2018 WI 116
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP497-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David W. Schiltz, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
David W. Schiltz,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SCHILTZ
OPINION FILED: December 28, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2018 WI 116
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP497-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David W. Schiltz, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
DEC 28, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
David W. Schiltz,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee Dennis J. Flynn's
recommendation that the court declare Attorney David W. Schiltz
in default and suspend his Wisconsin law license for a period of
18 months for professional misconduct in connection with: (1)
his work on certain client matters; (2) his practice of law
while his law license was suspended for noncompliance with
mandatory continuing legal education (CLE) reporting
requirements; and (3) his failure to disclose his unauthorized
No. 2018AP497-D
practice of law in his reinstatement petition to the Board of
Bar Examiners (BBE). The referee also recommended that this
court order Attorney Schiltz to successfully complete 25 hours
of continuing legal education (CLE) courses as deemed
appropriate by the Office of Lawyer Regulation (OLR). Finally,
the referee recommended that the court order Attorney Schiltz to
make restitution to a former client and to pay the full costs of
this proceeding.
¶2 Because no appeal has been filed, we review the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Schiltz's failure to
answer the complaint filed by the OLR, the OLR is entitled to a
default judgment. However, we disagree with the referee that
Attorney Schiltz's professional misconduct warrants an 18-month
suspension of his Wisconsin law license. We conclude, instead,
that a nine-month suspension is warranted. We order Attorney
Schiltz to make restitution and to successfully complete 25
hours of CLE courses as deemed appropriate by the OLR. We also
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.
2
No. 2018AP497-D
find it appropriate to impose the full costs of this proceeding
on Attorney Schiltz, which are $4,705.70 as of August 27, 2018.
¶3 Attorney Schiltz was admitted to practice law in
Wisconsin in 1987. He had no disciplinary history prior to the
filing of this complaint. His law license has been
administratively suspended for failing to comply with CLE
reporting requirements since May 31, 2016, and for failing to
pay annual bar dues and to provide a required trust account
certification since October 31, 2017.
¶4 On March 15, 2018, the OLR filed the current complaint
against Attorney Schiltz. On June 25, 2018, the OLR filed an
amended complaint. The amended complaint alleges a total of 25
counts of professional misconduct. The following facts are
taken from the OLR's amended complaint, which, as discussed more
fully below, Attorney Schiltz has admitted by default.
Practice During Suspension (Count 1)
¶5 On May 31, 2016, the BBE suspended Attorney Schiltz's
law license due to his failure to comply with CLE reporting
requirements. During his suspension, Attorney Schiltz continued
to meet with clients and appear in court, primarily in estate
matters. The OLR alleged in its amended complaint that this
conduct gave rise to the following violation:
Count 1: By continuing to practice law following the May
31, 2016 suspension of his law license, Attorney Schiltz
3
No. 2018AP497-D
violated SCR 22.26(2),2 and SCR 31.10(1),3 enforceable via
SCR 20:8.4(f).4
Estate of W.E.S. (Counts 2-3)
¶6 W.E.S. died in May 2015. In December 2015, the
probate court appointed C.R. as the personal representative of
W.E.S.'s estate. Because C.R. resided out of state, the court
appointed Attorney Schiltz as the estate's resident agent.
¶7 At the time of his death, W.E.S. owned a 50 percent
interest in certain real property. The property sold in
February 2016, and Attorney Schiltz acted as the title company's
disbursement agent for the sale. Attorney Schiltz received the
$104,766.75 net proceeds of the sale, from which he was to
disburse 50 percent of the sale proceeds ($52,383.38) to
W.E.S.'s estate. He did not do so.
2
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.
3
SCR 31.10(1) provides, in relevant part: "A lawyer shall
not engage in the practice of law in Wisconsin while his or her
state bar membership is suspended under this rule."
4
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."
4
No. 2018AP497-D
¶8 In August 2016, C.R. retained a lawyer to represent
him and the estate in an effort to obtain the sale proceeds from
Attorney Schiltz. The effort was unsuccessful.
¶9 In November 2016, W.E.S.'s estate sued Attorney
Schiltz and the title company to obtain the owed portion of the
real estate sale proceeds. Attorney Schiltz did not appear or
participate in the civil case. In April 2017, the circuit court
issued a default judgment against Attorney Schiltz for
$55,875.59, representing the sale proceeds plus attorney fees.
By early May 2017, Attorney Schiltz had paid $52,383.38 of the
judgment, which represented the sale proceeds.
¶10 Although the BBE suspended Attorney Schiltz's law
license on May 31, 2016, Attorney Schiltz did not inform either
C.R. or the probate court of his suspension.
¶11 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following two
violations:
Count 2: By failing to promptly deliver $52,383.38 to
the estate of W.E.S., Attorney Schiltz violated former
SCR 20:1.15(d)(1) and current SCR 20:1.15(e)(1).5
5
Former SCR 20:1.15(d)(1) was renumbered as
SCR 20:1.15(e)(1) effective July 1, 2016. The text of the rule
was not changed and provides:
Upon receiving funds or other property in which a
client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
contract, the lawyer shall promptly notify the client
or 3rd party in writing. Except as stated in this
(continued)
5
No. 2018AP497-D
Count 3: By failing to notify C.R. that his Wisconsin
law license had been suspended, by failing to advise C.R.
to seek successor counsel, and by failing to provide
written notification of his suspension to the probate
court, Attorney Schiltz violated SCR 22.26(1).6
Estate of J.S. (Counts 4-8)
rule or otherwise permitted by law or by agreement
with the client, the lawyer shall promptly deliver to
the client or 3rd party any funds or other property
that the client or 3rd party is entitled to receive.
6
SCR 22.26(1)(a), (b), and (c) provide:
(1) 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.
(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency 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. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
6
No. 2018AP497-D
¶12 J.S. died in March 2015 with $3,000 in assets. J.S.'s
son, W.R.S., hired Attorney Schiltz to assist him with J.S.'s
affairs.
¶13 In May 2015, Attorney Schiltz drafted and had W.R.S.
sign a transfer by affidavit form, seeking to have J.S.'s $3,000
in assets transferred to W.R.S. Consistent with the form's
instructions, Attorney Schiltz sent a copy of the form to the
Estate and Casualty Recovery Section (ECRS) of the Wisconsin
Department of Health Services.
¶14 In July 2015, and again in February 2016, the ECRS
wrote to Attorney Schiltz, asking him to provide information
that would determine if J.S.'s estate owed any funds to the
ECRS. Attorney Schiltz did not respond.
¶15 Between February and May of 2016, W.R.S. called
Attorney Schiltz 16 times to find out the status of the matter.
Attorney Schiltz did not respond.
¶16 In June 2016, Attorney Schiltz told W.R.S. that he had
taken care of the ECRS claim. This was false.
¶17 Later in June 2016, the ECRS again wrote to Attorney
Schiltz seeking documentation and any funds owed. That same
day, the ECRS contacted W.R.S. directly, who learned that the
matter had not been resolved. W.R.S. provided the requested
information to the State.
¶18 In July 2016, W.R.S. filed a grievance with the OLR
against Attorney Schiltz. Attorney Schiltz did not cooperate
with the ensuing OLR investigation. On February 13, 2017, this
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No. 2018AP497-D
court temporarily suspended Attorney Schiltz's law license for
his non-cooperation.
¶19 Although the BBE suspended Attorney Schiltz's law
license on May 31, 2016, Attorney Schiltz did not inform either
W.R.S. or the probate court of his suspension.
¶20 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following five
violations:
Count 4: By failing to respond to the ECRS's attempts to
contact him regarding its claim against his client, the
estate of J.S., between July 2015 and June 2016, Attorney
Schiltz violated SCR 20:1.3.7
Count 5: By failing to respond to W.R.S.'s telephone
calls between February and May 2016 requesting
information regarding the status of the probate matter,
Attorney Schiltz violated SCR 20:1.4(a)(4).8
Count 6: By falsely informing W.R.S. that he had
resolved the ECRS claim against the estate of J.S. when
he had not done so, Attorney Schiltz violated
SCR 20:8.4(c).9
7
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
8
SCR 20:1.4(a)(4) provides: "A lawyer shall promptly
comply with reasonable requests by the client for information."
9
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
8
No. 2018AP497-D
Count 7: By failing to notify W.R.S. that his license to
practice law had been suspended, by failing to advise
W.R.S. to seek successor counsel, and by failing to
provide written notification of his suspension to the
probate court, Attorney Schiltz violated SCR 22.26(1).
Count 8: By willfully failing to respond timely to the
OLR's written requests for information, Attorney Schiltz
violated SCR 22.03(2)10 and SCR 22.03(6),11 enforceable
via SCR 20:8.4(h).12
10
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
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.
11
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."
12
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)."
9
No. 2018AP497-D
Municipal representation (Counts 9-11)
¶21 At the time of his May 31, 2016 suspension for failure
to comply with CLE reporting requirements, Attorney Schiltz had
been the attorney for a particular town for several years,
including acting as municipal prosecutor. Attorney Schiltz did
not timely inform the town or the town's municipal judge of his
suspension, nor did he timely advise the town to seek successor
counsel.
¶22 From June of 2016 through at least April 30, 2017,
Attorney Schiltz continued to represent the town in municipal
court and other proceedings.
¶23 In May 2017, the OLR received a grievance against
Attorney Schiltz concerning his representation of the town while
his law license was suspended. Attorney Schiltz did not
cooperate with the OLR's subsequent investigation.
¶24 The OLR alleged in its amended complaint that the
course of conduct described above gave rise to the following
three violations:
Count 9: By continuing until April 30, 2017 to actively
represent the town following the May 31, 2016 suspension
of his law license, Attorney Schiltz violated
SCR 22.26(2) and SCR 31.10(1), enforceable via
SCR 20:8.4(f).
Count 10: By failing to notify the town that his license
to practice law had been suspended, by failing to advise
the town to seek successor counsel, and by failing to
provide written notification of his suspension to the
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No. 2018AP497-D
municipal court before which he had matters pending,
Attorney Schiltz violated SCR 22.26(1).
Count 11: By failing to respond timely to the OLR's
written requests for information, Attorney Schiltz
violated SCR 22.03(2) and SCR 22.03(6), enforceable via
SCR 20:8.4(h).
Limited Liability Partnership Representation (Counts 12-15)
¶25 In March 2015, a condominium association filed a civil
suit against a limited liability partnership (LLP) and two
individuals over a dispute regarding management of the
condominium. Soon after being served, the defendants hired
Attorney Schiltz to represent them. Related to the
representation, the LLP gave $3,305 to Attorney Schiltz to be
held in trust.
¶26 In August 2016, Attorney Schiltz filed pleadings in
the case. Over the next few months, Attorney Schiltz appeared
at multiple scheduling conferences in the case. The court
scheduled a trial. Attorney Schiltz informed his clients of
that fact, but told them they did not need to appear.
¶27 In March 2017, Attorney Schiltz failed to appear at a
summary judgment proceeding. Later in March 2017, neither
Attorney Schiltz nor his clients appeared at the scheduled court
trial. As a result of the non-appearance, the circuit court
granted summary judgment against the defendants in the amount of
$66,000.
¶28 Attorney Schiltz's clients made numerous attempts to
contact him both before and after the circuit court's entry of
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No. 2018AP497-D
summary judgment against them. Attorney Schiltz was
unresponsive, and did not otherwise inform his clients about the
status of the case.
¶29 Eventually, Attorney Schiltz contacted his clients and
told them he would move to vacate the judgment. He never did.
¶30 In early May 2017, the defendants hired a different
lawyer to represent them. The successor counsel moved to
overturn the judgment. The circuit court eventually reopened
the case.
¶31 In July 2017, the successor counsel wrote to Attorney
Schiltz, requesting the $3,305 that Attorney Schiltz was to be
holding in trust. Attorney Schiltz did not respond or turn over
the funds.
¶32 During the circuit court proceedings, the circuit
court informed the OLR of Attorney Schiltz's conduct. Attorney
Schiltz did not cooperate with the OLR's subsequent
investigation.
¶33 Although the BBE suspended Attorney Schiltz's law
license on May 31, 2016, Attorney Schiltz did not inform his
clients or the circuit court of the suspension, nor did he
timely advise his clients to seek successor counsel.
¶34 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following four
violations:
Count 12: By failing to notify his clients that his
license to practice law had been suspended, by failing to
advise them to seek successor counsel, and by failing to
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No. 2018AP497-D
provide written notification of his suspension to the
circuit court presiding over the case, Attorney Schiltz
violated SCR 22.26(1).
Count 13: By continuing to actively represent his
clients following the May 31, 2016 suspension of his law
license, Attorney Schiltz violated SCR 22.26(2) and
SCR 31.10(1), enforceable via SCR 20:8.4(f).
Count 14: By failing to return the $3,305 to his former
clients upon their request, Attorney Schiltz violated
former SCR 20:1.15(d)(1) and current SCR 20:1.15(e)(1).
Count 15: By failing to respond timely to the OLR's
written requests for information regarding its
investigation in this matter, Attorney Schiltz violated
SCR 22.03(2) and SCR 22.03(6), enforceable via
SCR 20:8.4(h).
Estate of M.P.M. (Counts 16-18)
¶35 M.P.M. died in 2016. In February 2016, Attorney
Schiltz filed an application for informal probate of M.P.M.'s
estate. The court named R.F. as the estate's personal
representative.
¶36 In March 2016, Attorney Schiltz sent R.F. an invoice
showing that he had paid $66.07 to publish a notice to
creditors. In fact, he had not paid that amount, and had not
published a notice.
¶37 In March 2017, Attorney Schiltz did not appear at a
status conference on the estate. R.F. subsequently hired
replacement counsel.
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No. 2018AP497-D
¶38 During the course of the probate matter, the OLR
received a grievance against Attorney Schiltz regarding his
handling of the matter. Attorney Schiltz did not cooperate with
the OLR's subsequent investigation.
¶39 Although the BBE suspended Attorney Schiltz's law
license on May 31, 2016, Attorney Schiltz did not inform R.F. or
the probate court of his suspension.
¶40 The OLR alleged in its amended complaint that the
course of conduct described above gave rise to the following
three violations:
Count 16: By sending an invoice showing charges
totaling $66.07 for the publication of notice to
creditors, which notice Attorney Schiltz never submitted
for publication, Attorney Schiltz violated SCR 20:8.4(c).
Count 17: By failing to notify R.F. that his license to
practice law had been suspended, by failing to advise
R.F. to seek successor counsel, and by failing to provide
written notification of his suspension to the probate
court, Attorney Schiltz violated SCR 22.26(1).
Count 18: By failing to respond timely to the OLR's
written requests for information regarding its
investigation, Attorney Schiltz violated SCR 22.03(2) and
SCR 22.03(6), enforceable via SCR 20:8.4(h).
Matter of R.W. (Counts 19-22)
¶41 In November of 2014, R.W. purchased a house. As part
of the closing, the seller's attorney held a portion of the sale
proceeds in escrow for repairs.
14
No. 2018AP497-D
¶42 In approximately January 2015, R.W. hired Attorney
Schiltz to represent him in resolving the repair issues. In
April 2016, the seller's attorney filed a declaratory judgment
action concerning the sale and the escrowed funds. Attorney
Schiltz continued to represent R.W.'s interests, but did not
enter an appearance in the declaratory judgment case.
¶43 In August 2016, an involuntary plaintiff in the matter
filed for default judgment against R.W. Attorney Schiltz later
sent an email to the seller's attorney and the involuntary
plaintiff's attorney in which Attorney Schiltz stated that he
represented R.W. He did not inform them that his law license
was suspended.
¶44 The circuit court held a default hearing in the
declaratory judgment case. Neither R.W. nor Attorney Schiltz
appeared. The court granted the default judgment.
¶45 In September 2016, another involuntary plaintiff
sought and received a default judgment against R.W. Neither
R.W. nor Attorney Schiltz appeared for that hearing.
¶46 In November 2016, the court issued a declaratory
judgment and closed the case.
¶47 In August 2017, R.W. filed a grievance with the OLR
against Attorney Schiltz. Attorney Schiltz did not cooperate
with the OLR's subsequent investigation.
¶48 Although the BBE suspended Attorney Schiltz's law
license on May 31, 2016, Attorney Schiltz did not inform R.W. of
his suspension.
15
No. 2018AP497-D
¶49 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following four
violations:
Count 19: By continuing to represent R.W. following the
May 31, 2016 suspension of his law license for failing
to comply with CLE requirements, Attorney Schiltz
violated SCR 22.26(2), and SCR 31.10(1), enforceable via
SCR 20:8.4(f).
Count 20: By failing to notify R.W. that his license to
practice law had been suspended and by failing to advise
R.W. to seek successor counsel, Attorney Schiltz violated
SCR 22.26(1)(a) and (b).
Count 21: By failing to inform the seller's counsel and
the involuntary plaintiff's counsel of his law license
suspension, Attorney Schiltz violated SCR 22.26(1)(c).
Count 22: By willfully failing to respond timely to the
OLR's written requests for information, Attorney Schiltz
violated SCR 22.03(2) and SCR 22.03(6), enforceable via
SCR 20:8.4(h).
Matter of P.S. and K.S.
¶50 In approximately September 2016, P.S. and K.S. hired
Attorney Schiltz to represent them in a proposed land purchase.
Attorney Schiltz did not inform P.S. and K.S. of his May 31,
2016 suspension by the BBE.
¶51 P.S. and K.S. and the property's sellers agreed to
have Attorney Schiltz represent both groups. Attorney Schiltz
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No. 2018AP497-D
advised P.S. and K.S. that he would provide the legal services
required before and during the closing.
¶52 Attorney Schiltz collected fees from the sellers for
the closing, and from P.S. and K.S. to prepare a quit claim
deed. In March 2017, Attorney Schiltz filed a quit claim deed
that listed the wrong lot numbers.
¶53 In October 2017, P.S. and K.S. filed a grievance with
the OLR against Attorney Schiltz. Attorney Schiltz did not
cooperate with the OLR's subsequent investigation.
¶54 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following two
violations:
Count 23: By representing P.S. and K.S. and the sellers
in a real estate transaction following the May 31, 2016
suspension of his law license for failing to comply with
CLE requirements, Attorney Schiltz violated SCR 22.26(2),
and SCR 31.10(1), enforceable via SCR 20:8.4(f).
Count 24: By willfully failing to respond timely to the
OLR's written requests for information regarding this
investigation, Attorney Schiltz violated SCR 22.03(2) and
SCR 22.03(6), enforceable via SCR 20:8.4(h).
Misrepresentation to BBE (Count 25)
¶55 On October 6, 2016, Attorney Schiltz filed a petition
for reinstatement with the BBE. In it, Attorney Schiltz stated,
"I have not practiced law during the time of my suspension."
This statement was false.
17
No. 2018AP497-D
¶56 On October 7, 2016, the BBE wrote to Attorney Schiltz,
informing him that his petition was insufficient in several
respects. Attorney Schiltz did not amend his petition, and the
BBE's suspension remains in effect.
¶57 The OLR alleged in its amended complaint that the
conduct described above gave rise to the following violation:
Count 25: Given that Attorney Schiltz continued to
actively represent clients between the date he was
suspended, May 31, 2016, and October 6, 2016, by filing
on October 6, 2016 a petition for reinstatement with the
BBE that included a false representation, Attorney
Schiltz violated SCR 20:8.4(c).
¶58 In April 2018, the OLR personally served the complaint
and an order to answer on Attorney Schiltz. Attorney Schiltz
failed to file an answer. In June 2018, the OLR served Attorney
Schiltz with an amended complaint via mail to both the address
he had provided to the State Bar and the address at which he had
been personally served with the original complaint.13 Again,
Attorney Schiltz failed to file an answer. Attorney Schiltz
also failed to appear at a July 2018 telephonic scheduling
conference held by the referee, of which the referee had
13
Both mailings were returned by the postal service as
undeliverable.
18
No. 2018AP497-D
attempted to notify Attorney Schiltz by a letter notice sent via
mail and email and by phone.14
¶59 The OLR moved for a default judgment. The referee
issued a report recommending that this court grant the OLR's
motion.15 In so doing, the referee deemed the allegations in the
OLR's complaint to be established.
¶60 In its amended complaint, the OLR sought a six-month
suspension of Attorney Schiltz's law license. In a brief in
support of its default judgment motion, the OLR argued that a
six-month suspension was consistent with In re Disciplinary
Proceedings Against Scanlan, 2006 WI 38, 290 Wis. 2d 30, 712
N.W.2d 877 (six-month suspension for 21 counts of misconduct
including practicing law while suspended, failing to provide
notice to clients and courts concerning the suspension, failing
to provide competent representation, trust account violations,
and failing to timely respond to an OLR investigation; lawyer
14
The referee mailed the letter notice to the address
Attorney Schiltz provided to the State Bar and to the address at
which he had been personally served with the original complaint.
Both mailings were returned by the postal service as
undeliverable. The referee also emailed the letter notice to
the email address Attorney Schiltz had provided to the State
Bar. The email was returned as undeliverable. The referee also
attempted to telephone Attorney Schiltz regarding the scheduling
conference at the phone number Attorney Schiltz had provided to
the State Bar. The calls went unanswered.
15
The referee mailed his report to the address Attorney
Schiltz had provided to the State Bar and to the address at
which he had been personally served with the original complaint.
Both mailings were returned by the postal service as
undeliverable.
19
No. 2018AP497-D
had no previous discipline), and In re Disciplinary Proceedings
Against Baratki, 2017 WI 89, 378 Wis. 2d 1, 902 N.W.2d 250 (six-
month suspension for nine counts of misconduct including
practicing law while suspended, making sexual comments to
client, failing to act with reasonable diligence, and failing to
cooperate with disciplinary investigation; lawyer had been
privately reprimanded twice before).
¶61 The referee recommended a significantly longer
suspension of Attorney Schiltz's Wisconsin law license: 18
months. The referee cited no precedent to support his suggested
tripling of the suspension sought by the OLR, nor did he discuss
the cases cited by the OLR in its brief in support of default
judgment. The referee noted that no mitigating factors existed
to diminish the seriousness of Attorney Schiltz's misconduct,
and that Attorney Schiltz's actions "do not reflect respect for
the rule of law or basic honesty." The referee additionally
recommended that this court require Attorney Schiltz "to
complete 25 hours of CLE credit courses in areas that are
approved in advance by OLR. The courses should include ethics
and trust account matters." Finally, the referee recommended
that this court order Attorney Schiltz to pay the full costs of
this proceeding, as well as $3,305 in restitution to the LLP
referenced earlier.
¶62 Attorney Schiltz did not appeal from the referee's
report and recommendation. Thus, we proceed with our review of
the matter pursuant to SCR 22.17(2). We review a referee's
findings of fact subject to the clearly erroneous standard. See
20
No. 2018AP497-D
In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the appropriate
level of discipline independent 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.
¶63 We agree with the referee that Attorney Schiltz should
be declared in default. Although the OLR effected personal
service of its original complaint and mailed the amended
complaint to both Attorney Schiltz's office address registered
with the State Bar and the address at which he was served with
the original complaint, he failed to appear or present a
defense. Accordingly, we deem it appropriate to declare him in
default. In addition, the referee properly relied on the
allegations of the complaint, which were deemed admitted. See
In re Disciplinary Proceedings Against Coplien, 2010 WI 109,
¶¶10–11, 329 Wis. 2d 311, 788 N.W.2d 376. We therefore accept
the referee's findings of fact based on the allegations of the
amended complaint. We also agree with the referee that those
findings of fact adequately support the legal conclusions of
professional misconduct with respect to all counts of misconduct
alleged in the complaint.
¶64 However, we disagree with the referee's recommendation
that this court should impose an 18-month license suspension.
As noted above, it is ultimately this court's responsibility,
rather than the referee's, to determine the appropriate level of
discipline. See In re Disciplinary Proceedings Against Reitz,
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No. 2018AP497-D
2005 WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d 894. We owe no
deference to the referee's recommended sanctions. See In re
Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶37, 248
Wis. 2d 662, 636 N.W.2d 718. In considering the appropriate
sanction, this court seeks to impress upon the attorney the
seriousness of the misconduct, to deter other attorneys from
engaging in similar misconduct, and to protect the public, the
courts, and the legal system from a repetition of the
misconduct. See, e.g., In re Disciplinary Proceedings Against
Grogan, 2011 WI 7, ¶17, 331 Wis. 2d 341, 795 N.W.2d 745.
¶65 Under the unique circumstances of this case, we
conclude that a nine-month suspension is appropriate. In
imposing this suspension, we agree with the referee's view that
the six-month suspension requested by the OLR in its amended
complaint is insufficient. Although the OLR correctly noted in
briefing to the referee that we imposed a six-month suspension
in Scanlan and Baratki, both of these cases have distinguishing
features. Unlike the present case, where no mitigating factors
appear present, Scanlan featured a respondent-lawyer who was
remorseful and ultimately cooperative with the disciplinary
process, and who suffered significant mental health and personal
problems at the time of his misconduct. Scanlan, 290
Wis. 2d 30, ¶73. Additionally, the present case involves nearly
three times as many misconduct counts as did Baratki (25 counts
here versus nine in Baratki). On the instant facts, then, we
agree with the referee that something more than a six-month
suspension is required.
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No. 2018AP497-D
¶66 But given that Attorney Schiltz has no disciplinary
history, the referee's recommended 18-month suspension seems
high. We find In re Disciplinary Proceedings Against Vance,
2016 WI 89, 372 Wis. 2d 39, 886 N.W.2d 583 instructive. Like
Attorney Schiltz, the respondent-lawyer in Vance had no
disciplinary history. Also like Attorney Schiltz, the
respondent-lawyer in Vance committed a considerable number of
misconduct counts (21 counts, versus Attorney Schiltz's 25
counts). Also like Attorney Schiltz, this misconduct included
failing to inform multiple clients, opposing counsel, and courts
of a license suspension; continuing to practice law after a
license suspension; inattentiveness to client matters; and
failing to cooperate with OLR investigations. We concluded that
a nine-month suspension was "clearly deserved" in Vance, as the
respondent-lawyer's actions showed "a total disregard of his
clients' needs and objectives, as well as of his obligations as
an attorney in this state." Id., ¶38. We hold that the same
length of suspension is appropriate here, for the same core
reasons. See also In re Disciplinary Proceedings Against Marx,
2016 WI 75, 371 Wis. 2d 591, 882 N.W.2d 863 (nine-month
suspension for 22 counts of misconduct including practicing law
while suspended, mismanaging trust account matters, failing to
communicate with a client, and failing to cooperate with an OLR
investigation; lawyer had no disciplinary history).
¶67 We move next to the referee's recommendation that we
require Attorney Schiltz to complete 25 hours of CLE courses as
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No. 2018AP497-D
deemed appropriate by the OLR, to include courses on ethics and
trust account matters. We agree with this recommendation.
¶68 As is our normal practice, we also find it appropriate
to impose the full costs of this disciplinary proceeding, which
are $4,705.70 as of August 27, 2018, on Attorney Schiltz. See
SCR 22.24(1m).
¶69 Finally, turning to the issue of restitution, the OLR
alleged, and the referee agreed, that this court should order
Attorney Schiltz to pay restitution in the amount of $3,305 to
the LLP that had given Attorney Schiltz that sum to be held in
trust. As explained above, Attorney Schiltz failed to return
that sum to the LLP upon its request. Attorney Schiltz had
multiple opportunities to object to this restitution amount
before both the referee and this court. He has not done so.
Thus, we determine that Attorney Schiltz should be ordered to
pay restitution as the OLR requested and the referee
recommended.
¶70 IT IS ORDERED that the license of David W. Schiltz to
practice law in Wisconsin is suspended for a period of nine
months, effective the date of this order.
¶71 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David W. Schiltz shall pay restitution to the
above-referenced LLP in the amount of $3,305.
¶72 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David W. Schiltz shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$4,705.70 as of August 27, 2018.
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¶73 IT IS FURTHER ORDERED that the restitution is to be
completed prior to paying costs to the Office of Lawyer
Regulation.
¶74 IT IS FURTHER ORDERED that, as a condition of his
reinstatement, David W. Schiltz shall successfully complete 25
hours of CLE courses as deemed appropriate by the Office of
Lawyer Regulation, to include courses on ethics and trust
account matters.
¶75 IT IS FURTHER ORDERED that the February 13, 2017,
temporary suspension of David W. Schiltz's license to practice
law in Wisconsin, due to his willful failure to cooperate with
the Office of Lawyer Regulation's investigation in this matter,
is lifted.
¶76 IT IS FURTHER ORDERED that the administrative
suspension of David W. Schiltz's license to practice law in
Wisconsin for failing to comply with CLE reporting requirements,
and for failing to pay annual bar dues and to provide a required
trust account certification, will remain in effect until each
reason for the administrative suspension has been rectified
pursuant to SCR 22.28(1).
¶77 IT IS FURTHER ORDERED that David W. Schiltz 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.
¶78 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(3).
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