2019 WI 55
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2244-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against James Edward Hammis, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
James Edward Hammis,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST HAMMIS
OPINION FILED: May 23, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 14, 2019
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, J. dissents, joined by R.G. BRADLEY, J.
(opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there was a brief filed by
James E. Hammis and Hammis Law Offices, LLC, Stoughton. There
was an oral argument by James E. Hammis.
For the complainant-respondent, there was a brief filed by
Jonathan E. Hendrix and Office of Lawyer Regulation, Madison.
There was an oral argument by Jonathan E. Hendrix.
2019 WI 55
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2244-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against James Edward Hammis, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent, MAY 23, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
James Edward Hammis,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney James Edward Hammis has
appealed a report filed by Referee Lisa C. Goldman accepting
concessions Attorney Hammis made in a stipulation with the
Office of Lawyer Regulation (OLR) that he committed 40 counts of
professional misconduct and recommending that his license to
practice to law in Wisconsin be revoked. In his appeal,
Attorney Hammis primarily challenges the sanction recommendation
and asserts that an appropriate sanction would be a suspension
of his license to practice law in the range of one year.
No. 2014AP2244-D
¶2 Upon careful review of this matter, we uphold all of
the referee's findings of fact and conclusions of law. We
conclude, however, that the facts of this case do not warrant
revocation. Instead, we conclude that a three-year suspension
of Attorney Hammis' law license is an appropriate sanction for
the misconduct at issue. We also deem it appropriate to impose
certain conditions upon the reinstatement of his law license.
We also order him to pay $400 in restitution to one former
client and, as is our usual custom, we impose the full costs of
this proceeding, which are $13,160.22 as of March 4, 2019 on
Attorney Hammis.
¶3 Attorney Hammis was admitted to practice law in
Wisconsin in 1988. The State Bar of Wisconsin shows that he has
a Stoughton address.
¶4 In 2011, Attorney Hammis was suspended for four months
for ten counts of misconduct involving two clients. The
misconduct included practicing law while administratively
suspended and failing to cooperate with the OLR's investigation.
In re Disciplinary Proceedings Against Hammis, 2011 WI 3, 331
Wis. 2d 19, 793 N.W.2d 884. In 2015, Attorney Hammis' license
was suspended for 90 days for nine counts of misconduct,
including failure to timely report an Ohio misdemeanor
conviction to the OLR or the clerk of this court; failing to
communicate with an incarcerated client; retaining an advance
fee despite taking little or no action in the matter; failing to
hold the advance fee in trust; and failing to cooperate with the
2
No. 2014AP2244-D
OLR's investigation. In re Disciplinary Proceedings Against
Hammis, 2015 WI 14, 361 Wis. 2d 1, 859 N.W.2d 108.
¶5 On September 25, 2014, the OLR filed a complaint
alleging 46 counts of misconduct against Attorney Hammis.
Attorney Hammis filed an answer on January 5, 2015. On August
27, 2015, the OLR filed an amended complaint alleging 49 counts
of misconduct. Attorney Hammis filed an answer on January 19,
2016.
¶6 On September 29, 2016, the parties filed a
stipulation, and Attorney Hammis entered a no contest plea to 40
counts of misconduct. Attorney Hammis agreed that the referee
could use the allegations of the amended complaint as an
adequate factual basis to support findings of misconduct as to
each of the counts to which Attorney Hammis was pleading no
contest. The OLR withdrew nine counts of misconduct. Attorney
Hammis agreed that the referee's report should recommend that
the court order him to make restitution to one client, R.G., in
the amount of $400. The parties further agreed that the issue
of the appropriate level of discipline to be imposed for
Attorney Hammis' misconduct would be addressed on briefs.
¶7 On January 6, 2017, the parties filed a stipulation of
facts specifying that the referee may use specific allegations
in the amended complaint as an adequate factual basis to support
findings of misconduct as to each of the misconduct counts to
which Attorney Hammis pled no contest. The referee issued her
report and recommendation on September 14, 2017.
3
No. 2014AP2244-D
¶8 The counts to which Attorney Hammis pled no contest
involved nine separate client matters as well as numerous trust
account and other violations.
G.L.
¶9 According to the amended complaint, in 2006 Attorney
Hammis represented G.L. in several criminal cases. The
representation ended sometime in 2006 or 2007. In early 2008,
the Department of Corrections revoked G.L.'s probation and G.L.
was resentenced. G.L. hired Attorney Hammis to appeal his post-
revocation sentences. In October 2008, Attorney Hammis wrote to
G.L. saying he had mailed a copy of the original sentencing
transcript to G.L. "a month ago" and the letter had been
returned. Actually Attorney Hammis had just obtained a
transcript within the prior two weeks and had not mailed
anything to G.L. since June 2008. Attorney Hammis did not file
a notice of appearance in the case until January 2009. That
same month G.L. asked Attorney Hammis for information about the
cost of representation but Attorney Hammis never responded.
¶10 By virtue of the stipulation, Attorney Hammis pled no
contest to the following counts of misconduct with respect to
his representation of G.L.:
Count Four: By failing to respond to his client's
request for information on the costs of his
representation, Attorney Hammis violated
SCR 20:1.5(b)(3).1
1 SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
4
No. 2014AP2244-D
Count Five: By making misrepresentations to his
client by letter dated October 31, 2008, Attorney
Hammis violated SCR 20:8.4(c).2
B.D.
¶11 In 2010, B.D. was employed as a recreation director
for the City of Janesville (City). On November 5, 2010,
Janesville sent B.D. a "Pre-determination Notice of Discharge."
B.D. met with Attorney Hammis regarding her employment and paid
him an advance fee of $2,000. B.D. signed a written fee
agreement which allowed Attorney Hammis to deposit the fee into
his business account. The agreement required Attorney Hammis to
send B.D. a written accounting of his fees at the end of his
representation. Attorney Hammis told B.D. he would attend any
meetings with the City.
¶12 On December 6, 2010, the City terminated B.D.'s
employment. That same day, B.D. instructed Attorney Hammis to
file a discrimination complaint against the City. Attorney
Hammis prepared a complaint but never filed it.
¶13 On February 23, 2011, Attorney Hammis believed he
ceased representing B.D. He never provided her with an
accounting. In March of 2011, B.D. filed a grievance against
Attorney Hammis with the OLR. Attorney Hammis failed to respond
to numerous OLR requests for a response to the grievance.
Attorney Hammis eventually responded to the OLR in July 2011
2
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
5
No. 2014AP2244-D
indicating he had time sheets and phone records for his
representation of B.D. The OLR requested Attorney Hammis to
provide that information, but Attorney Hammis failed to provide
it.
¶14 By virtue of the stipulation, Attorney Hammis pled no
contest to the following counts regarding his representation of
B.D.
Count Six: For failing to account to B.D. for her
$2,000 advance fee deposited into his operating
account, as required by the alternative fee placement
measures of former SCR 20:1.15(b)(4m), Attorney Hammis
violated former SCR 20:1.15(b)(4).3
Counts Eight and Nine: By failing to pursue his
client's interest in negotiating considerations in
exchange for termination of her employment and by
failing at any time from December 6, 2010, to February
23, 2011, to file the discrimination complaint he had
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, 2016 WI 21 (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)(4) provided:
Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
6
No. 2014AP2244-D
prepared for his client, Attorney Hammis violated
SCR 20:1.3.4
Count Ten: By failing to timely respond to the OLR's
request for a written response to B.D.'s grievance,
Attorney Hammis violated SCR 22.03(2),5 enforced via
SCR 20:8.4(h).6
Count Eleven: By failing to furnish documents
requested by the OLR, which he previously admitted he
possessed, Attorney Hammis violated SCR 22.03(6),7
enforced via SCR 20:8.4(h).
4 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
5 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.
6 SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
7 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."
7
No. 2014AP2244-D
S.K.
¶15 In 2002, M.K. filed for divorce from S.K. Attorney
Hammis agreed to represent S.K. in the matter in June of 2009.
In November of 2010, the circuit court found S.K. in contempt
and ordered him to spend 45 days in jail, commencing December 1,
2010.
¶16 Attorney Hammis moved to withdraw from representing
S.K. on January 4, 2011. S.K. filed a grievance with the OLR
against Attorney Hammis on June 1, 2011. Attorney Hammis failed
to respond to numerous OLR requests for information regarding
the grievance. Attorney Hammis finally provided a partial
response in September of 2011. He provided additional documents
in December of 2011. By virtue of the stipulation, Attorney
Hammis pled no contest to the following count of misconduct
regarding his representation of S.K.
Count Thirteen: By not timely responding to the OLR's
request for a written response to S.K.'s grievance,
and then making only a partial and incomplete response
that did not include the documents expressly requested
and which was not supplemented until approximately
four months after the original OLR request, Attorney
Hammis violated SCR 22.03(2) and SCR 22.03(6),
enforced via SCR 20:8.4(h).
R.B. and Trust Account Violations
¶17 In May 2010, R.B. hired Attorney Hammis to represent
him in an automobile accident case. The parties agreed that
R.B. would receive the first $4,800 collected, while Attorney
Hammis would advance all expenses and recover anything in excess
of $4,800. Attorney Hammis filed a complaint in the case in
8
No. 2014AP2244-D
June 2010. He subsequently negotiated settlements for R.B. with
two insurance companies. One of the companies mailed Attorney
Hammis a check in early August 2010 along with a release for
R.B.'s signature. Attorney Hammis asked R.B. to lower his share
of the settlement to $4,500. R.B. reluctantly agreed. Attorney
Hammis deposited the check in his trust account but never
obtained R.B.'s signature on the release or sent a signed
release to the insurance company.
¶18 On or around August 13, 2010, Attorney Hammis gave
R.B. a trust account check for $4,500. Attorney Hammis failed
to send a check to another insurance company for their
subrogation interest. By January 27, 2011, the trust account's
balance was $1,000 less than the second insurance company was
owed for their subrogation interest. In February 2011, the
circuit court dismissed the R.B. case with prejudice because
although the parties had reported a settlement, no dismissal
order was submitted.
¶19 In the summer of 2011, both insurance companies filed
grievances with the OLR against Attorney Hammis. Attorney
Hammis did not respond to the OLR's initial requests for
information about the grievances. He subsequently provided
partial responses. In December 2011, Attorney Hammis closed the
trust account, which then had a balance of $9.07, having never
disbursed the $1,489.82 due to the subrogated insurance carrier.
¶20 On December 14, 2011, the OLR filed a motion
requesting an order to show cause with this court due to
Attorney Hammis' noncooperation with the OLR's investigation.
9
No. 2014AP2244-D
An order to show cause was issued. On December 30, 2011,
Attorney Hammis sent the subrogated insurance carrier a
"replacement check" for $1,489.82 with a cover letter
representing that he had previously sent a check on August 13,
2010.
¶21 The OLR withdrew its motion for an order to show cause
on January 9, 2012. On January 20, 2012, the credit union on
which the check was drawn refused to honor the check. The
account was closed four days later. In May of 2012, Attorney
Hammis sent the subrogated insurance carrier a check dated April
17, 2012, for $1,489.82 drawn on a business account at a
different bank.
¶22 In July and August 2013, the OLR wrote and then
personally served Attorney Hammis with requests for various
documents. Attorney Hammis did not timely respond. In
September 2013, the OLR filed another motion requesting an order
to show cause. An order to show cause was issued. In November
2013, this court temporarily suspended Attorney Hammis'
Wisconsin law license due to his failure to cooperate with the
OLR's investigation. Attorney Hammis responded to several of
the OLR's requests in December 2013. On December 30, 2013,
pursuant to the OLR's request, this court reinstated Attorney
Hammis' law license.
¶23 On October 7, 2010, Attorney Hammis transferred
$15,000 from his trust account to his wife's checking account,
leaving the trust account with a shortfall of $1,589.50. On
December 14, 2010, Attorney Hammis withdrew $45,000 from the
10
No. 2014AP2244-D
trust account and purchased a cashier's check in that amount.
Between July 2010 and December 2011, Attorney Hammis deposited
$15,400 of his or his law firm's funds into the trust account
but his client ledgers did not reflect those deposits.
¶24 Between July 2010 and February 2011, Attorney Hammis
made 56 prohibited Internet or telephone transactions totaling
over $250,000 with his trust account. Attorney Hammis failed to
identify the client or matter on deposit slips for 19 deposits
totaling over $640,000 into the trust account between July 2010
and February 2011. Attorney Hammis' client ledgers indicate
that he disbursed more funds then he received for four clients,
creating negative balances for those clients in the trust
account.
¶25 By virtue of the stipulation, Attorney Hammis pled no
contest to the following counts of misconduct:
Count Fourteen: By converting funds held in trust for
a third party to other purposes sometime between
August 10, 2010 (the deposit of the insurance
settlement check in the R.B. matter) and January 27,
2011 (a date on which the trust account balance was
less than the money owed to the subrogated insurance
carrier in the R.B. matter), Attorney Hammis violated
SCR 20:8.4(c).
Count Fifteen: By receiving funds in trust for a
third party, the subrogated insurance carrier, and
then failing to pay that party for over 20 months,
Attorney Hammis violated former SCR 20:1.15(d)(1)
through (3).8
8 Former SCR 20:1.15(d)(1) through (3) provided:
(1) Upon receiving funds or other property in
which a client has an interest, or in which the lawyer
(continued)
11
No. 2014AP2244-D
Count Sixteen: By failing to hold in trust the funds
he received for the purpose of paying the subrogation
claim of R.B.'s insurer, Attorney Hammis violated
SCR 20:1.15(b)(1).9
Count Eighteen: By falsely representing to the
subrogated insurance carrier that he had sent a check
for $1,489.82 to it on August 13, 2010, Attorney
Hammis violated SCR 20:8.4(c).
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
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.
(2) 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.
(3) When the lawyer and another person or the
client and another person claim ownership interest in
trust property identified by a lien, court order,
judgment, or contract, the lawyer shall hold that
property in trust until there is an accounting and
severance of the interests. If a dispute arises
regarding the division of the property, the lawyer
shall hold the disputed portion in trust until the
dispute is resolved. Disputes between the lawyer and
a client are subject to the provisions of sub. (g)(2).
9 SCR 20:1.15(b)(1) provides:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of
clients and 3rd parties paid to a lawyer or law firm
in connection with a representation shall be deposited
in one or more identifiable trust accounts.
12
No. 2014AP2244-D
Count Twenty: By failing to timely answer the OLR's
request for a response and his subsequent failure to
fully and fairly disclose all the facts and
circumstances including those concerning the
subrogated insurance carrier's claim, by his wilful
failure to fully answer questions, by failing to
furnish requested documents, by repeatedly responding
to requests for information by referencing non-
existent attachments and by generally failing to
provide relevant information, Attorney Hammis violated
SCR 22.03(2) and (6), and SCR 20:8.4(h).
Count Twenty-One: By withdrawing $45,000 from his
trust account on December 14, 2010, in order to obtain
a cashier's check, Attorney Hammis violated former
SCR 20:1.15(e)(4)a.10
County Twenty-Two: By engaging from July 2010 through
February 2011 in 56 prohibited Internet and telephone
transactions with a combined dollar value of
$259,281.22 to and from his trust account, Attorney
Hammis violated former SCR 20:1.15(e)(4)b. and c.11
10 Former SCR 20:1.15(e)(4)a. provided: "No disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"
11 Former SCR 20:1.15(e)(4)b. and c. provided:
b. No deposits or disbursements shall be made to
or from a pooled trust account by a telephone transfer
of funds. This section does not prohibit any of the
following:
1. wire transfers.
2. telephone transfers between non-pooled draft
and non-pooled non-draft trust accounts that a lawyer
mains for a particular client.
c. A lawyer shall not make deposits to or
disbursements from a trust account by way of an
Internet transaction.
13
No. 2014AP2244-D
Count Twenty-Three: By failing to identify the client
or matter on every deposit slip for all of the 19
deposits totaling $640,745.79 made to the trust
account between July 9, 2010, and February 24, 2011,
Attorney Hammis violated former SCR 20:1.15(f)(1)d.12
Count Twenty-Four: By converting funds held in trust
for clients to other purposes sometime between July
21, 2010, and December 9, 2011, Attorney Hammis
violated SCR 20:8.4(c).
Count Twenty-Six: By depositing at least $15,400 of
lawyer or law firm funds into the trust account
between July 2, 2010, and February 24, 2011, which
funds far exceeded any amounts reasonably necessary to
pay monthly account service charges, and none of which
was allocated to any client or matter for which funds
were held in trust, Attorney Hammis violated former
SCR 20:1.15(b)(3).13
Count Twenty-Seven: By disbursing funds from the
trust account on at least four occasions that resulted
in negative balances on the individual client ledgers
recording funds held in trust with respect to four
different clients or matters, Attorney Hammis violated
former SCR 20:1.15(f)(1)b.14
12 Former SCR 20:1.15(f)(1)d. provided:
Deposit slips shall identify the name of the
lawyer or law firm, and the name of the account. The
deposit slip shall identify the amount of each deposit
item, the client or matter associated with each
deposit item, and the date of the deposit. The lawyer
shall maintain a copy or duplicate of each deposit
slip. All deposits shall be made intact. No cash, or
other form of disbursement, shall be deducted from a
deposit. Deposits of wired funds shall be documented
in the account's monthly statement.
13 Former SCR 20:1.15(b)(3) provided: "No funds belonging
to the lawyer or law firm, except funds reasonably sufficient to
pay monthly account service charges, may be deposited or
retained in a trust account."
14 Former SCR 20:1.15(f)(1)b. provided:
(continued)
14
No. 2014AP2244-D
M.V.
¶26 On May 28, 2010, M.V. hired Attorney Hammis to
represent her in her role as the personal representative of an
estate. M.V. paid Attorney Hammis $2,000 in advanced fees and
signed a written fee agreement. The fee agreement did not
authorize Attorney Hammis to use the estate's funds to pay his
billings without court approval.
¶27 On August 30, 2010, a Dane County Circuit Court judge
named R.B. as special administrator of the estate. On October
4, 2010, Attorney Hammis deposited $150,000 of estate funds into
his trust account. On October 5, 2010, Attorney Hammis
transferred $1,000 of estate funds out of his trust account for
legal fees. On October 8, 2010, Attorney Hammis sent the
special administrator's attorney a check for $145,000
representing the estate's funds. An invoice for Attorney
Hammis' representation of M.V. dated February 28, 2011,
indicated that Attorney Hammis used the $5,000 as a "reserve
fee." Attorney Hammis' client ledger indicates that on February
A subsidiary ledger shall be maintained for each
client or 3rd party for whom the lawyer receives trust
funds that are deposited in an IOLTA account or any
other pooled trust account. The lawyer shall record
each receipt and disbursement of a client's or 3rd
party's funds and the balance following each
transaction. A lawyer shall not disburse funds from
an IOLTA account or any pooled trust account that
would create a negative balance with respect to any
individual client or matter.
15
No. 2014AP2244-D
28, 2011, he transferred the remaining $4,000 of estate funds
out of his trust account.
¶28 M.V. died on November 16, 2011. On December 7, 2011,
D.E. was appointed as special administrator of M.V.'s estate.
D.E. hired Attorney Michael Rumpf to represent her. On December
7, 2011, Attorney Rumpf wrote to Attorney Hammis requesting,
among other things, that he transfer to Attorney Rumpf any
estate funds held in trust, and provide an accounting of those
funds. On December 22, 2011, Attorney Hammis transferred his
M.V. file to Attorney Rumpf and signed an order for
substitution. He did not provide Attorney Rumpf with any
billing information, work product, or an accounting of funds.
¶29 Over the next few months, Attorney Rumpf sent Attorney
Hammis several requests for the entire M.V. file. Attorney
Hammis often did not substantively respond, and he did not give
Attorney Rumpf any additional documents.
¶30 On February 28, 2012, D.E. filed a grievance against
Attorney Hammis with the OLR. From August through November of
2012, the OLR wrote Attorney Hammis several letters asking him
to respond to the grievance, but Attorney Hammis provided no
substantive responses.
¶31 On March 13, 2013, the OLR moved this court for an
order to show cause why Attorney Hammis' license should not be
suspended for failing to cooperate with its investigation of the
D.E. grievance and other matters. This court issued an order to
show cause on March 15, 2013. On April 2, 2013, Attorney Hammis
responded to the OLR's information requests. As a result, the
16
No. 2014AP2244-D
OLR moved to withdraw its motion for a license suspension, and
this court dismissed the order to show cause. In April and June
2013, the OLR wrote and personally served Attorney Hammis with
requests for more information about the $5,000 estate
disbursements, but Attorney Hammis failed to respond.
¶32 By virtue of entering into the stipulation, Attorney
Hammis pled no contest to the following counts of misconduct
concerning the estate:
Count Twenty-Eight: By withdrawing estate funds from
his trust account as "reserve fees" to apply to his
legal bill, without notice to and consent from his
client or other parties with a potential interest in
the funds, Attorney Hammis violated former
SCR 20:1.15(b)(1).
Count Twenty-Nine: By withdrawing estate funds from
his trust account as a "reserve fee" to apply to his
legal bill, without notice to and consent from his
client or other parties with a potential interest in
the funds, Attorney Hammis violated former
SCR 20:1.15(g)(1).15
15 Former SCR 20:1.15(g)(1) provided:
At least 5 business days before the date on which
a disbursement is made form a trust account for the
purpose of paying fees, with the exception of
contingent fees or fees paid pursuant to a court
order, the lawyer shall transmit to the client in
writing all of the following:
a. an itemized bill or other accounting showing
the services rendered;
b. notice of the amount owed and the anticipated
date of the withdrawal; and
c. a statement of the balance of the client's
funds in the lawyer trust account after the
withdrawal.
17
No. 2014AP2244-D
Count Thirty: By failing to provide a copy of the
entire M.V. file, including billing statements,
accountings and work product, to the successor
representative of his client in the estate matter and
her counsel, Attorney Hammis violated SCR 20:1.16(d).16
Count Thirty-One: By failing to timely respond to the
OLR's initial grievance investigation of D.E.'s
grievance and submitting a response to the OLR only
after the Supreme Court of Wisconsin issued an Order
to Show Cause why his license should not be
temporarily suspended for failing to cooperate,
Attorney Hammis violated SCR 22.03(2).
Count Thirty-Two: By failing to respond to the OLR's
request for additional information in its
investigation of D.E.'s grievance, Attorney Hammis
violated SCR 22.03(6).
R.W.
¶33 On November 3, 2011, R.W. hired Attorney Hammis to
draft a deed and a will. In May of 2012, Attorney Hammis
drafted the deed and R.W. signed it. In the following months,
Attorney Hammis was unresponsive to R.W.'s messages. R.W. filed
a grievance against Attorney Hammis in September 2012. Attorney
Hammis failed to respond to the OLR's requests to provide
information about the grievance. Attorney Hammis did fax a
16 SCR 20:1.16(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.
18
No. 2014AP2244-D
response to the OLR on December 27, 2012. That same day,
Attorney Hammis emailed R.W. asking for his and his late wife's
social security numbers for a real estate transfer form. This
was Attorney Hammis' first communication to R.W. in several
months. R.W. sent Attorney Hammis the information.
¶34 As of April of 2013, Attorney Hammis had not filed
R.W.'s deed. In May and June of 2013, the OLR wrote to Attorney
Hammis asking him to provide additional information about his
representation of R.W. Attorney Hammis failed to respond.
¶35 By entering into the stipulation, Attorney Hammis pled
no contest to the following counts of misconduct with respect to
his representation of R.W.:
Count Thirty-Three: By failing to timely file the
quit claim deed on his client's behalf, after the deed
had been executed and all necessary information had
been received, Attorney Hammis violated SCR 20:1.3.
Count Thirty-Four: By failing to respond to his
client's inquiries regarding the status of his matter,
and by failing to initiate status updates to his
client, including his purported need for additional
information from the client before being able to
complete the representation, Attorney Hammis violated
SCR 20:1.4(a)(3)17 and (4).18
Count Thirty-Five: By failing to respond to the OLR's
request for additional information in its R.W.
grievance investigation, Attorney Hammis violated
SCR 22.03(6).
17
SCR 20:1.4(a)(3) provides: "A lawyer shall keep the
client reasonably informed about the status of the matter."
18
SCR 20:1.4(a)(4) provides: "A lawyer shall promptly
comply with reasonable requests by the client for information."
19
No. 2014AP2244-D
R.G.
¶36 On November 4, 2011, R.G. spoke with Attorney Hammis
about setting up a limited liability company (LLC) and drafting
related documents. Attorney Hammis said he could do this work
within a week. On November 7, 2011, R.G. hired Attorney Hammis,
signed a fee agreement, and paid him $400 to set up the LLC. In
November and December of 2011, R.G. sent Attorney Hammis several
emails asking for updates on drafting the LLC documents.
Attorney Hammis responded occasionally to the communications,
but never provided an update.
¶37 On December 22, 2011, R.G. emailed Attorney Hammis,
terminating his representation and requesting that he refund her
fees. Attorney Hammis failed to respond. In March of 2012,
R.G. filed a grievance against Attorney Hammis with the OLR. In
April 2012 she sued him in small claims court, seeking damages
based on his failure to return her fees.
¶38 On April 30, 2012, Attorney Hammis represented that
his notary commission was valid when he notarized a document
submitted in R.G.'s lawsuit. In fact, Attorney Hammis had not
been a licensed notary since January 20, 2011, when the
Secretary of State revoked his notary commission.
¶39 On July 13, 2012, Attorney Hammis sent the OLR a
response to R.G.'s grievance. As part of the response he sent
an "Operating Agreement" and "Contribution Agreement" for the
LLC and submitted a case log representing he had drafted the
agreements on December 1, 2011. In fact, Attorney Hammis did
not draft the agreements until after R.G. had filed her
20
No. 2014AP2244-D
grievance. R.G. obtained a judgment against Attorney Hammis in
April 18, 2013.
¶40 Based on his entry into the stipulation, Attorney
Hammis pled no contest to the following counts of misconduct
with respect to his representation of R.G.:
Count Thirty-Six: Having been hired on November 7,
2011 to prepare LLC documents for R.G., and at that
time creating the expectation that the work could be
completed in a matter of days or a week, by failing to
produce the LLC documents and provide them to R.G. as
of December 22 and 27, 2011, when R.G. provided email
notice of the termination of representation and
requested the return of her advanced fee in the
matter, Attorney Hammis violated SCR 20:1.3.
Count Thirty-Seven: By failing to respond to multiple
email inquiries from R.G. in December 2011, in which
R.G. sought updates concerning the status of the LLC
work, Attorney Hammis violated SCR 20:1.4(a)(4).
Count Thirty-Eight: Having failed to produce the LLC
papers and provide them to R.G. as of the December 22
and 27, 2011 termination emails, in which R.G. sought
a refund, and having stated in a January 4, 2012 email
to R.G., "I have submitted the file and the
instruction to my bookkeeper to remit refund of your
advance fee per your request," by thereafter failing
to refund R.G., Attorney Hammis violated
SCR 20:1.16(d).
Count Thirty-Nine: By notarizing an affidavit of
mailing in a Dane County small claims action with the
declaration that his notary commission was permanent,
when his notary commission was in fact revoked,
thereby violating Wis. Stat. § 137.01(2), Attorney
Hammis violated SCR 20:8.4(c) and SCR 20:8.4(f).19
19SCR 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."
21
No. 2014AP2244-D
Count Forty: Having made no mention of preparing any
documents related to R.G.'s desired LLC in response to
R.G.'s multiple emails, and likewise failing to
mention any such purported document preparation when
informing R.G. on January 4, 2012 that he had
instructed his bookkeeper to refund R.G.'s advance fee
payment, by then sending the OLR documents relating to
an LLC, purportedly drafted on or about December 1,
2011, offered to the OLR to support his claim of
compensable drafting services, when Attorney Hammis
had not prepared those documents prior to R.G.'s
termination of representation or as of January 4, 2012
when he promised R.G. a refund, Attorney Hammis
violated SCR 22.03(6), via SCR 20:8.4(h).
D.M.
¶41 In 2008, D.M. hired Attorney Hammis to represent her
in a criminal matter. He subsequently represented her in other
matters. D.M. filed a grievance against Attorney Hammis in
September 2012. Attorney Hammis failed to respond to the OLR's
requests for information about the grievance. In March 2013,
the OLR moved this court for an order to show cause why Attorney
Hammis' license should not be suspended for failure to cooperate
with its investigation of D.M.'s grievance and other matters.
This court issued an order to show cause on March 15, 2013.
Attorney Hammis responded to the OLR's information requests and
on April 3, 2013, the OLR moved to withdraw its motion. This
court dismissed the motion and order to show cause the following
day. In October 2013, the OLR wrote to Attorney Hammis asking
for additional information about his representation of D.M.
Attorney Hammis never responded.
¶42 By entering into the stipulation, Attorney Hammis pled
no contest to the following counts of misconduct regarding his
representation of D.M.:
22
No. 2014AP2244-D
Count Forty-One: By initially failing to timely
respond to the OLR's investigation of D.M.'s grievance
and submitting a response only after the Supreme Court
of Wisconsin issued an Order to Show Cause why his
license should not be temporarily suspended for
failing to cooperate, Attorney Hammis violated
SCR 22.03(2), enforced via SCR 20:8.4(h).
Count Forty-Two: By failing to respond to the OLR
letter dated October 23, 2013 requesting further
investigative information, Attorney Hammis violated
SCR 22.03(6), enforced via SCR 20:8.4(h).
G.T.
¶43 On August 9, 2012, G.T. hired Attorney Hammis to
obtain title to an automobile and gave him several original
documents. G.T. paid Attorney Hammis $500 in fees. Over the
next several months, Attorney Hammis failed to respond to G.T.'s
communications, except for sending G.T. one email on October 26,
2012. G.T. tried to visit Attorney Hammis' office in late
October 2012 but found it locked and closed. G.T. hired another
attorney who was also unable to contact Attorney Hammis.
¶44 G.T. filed a grievance against Attorney Hammis on
November 7, 2012. Attorney Hammis failed to respond to the
OLR's request for information about the grievance. On March 13,
2013, the OLR moved this court for an order to show cause why
Attorney Hammis' license should not be suspended for failure to
cooperate with its investigation of G.T. and other matters.
This court ordered Attorney Hammis to show cause. Attorney
Hammis responded to the OLR's information requests and in late
March of 2013, he returned G.T.'s original documents and $500.
This court dismissed the OLR's motion for an order to show cause
based on the OLR's request.
23
No. 2014AP2244-D
¶45 By entering into the stipulation, Attorney Hammis pled
no contest to the following counts of misconduct with respect to
his representation of G.T.:
Count Forty-Three: By failing to return his client's
original documents and return his unearned fee for
approximately five months after the representation
ended, Attorney Hammis violated SCR 20:1.16(d).
Count Forty-Four: By initially failing to timely
respond to the OLR's investigation of G.T.'s
grievance, submitting a response only after the
Supreme Court of Wisconsin issued an Order to Show
Cause why his license should not be temporarily
suspended for failing to cooperate, Attorney Hammis
violated SCR 22.03(2).
Michigan Licensure
¶46 Attorney Hammis was admitted to practice law in
Michigan, but his Michigan law license has been suspended for
non-payment of dues since 2001. From 2008 through at least
2012, Attorney Hammis represented himself in emails as an
"experienced business and general practice attorney representing
businesses and individuals in the State of Wisconsin and
Michigan."
¶47 By entering into the stipulation, Attorney Hammis pled
no contest to the following count of misconduct with respect to
this representation:
Count Forty-Five: By representing himself as
authorized to practice law and to represent clients in
the State of Michigan in emails to A.W.,
representatives of an insurance company, B.D., R.G.
and/or Attorney Michael Rumpf, although his Michigan
law license has been continuously suspended since
24
No. 2014AP2244-D
February 15, 2001, Attorney Hammis violated
SCR 20:7.1.20
Practice in Bankruptcy Court While Suspended
¶48 On August 26, 2011, Judge Robert D. Martin suspended
Attorney Hammis from practicing before the Bankruptcy Court for
the Western District of Wisconsin. Attorney Hammis has not been
reinstated from this suspension. In 2012, D.A. contacted
Attorney Hammis for help in filing bankruptcy. D.A. did not
know that Attorney Hammis had been suspended from bankruptcy
practice in the Western District, where D.A. lived. D.A.
contacted and met with Attorney Hammis several times in 2012 and
20 SCR 20:7.1 provides:
A lawyer shall not make a false or misleading
communication about the lawyer or the lawyer's
services. A communication is false or misleading if
it:
(a) contains a material misrepresentation of fact
or law, or omits a fact necessary to make the
statement considered as a whole not materially
misleading;
(b) is likely to create an unjustified
expectation about results the lawyer can achieve, or
states or implies that the lawyer can achieve results
by means that violate the Rules of Professional
Conduct or other law; or
(c) compares the lawyer's services with other
lawyers' services, unless the comparison can be
factually substantiated; or
(d) contains any paid testimonial about, or paid
endorsement of, the lawyer without identifying the
fact that payment has been made or, if the testimonial
or endorsement is not made by an actual client,
without identifying that fact.
25
No. 2014AP2244-D
2013 about the proposed bankruptcy. Attorney Hammis completed
the forms in a bankruptcy petition for D.A.'s signature.
¶49 On December 3, 2013, Attorney Hammis personally filed
D.A.'s bankruptcy petition with the Bankruptcy Court for the
Western District of Wisconsin, but he informed the staff that
D.A. was proceeding pro se. Attorney Hammis paid the filing fee
for D.A.'s bankruptcy with a check from his law firm bank
account. In January 2014, Attorney Hammis mailed D.A.'s pay
advices to the bankruptcy court. On January 21, 2014, the
bankruptcy trustee held a meeting of creditors in D.A.'s
bankruptcy. During the hearing, D.A. gave conflicting
statements about the assistance he received from Attorney
Hammis. At that time, D.A. learned that Attorney Hammis had
been suspended from practicing before the bankruptcy court.
D.A. consulted another bankruptcy attorney and ultimately
obtained a discharge of his debts.
¶50 By virtue of entering into the stipulation, Attorney
Hammis pled no contest to the following counts of misconduct
with respect to his representation of D.A.:
Count Forty-Six: By failing to consult with D.A. on
the unusual means he chose to attempt to pursue D.A.'s
bankruptcy action in light of Attorney Hammis'
suspension from Bankruptcy Court for the Western
District of Wisconsin, including attempting to conceal
Attorney Hammis' involvement with D.A.'s bankruptcy
action from the Bankruptcy Court, Attorney Hammis
violated SCR 20:1.4(a)(2).21
21
SCR 20:1.4(a)(2) provides: "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
26
No. 2014AP2244-D
Count Forty-Seven: By failing to reveal to D.A. that
he was suspended from practicing before the Bankruptcy
Court and could not represent D.A. in a bankruptcy
proceeding, Attorney Hammis violated
SCR 20:1.4(a)(5). 22
Count Forty-Eight: By filing D.A.'s bankruptcy
petition and proceeding with the bankruptcy action
while suspended from Bankruptcy Court for the Western
District of Wisconsin, Attorney Hammis violated
SCR 20:3.4(c). 23
Referee's Report
¶51 In her report and recommendation, the referee found
that the OLR had met its burden to prove by clear, satisfactory,
and convincing evidence that Attorney Hammis committed all of
the counts of misconduct to which he pled no contest. The
referee noted that virtually all of the conduct stipulated to by
Attorney Hammis occurred after the OLR had filed its complaint
in Attorney Hammis' first disciplinary matter. The referee said
that many of the violations alleged in this case are similar to
violations that occurred in Attorney Hammis' two previous
disciplinary matters. The referee pointed out that Attorney
Hammis stipulated to committing five violations of
SCR 20:8.4(c), which would have required the OLR to prove that
22SCR 20:1.4(a)(5) provides: "A lawyer shall consult with
the client about any relevant limitation on the lawyer's conduct
when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law."
23SCR 20:3.4(c) provides: "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
27
No. 2014AP2244-D
Attorney Hammis "engaged in conduct involving dishonesty, fraud,
deceit or misrepresentation." The referee said that by entering
a no contest plea to each of those counts and the facts
supporting the counts, Attorney Hammis waived his right to
contest that those counts in fact involved fraud,
misrepresentation, dishonesty, or deceit. The referee said that
Attorney Hammis' argument that those counts involved mere
negligence must be ignored.
¶52 The referee also noted that Attorney Hammis pled no
contest to ten counts involving trust account violations under
SCR 20:1.15, one count involving 56 separate prohibited
transactions. The referee said, "perhaps Hammis despises the
rules of trust accounting, has not learned them, or finds them
too difficult to comply with, and so chooses to ignore them
entirely." The referee also said "his subsequent untruthful
explanations of what occurred . . . only highlight his inherent
dishonesty. It is difficult to understand what lesser
corrective discipline than revocation would prompt proper
corrective action on his part to ensure compliance with what is
required."
¶53 The referee went on to say that in this matter, as in
his past disciplinary cases, Attorney Hammis developed a pattern
whereby he would avoid answering or responding to the OLR's
requests for information about a grievance until an order to
show cause had been issued and then would avoid a license
suspension by minimally responding to the OLR. The referee
pointed out Attorney Hammis pled no contest to 11 counts
28
No. 2014AP2244-D
involving his failure to respond to the OLR's request for
information. The referee said Attorney Hammis dismisses all of
his violations of the duty to respond to the OLR as justified or
minimal and claims little or no sanction should be imposed for
those violations.
¶54 The referee said:
It seems from the current violations that Hammis has
not changed his practices or his conduct found in each
of the prior discipline decisions. Hammis seems to do
what he wants without regard for the Supreme Court
rules and when caught he asserts or implies that his
violations are merely technical irregularities, a
nuisance that he cannot possibly be expected to
follow. At no point in his response brief did he
express remorse for his transgressions, or empathy for
those clients who filed complaints against him. And,
he points out in his brief that many of the technical
violations pled to were discovered by OLR's snooping
around in his business, his files, his record
keeping. . . . Hammis' argument misses the mark.
¶55 The referee concluded by saying:
Revocation should be imposed when there is little hope
that an attorney will chose to modify his or her
behavior to the standards required in Chapter 20.
This is Hammis' third disciplinary action and involves
the same rule violations, the same conduct as his
other actions. Some attorneys violate the same rules
Hammis has but show a genuine desire to correct their
behavior, to learn new practices to prevent mishaps,
and commit themselves to better communications with
their clients. Hammis is not among them.
¶56 The referee said Attorney Hammis' two prior
suspensions apparently did nothing to provoke any change in his
law business practices. For that reason, the referee agreed
with the OLR's recommendation that Attorney Hammis' license to
practice law in Wisconsin should be revoked. The referee also
29
No. 2014AP2244-D
recommended, consistent with the terms of the stipulation, that
Attorney Hammis be required to pay restitution to R.G. in the
amount of $400, if he has not already done so.
The Appeal
¶57 Attorney Hammis' appeal raises three issues: (1) Did
the referee err in the introduction and utilization of facts and
subsequent conclusions that were not stipulated by the parties?
(2) Is the use of the OLR of unknown and undisclosed subpoenas
and discovery with financial institutions a violation of due
process? (3) Did the referee err in the recommendation that
Attorney Hammis' license be revoked?
¶58 Attorney Hammis says the parties' stipulation and his
no contest plea and separate stipulation of facts "were a
balanced and negotiated decision made by the parties to assure
that the format of the briefing and arguments of the parties
would follow a series of facts that were the result of the
agreements of the parties." He says the referee's report made
reference to "multiple very specific incorrect or non-stipulated
facts." He accuses the referee of stepping outside the
stipulation of facts reached by the parties. He says "the
degree and damage to such stepping out is not completely
determinable."24 He says the referee's reliance on non-
stipulated facts should be considered the "fruit of the
poisonous tree."
24
For example, Attorney Hammis complains that the referee
referred to details of the misconduct underlying Attorney
Hammis' earlier disciplinary proceedings.
30
No. 2014AP2244-D
¶59 Attorney Hammis notes that SCR 22.03(8) provides that
the OLR director may subpoena the respondent and others and
compel any person to produce pertinent books, papers and
documents. He argues this rule is contrary to Wis. Stat.
§ 805.07 which outlines the process and procedure for the
service and notification to parties of subpoenas. He says,
"once again the 'fruit of this poisonous tree' are
significant. . . ."
¶60 Most significantly, Attorney Hammis argues that the
referee erred in adopting the OLR's recommendation that Attorney
Hammis' law license should be revoked. He argues that his
misconduct does not demonstrate a pattern of intentionally
inflicted harm, malfeasance or financial malfeasance to any of
his clients. He says without question he did make mistakes that
were in violation of supreme court rules, but he attempts to
paint the misconduct as not being all that serious.
¶61 Contrary to the referee's conclusion that there is
little hope Attorney Hammis will modify his behavior and that he
has shown little remorse for his actions, Attorney Hammis argues
he has acknowledged his errors and mistakes. Rather than
revocation of his license, he says a one-year suspension would
be an appropriate sanction. In the alternative, he asks that
the entire referee report be set aside and a new referee
appointed "and that counts connected to the issued subpoenas,
[R.B.] and the Trust account issues are duly dismissed."
¶62 The OLR takes the position that this court should
endorse the referee's report, revoke Attorney Hammis' license,
31
No. 2014AP2244-D
and order him to pay $400 restitution to R.G. The OLR argues
that the referee's findings of fact are supported by the record
and are not clearly erroneous. The OLR says none of the facts
that Attorney Hammis argues were outside of the parties'
stipulation are material to the misconduct. The OLR says, "the
facts which Hammis identifies on appeal as erroneous or
problematic were either immaterial or properly cited in the
referee's report."
¶63 The OLR says this court should reject Attorney Hammis'
theory that the documents subpoenaed by the OLR "poisoned" the
case. The OLR says while disciplinary proceedings generally
follow the rules of civil procedure, OLR investigations do not,
and the supreme court rules do not require the OLR to notify a
respondent when it subpoenas documents during a confidential
investigation.
¶64 As to the appropriate sanction, the OLR says
revocation is warranted. It points out Attorney Hammis'
misconduct involves multiple client matters and 40 counts of
misconduct ranging from abandonment of clients, to misleading
clients, to false notarization, to practicing bankruptcy law
while suspended, to serious trust account malfeasance, and
multiple willful failures to cooperate with OLR investigations
into his conduct. The OLR says Attorney Hammis' misconduct
reaches almost every aspect of practicing law and shows a
pervasive pattern of disregarding the Rules of Professional
Conduct.
32
No. 2014AP2244-D
¶65 The OLR also notes that the misconduct at issue here
encompass the time frame from 2008 to 2012. The OLR notes that
frequently Attorney Hammis would resume his obligations to his
clients only after the OLR's involvement following the filing of
a grievance. The OLR says the referee correctly noted that the
misconduct at issue here is similar to the misconduct for which
Attorney Hammis has previously been disciplined.
¶66 A referee's findings of fact are affirmed unless they
are found to be clearly erroneous. This court reviews de novo
the referee's conclusions of law. In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. This court determines the appropriate level of
discipline given the particular facts of the case, independent
of the referee's recommendation but benefitting from it. In re
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
¶67 By entering into the stipulation and by pleading no
contest, Attorney Hammis has admitted the factual basis
underlying the 40 counts of misconduct. The only legitimate
challenge he can lodge to the referee's report is the
recommended sanction of revocation. It was appropriate for the
referee to note similarities between the misconduct at issue
here and the misconduct for which Attorney Hammis was previously
disciplined, which led her to conclude he had learned nothing
from his previous mistakes. Similarly, Attorney Hammis'
complaints about the OLR's subpoenaing his bank records is
33
No. 2014AP2244-D
unavailing since he has admitted the trust account and other
banking violations.
¶68 As to the appropriate level of discipline, the facts
alleged in the amended complaint, to which Attorney Hammis pled
no contest, show a clear pattern of neglect of his clients'
needs and objectives and an utter disregard for his obligations
as an attorney. His misconduct was not an isolated occurrence
but occurred in nine separate client representations over the
course of years.
¶69 We recognize, as the dissent points out, that the
misconduct at issue here occurred prior to Attorney Hammis' 2015
suspension. The complaint in this matter was filed in 2014 and
the amended complaint was filed in 2015. Some of the delay in
the completion of this case was caused by Attorney Hammis'
failure to cooperate in the OLR's investigations as well as by
his motion practice and multiple extension motions. While it
may have been preferable for this matter to have been brought to
conclusion sooner, the passage of time since Attorney Hammis'
most recent misconduct in no way excuses or mitigates the
misconduct.
¶70 While Attorney Hammis portrays himself as remorseful
and says he has accepted responsibility for his transgressions,
some of his statements at oral argument call those assertions
into question. Attorney Hammis' representation of R.G. is
illustrative. R.G. retained Attorney Hammis in November of 2011
and paid him $400. Attorney Hammis never did the work. R.G.
terminated his representation in December of 2011 and demanded a
34
No. 2014AP2244-D
refund of the $400. R.G. filed a grievance in March of 2012.
In April of 2013 she obtained a small claims judgment against
him. In September of 2016, Attorney Hammis stipulated that he
owed R.G. $400 in restitution. When asked at oral argument why
he had not paid R.G. the $400, Attorney Hammis replied that he
was "waiting for a court order." The small claims court
rendered a judgment in favor of R.G. six years ago, and Attorney
Hammis stipulated two and a half years ago that he needed to pay
R.G. the $400. The fact that this modest sum remains unpaid in
2019 belies Attorney Hammis' claim that he is remorseful and has
fully accepted responsibility for his actions.
¶71 Revocation is the most serious sanction that may be
imposed under our attorney disciplinary system and it is
reserved for the most egregious cases. Although Attorney
Hammis' misconduct was undeniably very serious, we are not
convinced that it rises to the level of warranting revocation.
We note that the misconduct at issue here occurred between 2008
and 2012. Attorney Hammis stated at oral argument that he
stepped away from his general legal practice in 2011 or 2012.
Since that time he has performed some legal work for a company
with which he has a long-term relationship. He says he
currently is representing a defendant in one felony criminal
case.
¶72 While no two disciplinary matters are identical, we
find this case to be somewhat similar to In re Disciplinary
Proceedings Against Bryant, 2015 WI 7, 360 Wis. 2d 625, 858
N.W.2d 681. Attorney Bryant stipulated to a three-year
35
No. 2014AP2244-D
suspension for 37 counts of misconduct including one violation
of SCR 20:8.4(c) and multiple counts of failing to take
meaningful action or advance his clients' interests, failing to
properly hold unearned fees and advanced payment of fees in
trust, converting client funds to pay himself attorney's fees,
and failing to cooperate in the OLR's investigations. Attorney
Bryant had a previous consensual private reprimand.
¶73 In addition, this case is somewhat similar to In re
Disciplinary Proceedings Against Dahle, 2015 WI 29, 361
Wis. 2d 430, 862 N.W.2d 582. Attorney Dahle committed 55 counts
of misconduct, including borrowing or taking some $400,000 from
clients without regard to conflict of interest restrictions and
requirements. Attorney Dahle had no prior disciplinary history.
We suspended her law license for two years and six months.
Although the amount of money converted or mishandled by Attorney
Hammis is much less, he does have a prior disciplinary history
and he repeatedly failed to respond to the OLR's request for
information after his clients had filed grievances and only when
served with an order to show cause and faced with the possible
suspension of his law license did he finally respond to the
OLR's inquiries. Under the unique facts of this case, we
conclude that a three-year suspension of Attorney Hammis'
license to practice law in Wisconsin is an appropriate sanction
for his misconduct.
¶74 We also deem it appropriate to impose various
conditions upon Attorney Hammis' resumption of the practice of
law, in the event his law license is reinstated. Those
36
No. 2014AP2244-D
conditions include practicing law under the supervision of a
legal mentor approved by the OLR for a period of two years after
his license is reinstated; a prohibition upon ever maintaining a
trust account; and limiting his practice to performing legal
work for his corporate client and assisting family and friends
in legal matters. We also order Attorney Hammis to make
restitution in the amount of $400 to R.G., and we order him to
pay the full costs of this proceeding.
¶75 IT IS ORDERED that the license of James Edward Hammis
to practice law in Wisconsin is suspended for a period of three
years, effective July 3, 2019.
¶76 IT IS FURTHER ORDERED that James Edward Hammis shall
pay restitution of $400 to R.G.
¶77 IT IS FURTHER ORDERED that within 60 days of the date
of this order James Edward Hammis shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$13,160.22 as of March 4, 2019.
¶78 IT IS FURTHER ORDERED that the restitution to R.G.
specified above is to be completed prior to paying costs to the
Office of Lawyer Regulation.
¶79 IT IS FURTHER ORDERED that, as conditions of
reinstatement of his license to practice law in Wisconsin, James
Edward Hammis be subject to the following: (1) practicing law
under the supervision of a legal mentor approved by the Office
of Lawyer Regulation for a period of two years; (2) a
prohibition upon ever maintaining a trust account; and (3)
37
No. 2014AP2244-D
limiting his practice to performing legal work for his corporate
client and assisting family and friends in legal matters.
¶80 IT IS FURTHER ORDERED that James Edward Hammis 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.
¶81 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
38
No. 2014AP2244-D.akz
¶82 ANNETTE KINGSLAND ZIEGLER, J. (dissenting).
Attorney Hammis stated, both in his brief and at oral argument,
that in 2012 he virtually discontinued his legal practice, with
the exception of occasionally assisting family members and
friends——usually without charge——and performing three to five
hours of legal work per month for a longtime corporate client.
He no longer has a trust account and does not make his living
from practicing law. He stated he has no intention of expanding
his legal practice in the future. He has expressed remorse for
his admitted misconduct and questions what more he could have
done in the past seven years to alleviate concerns that his
extremely limited practice would be a threat to his clients or
the legal profession.
¶83 The majority acknowledges that all of the misconduct
at issue here occurred prior to 2015, when Attorney Hammis'
license was suspended for 90 days, and some of the misconduct
occurred prior to the four-month suspension imposed in 2011.
Indeed, the complaint in this matter was filed nearly five
months before the court issued its order imposing the 2015
suspension. The serial nature of the OLR's complaints against
Attorney Hammis appears to expose a flaw in Wisconsin's attorney
regulatory system. If the misconduct counts at issue in this
case and the counts at issue in the case resulting in the 90-day
suspension had been prosecuted at the same time, the resulting
discipline may well have been less than the three years and
three months that was imposed in the two separate cases. In
spite of the fact that Attorney Hammis has virtually not
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practiced law since 2012 and has committed no misconduct since
2015, he is nonetheless being suspended for an additional three
years in 2019 for misconduct that occurred long ago. While the
passage of time should not excuse misconduct, the majority fails
to adequately justify why a three-year suspension is warranted
given that the previous suspensions were for four months and 90
days and there has been no misconduct in the past four years.
¶84 The Office of Lawyer Regulation Procedures Review
Committee recently filed a series of administrative rule
petitions dealing with various aspects of Wisconsin's attorney
regulatory system. The Committee was tasked with reporting to
this court any recommendations that would increase the
efficiency, effectiveness, and fairness of the OLR process. In
my view, this case raises issues that warrant the court's review
when it takes up the rules petitions.
¶85 Given the facts and procedural history of this case, I
am unable to conclude that a three-year suspension is warranted.
Therefore, I respectfully dissent.
¶86 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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