d) (Count 6).
¶22 The complaint alleged and the referee concluded that
by failing to notify C.W. of the May 6, 2016 suspension of his
license to practice law and that she should seek legal advice
from another attorney, Attorney Thompson violated
SCR 22.26(l)(a) and (b),10 enforced via SCR 20:8.4(f)11 (Count 7).
Former SCR 20:1.15(d)(2) was renumbered as
SCR 20:1.15(e)(2). The text of the rule was not changed and
provides: "Upon final distribution of any trust property or
upon request by the client or a 3rd party having an ownership
interest in the property, the lawyer shall promptly render a
full written accounting regarding the property."
10
SCR 22.26(1) provides:
On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
8
No. 2017AP2473-D
¶23 The complaint alleged and the referee concluded that
by failing to file a written response to the OLR's November 23,
2016 letter, Attorney Thompson willfully violated SCR 22.03(2)
and (6), enforced via SCR 20:8.4(h) (Count 8).
Matter of L.R. (Counts 9-11)
¶24 In June 2015 L.R. hired Attorney Thompson to defend
him in a civil matter. L.R. signed a retainer agreement and
paid Attorney Thompson a $2,500 advance fee. On May 6, 2016,
this court suspended Attorney Thompson's law license so Attorney
Thompson was unable to proceed with L.R.'s matter.
¶25 Between June 3, 2016 and October 31, 2016, L.R. spoke
with and wrote Attorney Thompson several times requesting an
accounting and refund of the unearned portion of his $2,500
advance fee. Attorney Thompson failed to provide L.R. with an
invoice, an accounting, or refund of any unearned fees.
¶26 On November 15, 2016, L.R. filed a grievance with the
OLR seeking a refund of at least $1,750. In an email dated
December 14, 2016, Attorney Thompson acknowledged to the OLR
that he owed L.R. both an accounting and a refund. In an email
to L.R. dated February 23, 2017, Attorney Thompson stated he
owed L.R. a refund of $1,000 but failed to provide L.R. with an
invoice or a refund.
11
SCR 20:8.4(f) provides: "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
9
No. 2017AP2473-D
¶27 On May 17, 2017, L.R. filed a request for arbitration
of his fee dispute with the State Bar of Wisconsin. On July 21,
2017, pursuant to a mediation agreement, L.R. received a $1,000
refund from Attorney Thompson. Attorney Thompson never provided
L.R. with a written invoice, a billing statement, or an
accounting.
¶28 The complaint alleged and the referee concluded that,
by failing to provide L.R. with a written accounting upon his
request, Attorney Thompson violated former SCR 20:l.15(d)(2) and
current SCR 20:l.15(e)(2) (Count 9).
¶29 The complaint alleged and the referee concluded that,
by failing, upon termination of the representation, to properly
refund the unearned portion of L.R.'s fees or, in the
alternative, to timely explain why he was not due a refund,
Attorney Thompson violated SCR 20:l.16(d) (Count 10).
¶30 The complaint alleged and the referee concluded that,
by willfully failing to file a written response to the OLR's
December 23, 2016 letter, Attorney Thompson violated
SCR 22.03(2) and (6), enforced via SCR 20:8.4(h) (Count 11).
Practicing after Suspension (Counts 12-16)
¶31 When Attorney Thompson was suspended by this court on
May 6, 2016, he was employed as an in-house attorney for
Heartland Business Systems LLC (Heartland). He continued to
work for them after the suspension, holding himself out - both
to Heartland and to others - as an attorney licensed to practice
law in Wisconsin.
10
No. 2017AP2473-D
¶32 Attorney Thompson later admitted to the OLR that he
had been practicing law between May 2016 and at least November
2016 and retained the title of General Counsel. Attorney
Thompson made numerous misrepresentations to the OLR when
discussing his suspension, including:
That he told the President and Vice President of
Heartland's parent company that his license had been
suspended;
That when he informed Heartland of his suspension,
they restricted his signing authority and caused
Heartland to begin looking for another attorney;
That the Vice President took over the handling of all
contract matters until another attorney was hired;
That the Vice President began to supervise a legal
assistant for all law-related work;
That Attorney Thompson did not supervise the new
attorney's legal work;
That after Attorney Thompson informed Heartland of his
suspension, he stopped practicing law on behalf of
Heartland; and
That Attorney Thompson changed his title from General
Counsel to Chief Operating Officer, Compliance Leader
and Privacy Officer.
¶33 The referee found that, in fact, Heartland had no
knowledge of Attorney Thompson's suspension until April 27, 2017
and during that time, he was still providing what the company
would consider legal services and legal advice. The referee
11
No. 2017AP2473-D
further found that had Heartland known of his May 2016
suspension, Attorney Thompson would have been terminated.12
¶34 The complaint alleged and the referee concluded that
by practicing law in Wisconsin at a time when his license to
practice law was suspended, Attorney Thompson violated SCRs
22.26(2)13 and 23.02(1),14 enforced via SCR 20:8.4(f) (Count 12).
¶35 The complaint alleged and the referee concluded that,
by using the title General Counsel and otherwise holding himself
out as a licensed attorney while employed in Wisconsin at a time
when his license to practice law in Wisconsin was suspended,
12
He was eventually terminated on August 7, 2017, in part
because he lied to the company about his license suspension.
13
SCR 22.26(2) provides:
An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity
customarily done by law students, law clerks, or other
paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.
14
SCR 23.02(1) provides:
A person who is duly licensed to practice law in
this state by the Wisconsin Supreme Court and who is
an active member of the State Bar of Wisconsin may
practice law in Wisconsin. No person may engage in
the practice of law in Wisconsin, or attempt to do so,
or make a representation that he or she is authorized
to do so, unless the person is currently licensed to
practice law in Wisconsin by the Wisconsin Supreme
court is an active member of the State Bar of
Wisconsin.
12
No. 2017AP2473-D
Attorney Thompson violated SCR 23.02(3),15 enforced via
SCR 20:8.4(f) (Count 13).
¶36 The complaint alleged and the referee concluded that,
by engaging in a dishonest and deceitful course of conduct
related to the status of his license to practice law and his
ability to act as legal counsel for Heartland, which included
material misrepresentations and omissions in his interactions
with Heartland, Attorney Thompson violated SCR 20:8.4(c)16 (Count
14).
¶37 The complaint alleged and the referee concluded that,
by failing to file a written response to the OLR's March 23,
2017 letter until September 18, 2017, Attorney Thompson
willfully violated SCR 22.03(2) and (6), enforced via
SCR 20:8.4(h) (Count 15).
15
SCR 23.02(3) provides:
Except as permitted by SCR 10.03(4), only a
person who is currently licensed to practice law in
Wisconsin and who is an active member of the State Bar
of Wisconsin may represent himself or herself to the
public using the words attorney at law, lawyer,
solicitor, counselor, attorney and counselor, proctor,
law, law office, or other equivalent words in
connection with his or her name or any sign,
advertisement, business card, letterhead, circular,
notice, or other writing, document or design, the
evident purpose of which is to induce others to
believe or understand the person to be authorized to
practice law in this state or otherwise qualified to
provide professional legal services or advice.
16
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
13
No. 2017AP2473-D
¶38 Finally, the complaint alleged and the referee
concluded that, by making misrepresentations to the OLR during
the course of its investigations, Attorney Thompson violated
SCR 22.03(6), enforced via SCR 20:8.4(h) (Count 16).
¶39 With respect to the appropriate discipline, the
parties stipulated before the evidentiary hearing that a one-
year suspension of Attorney Thompson's license to practice law
was appropriate, together with restitution to A.K. as a
condition of any future reinstatement.
¶40 The referee was troubled by Attorney Thompson's
misconduct, particularly his blatant disregard of a supreme
court order and his misrepresentations to the OLR. In reaching
an independent recommendation regarding discipline, the referee
deemed instructive In re Disciplinary Proceedings Against
Rostollan, 2018 WI 38, 381 Wis. 2d 5, 911 N.W.2d 112. Attorney
Rostollan, who had no prior disciplinary history, was suspended
for failure to cooperate in an OLR investigation. He was then
suspended for two years for failing to properly document advance
fees; making misrepresentations to a federal bankruptcy court;
failure to hold fees in trust; failure to cooperate with an OLR
investigation; failure to keep a client properly informed; and
practicing after suspension. The referee acknowledged that
Attorney Rostollan's conduct was more egregious than that of
Attorney Thompson, but noted, correctly, that many of the same
elements are present.
¶41 The referee was also informed by In re Disciplinary
Proceedings Against Ruppelt, 2017 WI 80, 377 Wis. 2d 441, 898
14
No. 2017AP2473-D
N.W.2d 473 where the attorney stipulated to 16 counts of
misconduct and a one-year suspension for failure to hold client
money in trust; dishonest billing practices; dishonesty toward
the OLR in its investigation; failure to properly communicate
with a client; and false statements to a tribunal. There, the
referee opted to recommend a 15-month suspension, which this
court imposed. The referee observed that Attorney Thompson's
case also involved "troublesome conduct toward at least three
(3) clients" and determined that here, a 15-month suspension is
needed.
¶42 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.
¶43 We adopt the referee's findings of fact and
conclusions of law that Attorney Thompson violated the supreme
court rules as set forth above. We further agree with the
referee that a 15-month suspension of Attorney Thompson's
license to practice law in Wisconsin is a more appropriate level
of discipline than the 12-month suspension proposed by the
parties. We agree with the referee that Attorney Thompson
should be required to pay restitution to A.K. We impose this
obligation on Attorney Thompson now. It is not our practice to
15
No. 2017AP2473-D
defer imposition of a restitution award.17 Finally, we deem it
appropriate, as is our usual custom, to impose the full costs of
this disciplinary proceeding on Attorney Thompson.
¶44 IT IS ORDERED that the license of Ryan P. Thompson to
practice law in Wisconsin is suspended for a period of 15
months, effective the date of this order.
¶45 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Ryan P. Thompson shall pay restitution to A.K. in
the amount of $1,000.
¶46 IT IS FURTHER ORDERED that within 60 days of the date
of this order Ryan P. Thompson shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $7,370.73 as
of August 24, 2018.
¶47 IT IS FURTHER ORDERED that restitution shall be paid
before the payment of costs to the Office of Lawyer Regulation.
¶48 IT IS FURTHER ORDERED that, to the extent that he has
not already done so, Ryan P. Thompson 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.
¶49 IT IS FURTHER ORDERED that the temporary suspension of
Ryan P. Thompson's license to practice law in Wisconsin, which
was imposed on May 6, 2016, due to his willful failure to
17
To the extent Attorney Thompson is unable to pay
restitution and costs now, he may contact the OLR and request a
repayment plan.
16
No. 2017AP2473-D
cooperate with the Office of Lawyer Regulation's investigation
is lifted.
¶50 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(3).
17
No. 2017AP2473-D
1