2018 WI 104
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2148-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Jason C. Gonzalez, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Jason C. Gonzalez,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST GONZALEZ
OPINION FILED: November 8, 2018
SUBMITTED ON BRIEFS: August 7, 2018
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Peyton B. Engel, Elizabeth L. Spencer, and Hurley, Burish &
Stanton, S.C., Madison.
For the complainant-respondent, there was a brief filed by
Jonathan E. Hendrix and Office of Lawyer Regulation, Madison.
2018 WI 104
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2148-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Jason C. Gonzalez, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
NOV 8, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Jason C. Gonzalez,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. Attorney Jason C. Gonzalez has appealed
a report filed by Referee James C. Boll, Jr., concluding that
Attorney Gonzalez committed five counts of professional
misconduct and recommending that he be publicly reprimanded. In
his appeal, Attorney Gonzalez challenges three of the counts of
misconduct found by the referee. Specifically, he challenges
the referee's findings of fact with respect to counts five,
seven, and nine of the complaint filed by the Office of Lawyer
No. 2016AP2148-D
Regulation (OLR). He also challenges the referee's conclusion
of law with respect to count five. Attorney Gonzalez argues
that a private, rather than a public, reprimand is an
appropriate sanction. He also asks that the costs of the
proceeding be reduced.
¶2 Upon careful review of this matter, we uphold all of
the referee's findings of fact and conclusions of law and
conclude that a public reprimand is an appropriate sanction for
Attorney Gonzalez's misconduct. In addition, we find it
appropriate to follow our usual custom of imposing the full
costs of this proceeding, which are $9,733.36 as of April 2,
2018, on Attorney Gonzalez. The OLR does not seek restitution
and we do not impose a restitution order.
¶3 Attorney Gonzalez was admitted to practice law in
Wisconsin in 2011 and practices in Madison. He has no prior
disciplinary history.
¶4 On November 3, 2016, the OLR filed a complaint
alleging nine counts of misconduct with respect to two client
proceedings. Attorney Gonzalez filed an answer on December 6,
2016. The referee was appointed that same day.
¶5 Counts one through five of the OLR's complaint arose
out of Attorney Gonzalez's representation of J.C. In March of
2013, J.C. was charged with operating while intoxicated (OWI),
third offense. J.C. hired Attorney Gonzalez to represent him in
April of 2013. J.C. signed a fee agreement, which required him
to pay Attorney Gonzalez $2,500 in advanced fees. J.C. informed
Attorney Gonzalez that he wanted any sentencing to occur after
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No. 2016AP2148-D
September 2013. In May of 2013, J.C. emailed Attorney Gonzalez
and said he wanted to push any conviction past late November
2013.
¶6 In July of 2013, the circuit court set J.C.'s trial
for September 19, 2013. Later that month, J.C. emailed Attorney
Gonzalez several times asking for a status update and
questioning why the court had set a trial date for September.
Attorney Gonzalez did not respond. In late August of 2013, the
circuit court removed the September trial date.
¶7 On September 5, 2013, J.C. emailed Attorney Gonzalez
with a new mailing address. In October of 2013, J.C. emailed
Attorney Gonzalez again to remind him to inform the circuit
court of the address change. Attorney Gonzalez did not inform
the circuit court of the change.
¶8 In late October and early November 2013, J.C. again
asked for status updates from Attorney Gonzalez. Attorney
Gonzalez promised J.C. he would contact him with information,
but he never did.
¶9 On November 12, 2013, J.C. requested Attorney Gonzalez
provide him with documents and information and with answers to
specific questions about the case. Attorney Gonzalez responded
within a few hours, but he did not give J.C. the requested
information. From January through May of 2014, J.C.
occasionally sought updates about the case, but received no
substantive responses.
¶10 On May 15, 2014, J.C. emailed Attorney Gonzalez saying
he did not see any reason to delay the proceeding any longer.
3
No. 2016AP2148-D
On June 3, 2014, J.C. signed an affidavit which Attorney
Gonzalez had prepared to collaterally attack one of the prior
OWI convictions. Attorney Gonzalez filed a motion to
collaterally attack one of the prior convictions on October 13,
2014.
¶11 On October 20, 2014, the circuit court allowed
Attorney Gonzalez to withdraw from representation, upon J.C.'s
request. The circuit court later appointed counsel for J.C.
¶12 On October 22, 2014, J.C. requested a partial refund
from Attorney Gonzalez. Attorney Gonzalez responded that he
would prepare and send J.C. an itemized bill.
¶13 In December of 2014, J.C. pled no contest to and was
convicted of fourth offense OWI after the State discovered an
additional prior offense.
¶14 On July 5, 2015, Attorney Gonzalez provided the OLR
with a closing letter he purportedly sent to J.C. on October 30,
2014. The letter used a pre-September 2013 address for J.C.
Attorney Gonzalez never sent J.C. an itemized bill, accounting
of fees, or information on how to dispute the fee after the
representation ended.
¶15 In July 2015, Attorney Gonzalez told the OLR that J.C.
had not requested a refund or contacted him to indicate that he
believed Attorney Gonzalez had not earned the entire advanced
fee paid.
¶16 In addition to the OWI matter, the OLR's complaint
detailed an additional matter involving J.C. While the OWI
charge was pending, in November 2013, the City of Horicon issued
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No. 2016AP2148-D
two municipal citations to J.C. regarding his car. The
appearance date to contest the citations was December 18, 2013.
¶17 J.C. notified Attorney Gonzalez about the citations,
but no representation agreement was ever signed concerning the
citations.
¶18 On December 1, 2013, Attorney Gonzalez emailed J.C.
that he had entered not guilty pleas on the City of Horicon
citations. In fact, Attorney Gonzalez had not done so, nor had
he entered an appearance in the City of Horicon cases. On
December 10, 2013, Attorney Gonzalez told J.C. he did not have
to appear at the December 18, 2013, hearing because of the entry
of the not guilty pleas.
¶19 On December 18, 2013, the Horicon Joint Municipal
Court found that J.C. had defaulted on the citations and
assessed fines against him. In late January 2014, Attorney
Gonzalez and J.C. discussed reopening the City of Horicon
citations. Attorney Gonzalez told J.C. he would not pay the $50
fee to reopen the citations, and J.C. subsequently paid the fee
to reopen the matters.
¶20 On February 18, 2014, Attorney Gonzalez wrote to the
municipal court saying he represented J.C. in the reopened
matters and at that time he also entered not guilty pleas on
J.C.'s behalf. In May 2014, the Horicon municipal court found
J.C. guilty on both violations. In July 2015, Attorney Gonzalez
wrote to the OLR saying he did not represent J.C. in connection
with the City of Horicon citations, but had done him a favor by
"assisting" him.
5
No. 2016AP2148-D
¶21 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Gonzalez's representation of
J.C.:
Count One: By failing to diligently pursue resolution
of the operating while intoxicated charge against
J.C., Attorney Gonzalez violated SCR 20:1.3.1
Count Two: By failing to promptly respond to J.C.'s
requests for information throughout the
representation, Attorney Gonzalez violated
SCR 20:1.4(a)(4).2
Count Three: By failing to provide J.C. a written
final accounting and the notices regarding how to
dispute the fee, Attorney Gonzalez violated former
SCR 20:1.15(b)(4m)b.3
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)(4) provides: "A lawyer shall promptly
comply with reasonable requests by the client for information."
3
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.
Former SCR 20:1.15(b)(4m)b. provided:
Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:
1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;
2. notice that, if the client disputes the
amount of the fee and wants that dispute to be
(continued)
6
No. 2016AP2148-D
Count Four: By failing to enter not guilty pleas to
J.C.'s municipal citations, Attorney Gonzalez violated
SCR 20:1.3.
Count Five: By misrepresenting to the OLR that he had
sent J.C. a letter dated October 30, 2014, accounting
for his fee and providing the notices required under
former SCR 20:1.15(b)(4m), and that he did not
represent J.C. on J.C.'s municipal citations, Attorney
Gonzalez in each instance violated SCR 22.03(6),4
enforced via SCR 20:8.4(h).5
¶22 The remaining four counts of misconduct alleged in the
OLR's complaint arose out of Attorney Gonzalez's representation
of D.J. In January 2013, D.J. was charged with three counts of
sexual assault of a child. D.J. hired Attorney Gonzalez to
represent him in February 2013. In March 2013, D.J. was charged
with four felonies, including three for child enticement. At
submitted to binding arbitration, the client must
provide written notice of the dispute to the lawyer
within 30 days of the mailing of the accounting; and
3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.
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)."
7
No. 2016AP2148-D
least one of the child enticement counts was for an attempt.
Attorney Gonzalez agreed to represent D.J. in the child
enticement case.
¶23 The OLR's complaint alleged that with respect to the
child enticement case, Attorney Gonzalez did not perform legal
research on whether D.J.'s actions constituted an "attempt."
¶24 On May 9, 2014, D.J. pled no contest to one count of
attempted child enticement and one count of exposing a child to
harmful materials in the child enticement case. The State
dismissed the charges in the sexual assault case. In July of
2014, D.J. was sentenced to six years in prison, followed by six
years of extended supervision.
¶25 In August 2014, Attorney Gonzalez filed a Notice of
Intent to Pursue Postconviction Relief on behalf of D.J. In
November 2014, the state public defender appointed Attorney Cole
Ruby to represent D.J. in the postconviction matter. In October
2015, Attorney Ruby moved the court to vacate D.J.'s conviction
and withdraw his guilty plea. One of Attorney Ruby's arguments
was that Attorney Gonzalez had been ineffective because the
attempted child enticement charges lacked a factual basis and
could have been dismissed.
¶26 On January 12, 2016, Attorney Gonzalez testified at a
hearing on the postconviction motion that he had not done any
case law research on the meaning of "attempt." In April of
2016, the circuit court granted D.J.'s motion to withdraw his
plea, citing as the basis Attorney Gonzalez's failure to
understand and explain "attempt" to D.J. In May 2016, the
8
No. 2016AP2148-D
circuit court vacated D.J.'s conviction and reopened both the
sexual assault case and the child enticement case.
¶27 In 2013, Attorney Gonzalez also agreed to represent
D.J. in an ongoing paternity and child support matter. Attorney
Alicia Nall represented the petitioner.
¶28 In January 2015, the circuit court held a hearing on
placement and granted D.J. telephone contact with his daughter.
Attorney Gonzalez was ordered to prepare a written order but
failed to do so.
¶29 On January 22, 2015, Attorney Gonzalez and D.J.
discussed D.J.'s ability to telephone his daughter. Attorney
Gonzalez told D.J. he would contact Attorney Nall.
¶30 In February 2015, D.J. made numerous attempts to
contact Attorney Gonzalez about having telephone contact with
his daughter, without success. In March 2015, D.J. wrote to the
circuit court requesting a hearing about telephone contact with
his daughter.
¶31 In March 2015, the circuit court contacted Attorney
Nall about the order which Attorney Gonzalez was supposed to
have prepared. Attorney Nall drafted an order and submitted it
to the court. In May 2015, Attorney Nall moved the circuit
court for attorney's fees and sanctions against Attorney
Gonzalez for his failure to draft the order.
¶32 On May 11, 2015, D.J. wrote to Attorney Gonzalez about
his lack of communication and inquired about setting up the
telephone calls with his daughter.
9
No. 2016AP2148-D
¶33 D.J. filed a grievance against Attorney Gonzalez in
March 2015. By letter dated May 19, 2015, the OLR notified
Attorney Gonzalez that his written response to the grievance was
required. Attorney Gonzalez provided his written response to
the OLR on July 5, 2015. Attorney Gonzalez said D.J. had not
attempted to contact him since he was incarcerated in 2014 and
that it was up to D.J., not Attorney Gonzalez, to arrange
telephone contact between D.J. and his daughter.
¶34 Attorney Gonzalez did not disclose to the OLR his
failure to prepare and submit the written order effectuating the
ruling made in January 2015 that D.J. be allowed telephone
contact with his daughter. Attorney Gonzalez did not disclose
to the OLR Attorney Nall's motion for sanctions based upon
Attorney Gonzalez's failure to prepare the order as directed.
¶35 On July 13, 2015, the circuit court ordered Attorney
Gonzalez to pay $100 to Attorney Nall. The circuit court also
granted Attorney Gonzalez's motion to withdraw as D.J.'s
counsel. Attorney Gonzalez subsequently paid the $100 sanction
to Attorney Nall.
¶36 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Gonzalez's representation of
D.J.:
Count Six: By failing to research case law on the
issue of whether D.J.'s actions constituted an
10
No. 2016AP2148-D
"attempt" at child enticement, Attorney Gonzalez
violated SCR 20:1.1.6
Count Seven: By failing to prepare the court order to
permit D.J. to have telephone contact with his
daughter, Attorney Gonzalez violated SCR 20:1.3.
Count Eight: By failing to respond to D.J.'s
inquiries regarding establishing telephone contact,
Attorney Gonzalez violated SCR 20:1.4(a)(4).
Count Nine: By misrepresenting to the OLR that D.J.
had not contacted him about the paternity matter and
by failing to disclose to the OLR that he was
responsible for preparing the court order to
facilitate D.J.'s phone visits with D.J.'s daughter,
Attorney Gonzalez in each instance violated
SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶37 The parties filed a stipulation of facts on August 29,
2017. A hearing was held before the referee on August 31, 2017.
The referee issued his report and recommendation on November 6,
2017. The referee found that the OLR had met its burden of
proof on counts two, four, five, seven, and nine of the
complaint, but had not met its burden of proof on counts one,
three, six, and eight.
¶38 With respect to count two, the referee said based on
the long spans of Attorney Gonzalez having no communication with
J.C. and his failure to respond to J.C.'s requests in a
substantive way, the OLR demonstrated by clear and convincing
evidence that Attorney Gonzalez violated SCR 20:1.4(a)(4). With
respect to count four, the referee said that Attorney Gonzalez
6
SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
11
No. 2016AP2148-D
admitted that he lied to J.C. when he said he had filed the
pleas to the City of Horicon citations and when he told J.C. he
did not have to appear on the hearing date because not guilty
pleas had been entered.
¶39 The referee said Attorney Gonzalez did nothing to
defend the citations after the matter was reopened, and J.C. was
found guilty of the two citations. The referee also said
Attorney Gonzalez's testimony at the disciplinary hearing that
he would not apologize to J.C. for lying to him was a troubling
indication of a lack of remorse. The referee found by clear and
convincing evidence that by failing to enter not guilty pleas to
J.C.'s municipal citations, Attorney Gonzalez violated
SCR 20:1.3.
¶40 With respect to count five, the referee noted that
J.C. was sometimes without a phone and at times was not
accessible during regular hours. In addition, J.C. changed his
address several times during Attorney Gonzalez's representation.
The referee found that Attorney Gonzalez did not misrepresent to
the OLR that he sent an October 30, 2014 closing letter, and the
referee termed this an administrative error that occurs in all
businesses.
¶41 The referee said there was nothing in the record to
indicate that when Attorney Gonzalez represented to the OLR that
he had sent the letter he was not being truthful. The referee
found, however, that Attorney Gonzalez did misrepresent to the
OLR that he was "assisting" as opposed to representing J.C.
regarding the City of Horicon citations, and the referee said
12
No. 2016AP2148-D
the facts of record demonstrated that Attorney Gonzalez was
serving the function of representing J.C., not merely
"assisting" him. Thus, the referee found by clear and
convincing evidence that, when Attorney Gonzalez represented to
the OLR that he "assisted" J.C. and did not represent him
regarding the citations, Attorney Gonzalez violated
SCR 22.03(6), enforced via SCR 20:8.4(h).
¶42 With respect to count seven, the referee found that
Attorney Gonzalez was working to obtain a facilitator for D.J.
to arrange telephone contact with his daughter. The referee
found that Attorney Gonzalez's explanation that he could not
draft the order pursuant to the circuit court's direction
because he could not find a facilitator was not credible. The
referee noted that Attorney Nall was able to draft the order
without obtaining a facilitator. The referee found that by
failing to prepare the court order to permit D.J. to have
telephone contact with his daughter, Attorney Gonzalez failed to
act with reasonable diligence and promptness, in violation of
SCR 20:1.3.
¶43 Finally, with respect to count nine, the referee said
Attorney Gonzalez admitted that his statement to the OLR that
D.J. had not contacted him since he was incarcerated was untrue.
While Attorney Gonzalez argued this was a misstatement and that
he provided a letter contradicting the statement to the OLR, the
referee said this was not the only misrepresentation contained
in Attorney Gonzalez's response to the OLR regarding his
representation of D.J. in the paternity matter.
13
No. 2016AP2148-D
¶44 The referee said Attorney Gonzalez stated it was up to
D.J. to arrange telephone contact between D.J. and his daughter
when this was not true. The referee also said that Attorney
Gonzalez neglected to notify the OLR of his failure to prepare
and submit the written order effectuating the circuit court's
January 13, 2015 order. Finally, the referee said that Attorney
Gonzalez failed to notify the OLR that Attorney Nall had filed a
motion for sanctions against him for his failure to file the
order and that the motion had been granted. The referee found,
based on these misstatements and omissions, that Attorney
Gonzalez violated SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶45 The referee concluded that a public reprimanded was an
appropriate sanction for Attorney Gonzalez's misconduct. The
referee also recommended that the full costs of the proceeding
should be assessed against Attorney Gonzalez.
¶46 In his appeal, Attorney Gonzalez says he concedes
count 2, i.e. that he failed to promptly respond to J.C.'s
request for information. He also concedes the substance of
count 4 and admits that he failed to enter not guilty pleas for
J.C.'s municipal citations and that he told J.C. he had done so.
However, Attorney Gonzalez takes issue with the referee's
conclusion that Attorney Gonzalez's invocation of the phrase
"excusable neglect" in his motion to reopen the municipal
citations was an untruthful statement to the municipal court.
He also challenges the referee's statement that Attorney
Gonzalez's unwillingness to apologize to J.C. represents a
troubling lack of remorse. He asks the court to take notice of
14
No. 2016AP2148-D
these points insofar as they bear on the referee's findings that
Attorney Gonzalez violated SCR 22.03(6), enforceable via
SCR 20:8.4(h).
¶47 Attorney Gonzalez also argues that the referee's
conclusion of law with respect to count five is without support
in the record. Attorney Gonzalez does not dispute the referee's
conclusion related to his sending a closing letter to J.C. dated
October 30, 2014. He does dispute the referee's finding that he
misrepresented to the OLR that he was "assisting" as opposed to
"representing" J.C. with respect to the City of Horicon
citations. Attorney Gonzalez continues to argue that his
involvement with the citations was a favor to J.C., and he says
neither party viewed the relationship as an attorney/client
relationship. Attorney Gonzalez asks this court to overturn the
referee's conclusion that Attorney Gonzalez violated
SCR 22.03(6), enforced via SCR 20:8.4(h) when he stated he did
not represent J.C. regarding the City of Horicon citations.
¶48 Attorney Gonzalez also argues that the referee's
findings of fact with respect to count seven are clearly
erroneous because they relied on evidence not in the record. He
says that SCR 20:1.3 requires that an attorney "shall act with
reasonable diligence and promptness in representing a client."
He says the record reflects that D.J. did not want Attorney
Gonzalez's representation. He says pursuant to a request by
D.J., Attorney Gonzalez filed a motion to withdraw as D.J.'s
counsel. The motion was granted but the circuit court
subsequently reappointed Attorney Gonzalez as counsel to avoid a
15
No. 2016AP2148-D
delay. Once D.J. entered a guilty plea and was sentenced,
Attorney Gonzalez was replaced by Attorney Cole Ruby. Attorney
Gonzalez argues that once his involvement with D.J.'s criminal
matters ended, so did the need for his involvement in the
paternity action.
¶49 Attorney Gonzalez says he has always acknowledged that
he failed to prepare a court order regarding D.J.'s telephone
contact with his daughter. He argues that under the
circumstances he believed it was impossible to complete the task
as assigned since he was unable to find a person acceptable to
the child's mother who was willing to serve as a chaperone for
calls between D.J. and his daughter. Attorney Gonzalez says he
has conceded he could have taken some action, but he argues
anything he could have done would not have fulfilled the court's
order.
¶50 Attorney Gonzalez notes the referee found the
explanation that he could not find a facilitator to be "not
credible" since Attorney Nall was able to draft the order
without obtaining a facilitator. Attorney Gonzalez argues the
referee's finding in this regard is partially made on facts not
in the record since neither party offered either the order
drafted by Attorney Nall or any testimony about its contents
into evidence. Attorney Gonzalez argues that because the
referee's conclusion regarding count seven assumes facts not in
evidence, this court should overturn the referee's conclusion of
law with respect to count seven.
16
No. 2016AP2148-D
¶51 Finally, Attorney Gonzalez argues that the referee's
findings of fact with respect to count nine are clearly
erroneous. He concedes he made misstatements, but he argues
they were never intended to mislead the OLR and that he
corrected them and complied with any follow up investigation.
He argues his mistakes in disclosing information, while
unfortunate, were not an attempt to hinder or deceive the OLR.
¶52 Attorney Gonzalez acknowledges that aspects of the
record reflect poorly on him, but he says that to the extent he
is to be disciplined, the discipline should be on the basis of
legally and factually correct determinations and should be
proportional to the degree of misconduct actually proved. He
says given his "otherwise untroubled history" the sanction
"should be relaxed." In his reply brief, Attorney Gonzalez
suggests that a private reprimand would be an appropriate
sanction.
¶53 The OLR argues that the record supports the referee's
findings of fact with respect to all of the counts on which the
referee found the OLR met its burden of proof. With respect to
count four, the OLR says the record supports the referee's
factual finding that Attorney Gonzalez indicated to the Horicon
municipal court that the reason for the default on the citations
was excusable neglect when that was not true. The OLR says the
referee's finding of fact in this regard is not clearly
erroneous, and it is reasonable for the referee to infer that
Attorney Gonzalez was being evasive during his testimony at the
disciplinary hearing when he said, "I don't reference whose
17
No. 2016AP2148-D
neglect it was or whether it was excusable." The OLR also says
the referee's finding that Attorney Gonzalez is not remorseful
with respect to his handling of J.C.'s cases is clearly
supported by the record.
¶54 The OLR goes on to argue that the referee's findings
of fact and conclusions of law with respect to counts five,
seven, and nine are all supported by the record. The OLR says a
public reprimand is an appropriate sanction. It also asserts
that the full costs of the proceeding should be assessed against
Attorney Gonzalez. The OLR says although the referee found that
the OLR did not meet its burden of proof on four of the nine
counts alleged in the complaint, the referee did not find that
any of the counts were improperly brought, and the referee was
troubled by Attorney Gonzalez's conduct in regard to some of the
unproven counts. The OLR's position is that all of the
litigation costs of the proceeding are reasonable and were
necessarily incurred.
¶55 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
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶56 After careful review of the matter, we conclude there
has been no showing that any of the referee's findings of fact
are clearly erroneous. Accordingly, we adopt them. We further
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No. 2016AP2148-D
agree with the referee's conclusions of law that Attorney
Gonzalez violated the supreme court rules set forth above.
¶57 With respect to the appropriate level of discipline,
we also agree with the referee that a public reprimand is an
appropriate sanction. Although Attorney Gonzalez has no
disciplinary history, and even though the referee found that the
OLR did not meet its burden of proof on all counts alleged in
the complaint, the counts that were proven are serious enough to
warrant public discipline. We find the misconduct at issue here
somewhat analogous to the Public Reprimand of Sarah Clemment,
No. 2011-6 (electronic copy available at https://
compendium.wicourts.gov/app/raw/002365.html), in which an
attorney was publicly reprimanded for giving a client an
incorrect date for a removal hearing, making a misrepresentation
in a motion to reopen an order denying an asylum petition and
ordering the client's deportation, failing to follow statutory
requirements in pursuing an appeal, and lying to the client.
¶58 Finally, we find it appropriate to follow our usual
practice of imposing the full costs of the disciplinary
proceeding on Attorney Gonzalez. The OLR does not seek
restitution, and we do not impose any.
¶59 IT IS ORDERED that Jason C. Gonzalez is publicly
reprimanded.
¶60 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Jason C. Gonzalez pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $9,733.36.
19
No. 2016AP2148-D
1