2019 WI 30
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1397-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Diann P. Burton, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Diann P. Burton,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BURTON
OPINION FILED: March 22, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 30
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1397-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Diann P. Burton, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAR 22, 2019
v.
Sheila T. Reiff
Clerk of Supreme Court
Diann P. Burton,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review Referee Kim M. Peterson's
recommendation that the court declare Attorney Diann P. Burton
in default and publicly reprimand her for professional
misconduct in connection with her practice of law while her law
license was suspended, and her improper use of a firm name for
her solo practice. The referee also recommended that Attorney
Burton pay the full costs of this proceeding, which total $533
as of January 15, 2019.
No. 2018AP1397-D
¶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 Burton's failure to
answer the complaint filed by the Office of Lawyer Regulation
(OLR), the OLR is entitled to a default judgment. We also agree
with the referee that Attorney Burton's professional misconduct
warrants a public reprimand. Finally, we agree with the referee
that Attorney Burton should be ordered to pay the full costs of
the proceeding.
¶3 Attorney Burton was admitted to practice law in
Wisconsin in 1997. Her law license is currently subject to
administrative and temporary suspensions. On October 31, 2016,
Attorney Burton's law license was administratively suspended due
to her failure to pay mandatory bar dues and her failure to file
a trust account certification. On May 22, 2018, her law license
was administratively suspended due to her failure to comply with
continuing legal education requirements. On July 10, 2018, her
law license was temporarily suspended due to her failure 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.
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No. 2018AP1397-D
cooperate in an OLR investigation unrelated to the misconduct at
issue in this case.
¶4 On July 26, 2018, the OLR filed the current complaint
against Attorney Burton. The complaint alleges four counts of
professional wrongdoing. The following facts are taken from the
OLR's complaint.
¶5 In August 2014, M.B. and Y.B. hired Attorney Burton to
file a petition for a Chapter 7 bankruptcy and paid her a $1,000
flat fee for her representation. Attorney Burton continued to
provide legal advice to M.B. and Y.B. after her law license was
administratively suspended in October 2016, though she never
filed a bankruptcy petition on their behalf.
¶6 In addition, at the time of her administrative license
suspension in October 2016, Attorney Burton had at least eight
open bankruptcy cases pending in the United States Bankruptcy
Court for the Eastern District of Wisconsin. Attorney Burton
did not notify her clients or the bankruptcy court of the
suspension of her license and continued as counsel of record in
the pending cases while her license was suspended. Legal work
that Burton performed while her law license was suspended
included:
• filing a Chapter 7 bankruptcy petition in February 2017
on behalf of a client, and representing that client
through the bankruptcy discharge granted in May of 2017;
• filing amended Chapter 13 plans;
• filing responses to and stipulations resolving trustees'
motions to dismiss; and
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No. 2018AP1397-D
• filing a petition for voluntary amortization of debts in
February 2017 on behalf of another client in a Wisconsin
circuit court.
¶7 Finally, while operating as a solo practitioner,
Attorney Burton used a law firm name and letterhead that listed
several partners, one of whom had a suspended law license.
¶8 The OLR's complaint alleged the following four counts
of misconduct arising out of the matters described above:
• By practicing law while her license was suspended,
Attorney Burton violated SCR 10.03(6)2 and SCR 22.26(2),3
enforceable via SCR 20:8.4(f)4 (Count 1).
2 SCR 10.03(6) provides:
If the annual dues or assessments of any member
remain unpaid 120 days after the payment is due, the
membership of the member may be suspended in the
manner provided in the bylaws; and no person whose
membership is so suspended for nonpayment of dues or
assessments may practice law during the period of the
suspension.
3 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.
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."
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No. 2018AP1397-D
• By failing to provide proper written notice of the
suspension of her law license to clients and to courts
before which she had pending matters, Attorney Burton
violated SCR 22.26(l),5 enforceable via SCR 20:8.4(f)
(Count 2).
5 SCR 22.26(1) provides:
(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.
(d) Within the first 15 days after the effective
date of suspension or revocation, make all
arrangements for the temporary or permanent closing or
winding up of the attorney's practice. The attorney
may assist in having others take over clients' work in
progress.
(e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:
(continued)
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No. 2018AP1397-D
• By using a law firm name that listed several partners
despite operating as a solo practitioner, Attorney Burton
violated SCR 20:7.5(d)6 (Count 3).
• By using the name of a suspended attorney in her firm
name and letterhead, Attorney Burton violated
SCR 22.27(l),7 enforceable via SCR 20:8.4(f) (Count 4).
¶9 According to the OLR's motion for default, to which
Attorney Burton did not respond, the OLR made multiple attempts
to serve Attorney Burton with the complaint and an order to
answer. Specifically, in August and September 2018, a process
(i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
procedures regarding the closing of the attorney's
practice.
(ii) A list of all jurisdictions, including
state, federal and administrative bodies, before which
the attorney is admitted to practice.
(iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.
(f) Maintain records of the various steps taken
under this rule in order that, in any subsequent
proceeding instituted by or against the attorney,
proof of compliance with the rule and with the
suspension or revocation order is available.
6 SCR 20:7.5(d) provides: "Lawyers may state or imply that
they practice in a partnership or other organization only when
that is the fact."
7 SCR 22.27(1) provides: An attorney may not use in a firm
name, letterhead or other written form the name of an attorney
whose license is suspended or revoked.
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No. 2018AP1397-D
server retained by the OLR tried to personally serve Attorney
Burton with the complaint and order to answer at the home
address that Attorney Burton had provided to the OLR during its
investigation, as well as her office address on file with the
State Bar. These attempts were unsuccessful. In October 2018,
the OLR mailed the complaint and order to answer to Attorney
Burton's home address and her office address on file with the
State Bar, via certified mail. See SCR 22.13(1).8
¶10 Attorney Burton failed to file an answer. In November
2018, the OLR filed a default motion.
¶11 In her ensuing report, the referee recommended that
the court find Attorney Burton in default. The referee accepted
the allegations of the complaint as the findings of fact in the
case and concluded that those facts established that Attorney
Burton had committed professional misconduct as set forth in the
four counts of the complaint. As requested by the OLR, the
referee recommended that Attorney Burton be publicly reprimanded
for her misconduct and that she be ordered to pay the costs of
the proceeding.
8 SCR 22.13(1) provides:
The complaint and the order to answer shall be
served upon the respondent in the same manner as a
summons under section 801.11(1) of the statutes. If,
with reasonable diligence, the respondent cannot be
served under section 801.11(1)(a) or (b) of the
statutes, service may be made by sending by certified
mail an authenticated copy of the complaint and order
to answer to the most recent address furnished by the
respondent to the state bar.
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No. 2018AP1397-D
¶12 Because Attorney Burton has not filed an appeal, this
matter is submitted to the court for its review pursuant to
SCR 22.17(2). We review a referee's findings of fact subject to
the clearly erroneous standard. See 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.
¶13 We agree with the referee that Attorney Burton should
be declared in default. Attorney Burton was given the
opportunity to file an answer and present a defense to the OLR's
complaint. She failed to do so, and thus may appropriately be
declared in default. We also accept the referee's findings of
fact based on the allegations of the complaint, and agree with
the referee that those findings support a determination of
misconduct on the four counts alleged in the OLR's complaint.
¶14 We also agree with the referee that a public reprimand
is an appropriate sanction for Attorney Burton's misconduct.
Although no two disciplinary proceedings are identical, a public
reprimand is generally consistent with our precedent. See In re
Disciplinary Proceedings Against Willihnganz, 2017 WI 4, 373
Wis. 2d 44, 889 N.W.2d 637 (publicly reprimanding a respondent-
lawyer with a disciplinary history for, among other things,
practicing law after his law license was administratively
suspended); see also In re Disciplinary Proceedings Against
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No. 2018AP1397-D
Weigel, 2012 WI 71, 342 Wis. 2d 129, 817 N.W.2d 835 (publicly
reprimanding the respondent-lawyer for, among other things,
continuing to use another attorney's name in a firm name after
that attorney's employment at the firm had ended). We also
believe that a public reprimand will be sufficient to deter
Attorney Burton and other attorneys from similar misconduct.
¶15 As to the issue of costs, it is our general practice
to impose full costs on attorneys who are found to have
committed misconduct. See SCR 22.24(1m). There is no reason to
depart from that practice here. We therefore impose full costs.
¶16 Finally, we note that no restitution was sought and
none is ordered in this proceeding.
¶17 IT IS ORDERED that Diann P. Burton is publicly
reprimanded for her professional misconduct.
¶18 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Diann P. Burton shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶19 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this decision.
¶20 IT IS FURTHER ORDERED that the license of Diann P.
Burton to practice law in Wisconsin shall remain temporarily
suspended pursuant to this court's July 10, 2018 order.
¶21 IT IS FURTHER ORDERED that the administrative
suspension of Diann P. Burton's license to practice law in
Wisconsin, due to her failure to pay mandatory bar dues, failure
to file a trust account certification, and failure to comply
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No. 2018AP1397-D
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. 2018AP1397-D
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