2019 WI 86
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1882-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Cole J. White, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Cole J. White,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST WHITE
OPINION FILED: August 23, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2019 WI 86
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1882-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Cole J. White, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, AUG 23, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
Cole J. White,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a supplemental referee's
report and recommendation concluding that Attorney Cole J. White
committed 27 counts of professional misconduct in his handling
of four client matters. The referee recommended that this court
impose a 15-month suspension of Attorney White's law license.
We adopt the referee's findings of fact, conclusions of law, and
recommendation regarding discipline. We also agree with the
referee's recommendation that Attorney White be required to make
restitution to two clients. Finally, we impose the full costs
No. 2017AP1882-D
of this proceeding, which total $17,105.44 as of January 23,
2019, on Attorney White.
¶2 Attorney White was admitted to practice law in
Wisconsin in 2013 and practices in Green Bay. He has no prior
disciplinary history.
¶3 On September 26, 2017, the Office of Lawyer Regulation
(OLR) filed a complaint against Attorney White alleging 28
counts of professional misconduct. Attorney White filed an
answer on November 24, 2017. James R. Erickson was appointed
referee on December 12, 2017.
¶4 An evidentiary hearing was held on September 12, 2018.
Attorney White chose not to appear in person at the hearing.
His counsel, Attorney Jevon J. Jaconi, appeared on his behalf.
Pursuant to an agreement between Attorney Jaconi and counsel for
the OLR, with the approval of the referee, the deposition
transcript of Attorney White, including exhibits, was offered
and received into evidence. Two of Attorney White's former
clients testified in person at the hearing, and two testified
telephonically. Testimony was also taken from other witnesses,
both in person and telephonically.
¶5 The referee issued his initial report and
recommendation on January 3, 2019. On April 9, 2019, this court
remanded the matter to the referee for further proceedings. The
referee issued a supplemental report on June 10, 2019.
¶6 In his supplemental report, the referee noted that the
parties agreed to dismiss one of the counts in the complaint.
The referee further noted that Attorney White stipulated to 17
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No. 2017AP1882-D
counts in the complaint. The referee found that the OLR had met
its burden of proof with respect to the 10 remaining disputed
counts.
¶7 The OLR's complaint alleged eight counts of misconduct
with respect to Attorney White's representation of S.E. In
September 2012, the Neenah Police Department and the Lake
Winnebago Area Metropolitan Enforcement Group conducted a raid
of S.E.'s business pursuant to a "no-knock" search warrant
issued by Winnebago County Circuit Court Judge Scott Woldt,
based upon suspicious illegal drug activities. S.E. was charged
with several felonies following the raid. In December 2013, he
pled no contest to a signal misdemeanor possession charge. All
other charges were dropped.
¶8 During the criminal proceeding against S.E., S.E.'s
attorney brought a motion to suppress evidence on the basis that
the warrant was not valid because Judge Woldt was not "neutral
and detached" and should have disqualified himself from issuing
the warrant. The motion was denied.
¶9 In June of 2014, S.E. hired Attorney White to file a
federal civil rights lawsuit against the City of Neenah and
others as a result of the raid. Attorney White provided S.E.
with a fee agreement charging a flat fee of $4,500 plus a 30
percent contingent fee on any settlement. S.E. was to be
responsible for any costs. The fee agreement did not state
Attorney White's intention to use the alterative fee placement
measures allowed under former SCR 20:1.15(b)(4m). S.E. paid
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No. 2017AP1882-D
Attorney White the $4,500 flat fee in installments. Attorney
White did not place any of the money in his trust account.
¶10 On December 2, 2014, Attorney White filed a lawsuit in
United States District Court for the Eastern District of
Wisconsin. The plaintiffs included S.E. and his business, as
well as adjoining business owners. The defendants included the
City of Neenah, the Neenah Police Department, Judge Woldt, the
Neenah Police Chief, a captain of the Neenah Police Department,
and Winnebago County. Attorney White's complaint against Judge
Woldt was based on the judge's signing of the search warrant,
which the plaintiffs asserted was "overly broad and invalid."
The complaint also alleged the judge was not neutral because of
a prior dispute between him and S.E.
¶11 Judge Woldt was represented in the lawsuit by
Assistant Attorney General David C. Rice. On December 9, 2014,
AAG Rice filed a motion to dismiss on numerous grounds including
judicial immunity, Eleventh Amendment immunity, failure to state
a claim upon which relief can be granted, issue preclusion, and
lack of jurisdiction. Attorney White did not respond to the
motion to dismiss, and the court granted it on February 5, 2015.
Attorney White told the OLR he did not respond to the motion
because he believed it would be granted. Attorney White
admitted to the OLR that the complaint he filed was "bloviated
and histrionic," but he said he filed it anyway because it was
what his client wanted "in terms of sending a message."
¶12 Attorney White failed to respond to requests that he
provide dates that his clients would be available for a
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No. 2017AP1882-D
deposition. He also failed to respond to interrogatories and
requests for production of documents.
¶13 S.E. periodically contacted Attorney White to find out
the status of the case. Attorney White would respond by saying
that everything was taken care of, things were going well, and
he hoped to set up a settlement conference. On November 13,
2015, counsel for the City of Neenah and the Neenah Police
Department filed a motion to dismiss based on the plaintiffs'
failure to prosecute the action. Attorney White failed to
provide his clients with a copy of the motion to dismiss. On
November 30, 2015, Attorney White responded to the motion
claiming he had moved his office and did not receive deposition
notices until the day after they were scheduled to take place
because the defendants had mailed the notices to his former
office address. Attorney White also claimed he had notified the
defendants of his new office address in June 2015 and that the
plaintiffs had all the evidence they needed to proceed to trial.
Attorney White did not copy his clients with his response to the
motion to dismiss. After filing the response, Attorney White
mentioned the motion to dismiss in a text message he sent to
S.E. that included the statement "we filed a response calling
out their game."
¶14 On December 1, 2015, counsel for Winnebago County also
filed a motion to dismiss due to the plaintiffs' failure to
state a claim against the County and the plaintiffs' failure to
prosecute the case. On December 14, 2015, counsel for the
Neenah Police Department and the City of Neenah filed a reply to
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No. 2017AP1882-D
Attorney White's response to their motion to dismiss alleging
that the response contained flagrant misrepresentations.
¶15 On January 2, 2016, Attorney White filed a response to
Winnebago County's motion to dismiss that was identical to his
response to the City of Neenah's and Neenah Police Department's
motion. Attorney White included no supporting affidavits or
memorandum, and he did not copy his clients on his response.
¶16 On January 20, 2016, the court issued a decision
granting the remaining defendants' motions to dismiss and
ordering Attorney White to personally pay a sanction of $1,500
to the defendants. Attorney White failed to inform S.E. and the
other plaintiffs of the dismissal order. S.E. learned about the
dismissal when reporters asked him for comment.
¶17 On January 26, 2016, S.E. wrote to Attorney White
directing him to file an appeal. Attorney White falsely
informed S.E. that he "never received a goddamned email from
them about dates" and that the defendants had filed a motion to
dismiss because Attorney White did not timely receive notice of
the deposition. Attorney White agreed to file a notice of
appeal and said the judge's decision was "filled with so many
lies, misstatements and misconstructions it verges on the
absurd."
¶18 S.E. subsequently hired new counsel. On February 17,
2016, S.E.'s new counsel filed a motion to alter or amend the
judgment dismissing the case. The motion was denied, with the
court commenting that "the merits of the complaint, which had
named a judge, were not particularly strong."
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No. 2017AP1882-D
¶19 In April 2016, S.E. filed a grievance against Attorney
White with the OLR. In Attorney White's response to the
grievance, he falsely said that he had had several conversations
with S.E. about the depositions and that S.E. had expressed
exasperation and annoyance about having to answer questions.
Attorney White also falsely stated that he had a telephone
conversation with counsel for the defendants telling them the
location of the depositions was problematic. Attorney White
also falsely told the OLR that he had informed the defendants'
counsel of his new address in a telephone call.
¶20 Attorney White also provided an email to the OLR,
purportedly written on September 14, 2015, in which he requested
a call to discuss scheduling depositions. The email was
fabricated.
¶21 Attorney White has not paid the $1,500 in costs and
attorney's fees as ordered in the court's January 20, 2016
decision.
¶22 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
S.E.:
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No. 2017AP1882-D
Count 1: By failing to hold the advanced fees that
S.E. paid to him in trust, Attorney White violated
former SCR 20:1.15(b)(4).1
Count 2: By naming Judge Woldt as a defendant despite
his immunity as a judge from civil suits for his
judicial acts and the existence of multiple other
grounds precluding a civil action against Judge Woldt,
Attorney White violated SCR 20:3.1(a)(1).2
Count 3: By failing to respond to requests from
opposing counsel and by failing to otherwise take
action to prosecute his clients' case, Attorney White
violated SCR 20:1.3.3
1 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.
2 SCR 20:3.1(a)(1) provides: "In representing a client, a
lawyer shall not knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer may
advance such claim or defense if it can be supported by good
faith argument for an extension, modification or reversal of
existing law."
3 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
8
No. 2017AP1882-D
Count 4: By failing to respond to the defendants'
discovery requests, Attorney White violated
SCR 20:3.4(d). 4
Count 5: By failing to inform S.E. and the other
plaintiffs of the defendants' discovery requests,
including interrogatories and deposition notices and
by failing to inform them of the dismissal of the
lawsuit, Attorney White violated SCR 20:1.4(a)(3).5
Count 6: In the course of the federal lawsuit filed
on behalf of S.E., by making false statements in
documents filed with the court, Attorney White
violated SCR 20:3.3(a)(1).6
Count 7: By making false statements to his client
about the status of the case and the conduct of the
opposing parties, Attorney White violated
SCR 20:8.4(c).7
Count 8: In the course of the OLR's investigation, by
fabricating an email in an effort to show that he had
responded to opposing counsel's request to schedule
depositions and inform them of his new office address,
by falsely asserting that he and/or his intern had
telephone conversations with opposing counsel, and
telling the OLR "the court records were updated" in
response to the OLR's request for evidence that he had
informed opposing counsel of his new address, and that
4 SCR 20:3.4(d) provides: "A lawyer shall not in pretrial
procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party."
5 SCR 20:1.4(a)(3) provides: "A lawyer shall keep the
client reasonably informed about the status of the matter."
6 SCR 20:3.3(a)(1) provides: "A lawyer shall not make a
false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer."
7 SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
9
No. 2017AP1882-D
he had several conversations with his clients about
scheduling depositions, Attorney White violated
8
SCR 22.03(6), enforceable via SCR 20:8.4(h). 9
¶23 The second client matter detailed in the OLR's
complaint involved Attorney White's representation of R.R., who
hired Attorney White to represent him in modifying a custody and
placement order that granted R.R.'s ex-wife sole custody and
granted R.R. supervised visits and telephone contact with his
daughter. At the time he undertook this representation,
Attorney White had little or no experience in custody and
placement cases.
¶24 On September 23, 2014, Attorney White provided R.R.
with a written agreement to represent him "in connection with
the alteration of custody and placement order currently in
effect with K.K.," which would "include counseling, advocacy and
representation in all hearings, motions, mediations and any
other proceedings arising in or related to this action."
Attorney White charged R.R. a flat fee of $11,000 and described
the fee as being non-refundable. The fee agreement did not
8SCR 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."
9SCR 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)."
10
No. 2017AP1882-D
state Attorney White's intention to use the alterative fee
placement measures allowed under former SCR 20:1.15(b)(4m).
R.R.'s mother and step-father paid the $11,000 advanced fee to
Attorney White. Attorney White did not place the money in his
trust account.
¶25 On June 26, 2015, Attorney White filed a three-page
standard "fill in the blank" motion to modify form available on
the court's website. The motion requested that physical
placement of R.R.'s daughter be modified from primary placement
to shared placement and legal custody be modified to joint legal
custody. The factual basis alleged in support of the motion was
that the mother regularly withheld visitation and contact and
had made baseless criminal allegations against Attorney White's
client.
¶26 A motion hearing was held before a court commissioner
on September 23, 2015. The court commissioner denied the
motions since no substantial change had been alleged since the
September 26, 2013 custody and placement order; the
psychological issues that served as the basis for supervised
visitation had not been addressed; and the allegations of
interference with visitation were more properly the subject of
an enforcement motion.
¶27 Despite R.R. providing Attorney White with a
substantial amount of documentation about the placement case,
including police reports, court records, and other documents,
Attorney White did not provide any of those documents to the
court commissioner.
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No. 2017AP1882-D
¶28 Attorney White claimed that after the September 2015
hearing he informed R.R. he would pursue a new application to
the court to modify placement, but that R.R. never provided the
necessary information. As a result, Attorney White said he
considered the case closed. Attorney White had no documentation
that he ever explained to R.R. the outcome of the motion, that
he requested additional information from R.R. to pursue the
matter, or that he considered the matter closed. Attorney White
provided no documentation that he earned the entire $11,000
advanced fee.
¶29 Attorney White subsequently led R.R. to believe that
the custody matter was ongoing and advised R.R. to claim a Texas
residence in order to establish a substantial change in
circumstances.
¶30 On September 23, 2015, R.R. hired Attorney White to
pursue a second matter, a defamation claim against his ex-wife
alleging she falsely accused him of molesting their daughter.
Attorney White provided R.R. a second fee agreement which
provided for a flat fee of $5,000 that was described as non-
refundable. The agreement acknowledged receipt of an initial
$200 payment and called for additional payments of $300 on
September 24 and $4,500 by October 9. The second fee agreement
did not state Attorney White's intention to use the alterative
fee placement measures allowed under former SCR 20:1.15(b)(4m).
¶31 R.R. paid Attorney White a total of $2,700 toward the
defamation action. Attorney White did not place the funds in
his trust account.
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No. 2017AP1882-D
¶32 In January 2016, R.R. sent Attorney White a text
message inquiring about the status of both cases. Attorney
White offered to meet R.R. on January 15, 2016, and R.R.
confirmed the meeting with a text message to Attorney White on
January 15. When R.R., along with his mother and step-father,
arrived for the meeting, Attorney White was leaving and claimed
the meeting had not been confirmed. At the January 15, 2016
meeting, R.R. provided Attorney White with a Texas address.
Attorney White maintained the custody case was ongoing and he
had scheduled 19 court dates but had to cancel them because R.R.
was unavailable.
¶33 On March 1, 2016, after not hearing from Attorney
White, R.R. sent Attorney White a text message asking about a
court date in the custody matter. R.R. asked that Attorney
White return the remaining funds paid to him in the defamation
case. Attorney White failed to respond.
¶34 On April 27, 2016, R.R. filed a grievance against
Attorney White with the OLR. In response, Attorney White
acknowledged a refund was due in the defamation case. He said
he had not provided R.R. with a refund because R.R. had not
clarified that he wanted to terminate the representation,
despite Attorney White's repeated efforts to reach him over the
past 10 weeks. Attorney White had no documentation of any
attempts to contact R.R.
¶35 On June 5, 2016, Attorney White sent R.R. a letter
accounting for the fees in the defamation action. Attorney
White charged R.R. for 12.5 hours of legal work, for a total of
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No. 2017AP1882-D
$3,125. Although the accounting exceeded the advanced fees,
Attorney White refunded R.R. $270.
¶36 As to the reasonableness of the $11,000 advanced fee
in the custody case, Attorney White acknowledged the "fee was
higher than necessary." However, Attorney White told the OLR
that the fee was reasonable based upon his research in Nolo
guides and on Google, as well as his expectation that there
would be weekly calls and meetings and a large amount of
documents to review.
¶37 R.R. says he visited Attorney White's office at least
ten times and left repeated phone messages asking that Attorney
White return his file. While Attorney White claims he returned
the file to R.R. on June 5, 2016, R.R. denies receiving it.
¶38 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
R.R.:
Count 9: By charging R.R. $11,000 to represent him in
bringing a standard motion to modify a custody order
when Attorney White had no experience handling such
matters, performed little work, and achieved no
results, Attorney White violated SCR 20:1.5(a).10
10 SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(continued)
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No. 2017AP1882-D
Count 10: By failing to hold in trust the $11,000 and
the $2,700 advanced fees paid to him for the two
matters he agreed to handle on R.R.'s behalf, with no
evidence of an intention to utilize the advanced fee
alternative, Attorney White in each instance violated
former SCR 20:1.15(b)(4).
Count 11: By failing to review file materials, obtain
evidence, and develop a viable strategy for pursuing
R.R.'s objective of modifying the placement order and
addressing the specific issues that served as the
basis for supervised placement, Attorney White
violated SCR 20:1.1.11
Count 12: By failing to take sufficient action on
behalf of R.R. to achieve his objective of returning
to shared custody and unsupervised placement with his
daughter, Attorney White violated SCR 20:1.3.
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
11 SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
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No. 2017AP1882-D
Count 13: By failing to take any action on behalf of
R.R. to pursue the defamation claim Attorney White
agreed to handle, Attorney White violated SCR 20:1.3.
Count 14: By providing R.R. with false case status
information in the post-divorce custody and placement
case, including leading R.R. to believe the case was
ongoing, Attorney White violated SCR 20:8.4(c).
Count 15: By failing to return R.R.'s file to him
upon termination of the representation; failing upon
termination of the representation to refund to R.R.
the fees paid to Attorney White in advance to pursue
modification of a custody and placement order, which
fees Attorney White could not establish were earned;
and failing upon termination of the representation to
refund to R.R. the fees paid to Attorney White in
advance to pursue a defamation action, which fees
Attorney White could not establish were earned,
Attorney White, in each instance, violated
SCR 20:1.16(d).12
Count 16: By misrepresenting to the OLR that he had
returned R.R.'s file, Attorney White violated
SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶39 The third client matter detailed in the OLR's
complaint involved Attorney White's representation of K.G., who
hired Attorney White to represent her in a dispute with her
former landlord in January of 2016. In November 2015, K.G., who
12 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.
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No. 2017AP1882-D
operated a dance studio, received a notice to quit or pay rent.
The landlord asserted that K.G. owed over $38,000 in rent,
maintenance, expenses, and property tax. K.G. vacated the
property in late December 2015.
¶40 On January 9, 2016, K.G. paid Attorney White an
advanced fee of $1,000. Attorney White led K.G. to believe a
resolution of the lease dispute was possible. K.G. denies
receiving a fee agreement from Attorney White. Attorney White
later gave the OLR an unsigned fee agreement that stated he
agreed to provide "counseling, advocacy, and any negotiation
conferences or settlement meetings should they occur," but not
any "in court" activities. The agreement provided that the fees
would be charged on a flat fee basis for a period of one year.
The agreement did not state Attorney White's intention to use
the alterative fee placement measures allowed under former
SCR 20:1.15(b)(4m).
¶41 Attorney White told the OLR that after he was hired he
made several attempts to communicate with counsel for K.G.'s
landlord, but he provided no documentation to support that
statement. In May 2016, the landlord filed suit against K.G.
and her business seeking a money judgment for amounts due under
the lease agreement. K.G. was served on May 20, 2016. She
notified Attorney White of the lawsuit by text message that day
and informed him the answer was due in 20 days. Attorney White
informed K.G. he had been "calling the lawyer for two weeks
daily with no returns" and asked that she fax a copy of the
complaint to him.
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No. 2017AP1882-D
¶42 K.G. did not have a fax machine and offered to drop
off the complaint at Attorney White's office on May 21, 2016.
Attorney White offered to meet K.G. elsewhere as his office
would be closed. The meeting never took place.
¶43 Throughout May and June 2016, K.G. contacted Attorney
White several more times via text message with questions about
filing for bankruptcy and requesting that Attorney White contact
opposing counsel to offer a lesser amount. Attorney White told
K.G. that the landlord's attorney stated on a couple occasions
he would talk to his client, but that Attorney White had heard
nothing back from him.
¶44 On June 7, 2016, K.G. asked Attorney White if he could
file an answer. Attorney White did not respond. K.G. sent
another text message asking if Attorney White was able to file
the answer. Attorney White responded that K.G. never provided
him with a copy of the complaint and that he would need that in
order to do anything. K.G. provided Attorney White with a copy
of the complaint that same day via email and text message.
Attorney White acknowledged receipt of the complaint and told
K.G., "I'll file an answer at no additional charge. But if this
goes into further litigation without resolution then there will
be additional fees."
¶45 On June 9 and 10, 2016, K.G. asked Attorney White if
there were any updates, and Attorney White failed to respond.
Attorney White failed to file an answer on K.G.'s behalf. On
June 21, 2016, the landlord's attorney filed a motion for
default judgment. K.G. received notice of the default judgment
18
No. 2017AP1882-D
motion in the mail on June 22, 2016. She contacted Attorney
White, who responded that he had not known that half the time
for a response had elapsed when he agreed to file an answer and
said "an Answer isn't something that I can turn out overnight."
¶46 On June 23, 2016, K.G. sent Attorney White a certified
letter terminating his representation and requesting that
Attorney White send her an itemization of his services.
Attorney White responded on July 18, 2016, refusing to return
any fees. He claimed he had fulfilled the purpose of their
agreement, and he failed to provide an accounting.
¶47 Counsel for K.G.'s landlord said that to his knowledge
he never had any contact with Attorney White either before or
after filing the lawsuit against K.G.
¶48 K.G. hired successor counsel, who moved to reopen the
case. The matter was settled before the action was reopened,
with K.G. paying the full amount owed.
¶49 K.G. filed a grievance against Attorney White with the
OLR. During the OLR's investigation, Attorney White falsely
told the OLR he had made several attempts to contact the
landlord's attorney and that after the lawsuit was filed he
informed opposing counsel's office that he represented K.G.
¶50 The OLR's complaint alleged the following counts of
misconduct of with respect to Attorney White's representation of
K.G.:
Count 17: By failing to hold in trust the advanced
fees paid to him by K.G., Attorney White violated
former SCR 20:1.15(b)(4).
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No. 2017AP1882-D
Count 18: By failing to take any action to attempt to
resolve K.G.'s dispute with her landlord prior to the
filing of the collection lawsuit; and by failing to
file an answer on K.G.'s behalf to the collection
lawsuit, Attorney White, in each instance, violated
SCR 20:1.3.
Count 19: By providing K.G. with inaccurate case
status information, including by representing to his
client that he had contacted opposing counsel in an
effort to negotiate resolution of her lease dispute,
when he had taken no such action, Attorney White
violated SCR 20:8.4(c).
Count 20: By failing to provide K.G. a bill itemizing
the services he provided in order to substantiate that
he had earned the fee advanced to him, Attorney White
violated SCR 20:1.5(b)(3).13
Count 21: By failing upon termination of the
representation to refund to K.G. the $1,000 advanced
fees she paid and which he had not earned, Attorney
White violated SCR 20:1.16(d).
Count 22: In the course of the OLR's investigation of
K.G.'s grievance, by willfully providing the OLR false
information that he had made several attempts to
contact counsel for the landlord and, once the lawsuit
was filed, had informed opposing counsel's office that
he represented K.G., Attorney White violated
SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶51 The final client matter detailed in the OLR's
complaint involved Attorney White's representation of W.B., who
hired Attorney White to file a social security disability claim
in September 2015. On September 11, 2015, W.B. signed a fee
agreement. The agreement required a $1,500 flat fee and stated
that Attorney White would charge an additional "10% of any back-
13 SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
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No. 2017AP1882-D
pay settlement amount collected." The fee agreement did not
state Attorney White's intention to use the alterative fee
placement measures allowed under former SCR 20:1.15(b)(4m).
Attorney White failed to place the $1,500 advanced fee in his
trust account.
¶52 In December 2015, W.B. moved to Florida and provided
Attorney White with his new address. Over the next few months,
W.B. sent Attorney White periodic text messages inquiring about
the status of the claim. On March 1, 2016, W.B. texted Attorney
White. Attorney White failed to respond. On April 25, 2016,
Attorney White responded to W.B.'s request for an update saying,
"Yes it's under review. It's a painfully slow process." On
June 29, 2016, W.B. again requested an update, and Attorney
White again failed to respond.
¶53 On July 5, 2016, W.B. sent Attorney White a message
saying he understood that Attorney White was experiencing some
health issues but that W.B. needed to know what was happening.
Attorney White responded the same day saying, "It takes 6-12
months for even an initial review date."
¶54 On August 18, 2016, W.B. went to a Social Security
Administration office in Florida to check on his disability
application and learned there was no application on file for
him. When W.B. texted Attorney White informing him that the
Social Security Administration had no record of his claim,
Attorney White responded that he uses a "sub atty for those
cases" and he promised to follow up. Attorney White said if no
action had been taken he would refund W.B.'s fee. W.B. was not
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No. 2017AP1882-D
aware of and never consented to Attorney White referring his
case to another attorney.
¶55 On August 26, 2016, W.B. filed his own application for
disability benefits with the Social Security Administration and
instructed Attorney White to send him a refund by the end of the
week. Attorney White said he would send a refund. He also said
he spoke to and terminated the attorney to whom he had referred
W.B.'s case. However, on or about August 26, 2016 through
September 29, 2016, the attorney to whom Attorney White claimed
he referred the case was in jail.
¶56 On September 7, 2016, W.B. sent Attorney White a text
message asking about the refund. Attorney White said it "went
in the mail on Friday." On September 14, 2016, W.B. texted
Attorney White again saying he had not received the refund.
Attorney White failed to respond. On September 19, 2016, still
not having received a refund, W.B. sent Attorney White another
text message expressing his frustration with Attorney White's
dishonesty and asking that he "do the right thing." Attorney
White responded by saying he was trying to track down the
mailing and denied he was trying to deceive W.B. W.B. replied
with a request for a replacement check. Attorney White promised
to check on the issue the next morning.
¶57 On October 10, 2016, W.B filed a grievance against
Attorney White with the OLR. Attorney White failed to respond
to an initial request to respond to the grievance. On December
12, 2016, Attorney White emailed the OLR acknowledging that
nothing had been done on W.B.'s case and claiming he had
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No. 2017AP1882-D
contracted the filing out to another attorney and that attorney
was having legal problems. Attorney White said he planned to
refund W.B.'s fee in two installments, but he held off because
he did not want there to be an appearance of impropriety in
sending W.B. money without the OLR's approval.
¶58 On December 19, 2016, the OLR sent follow-up
correspondence to Attorney White informing him that his email
did not fully respond to all issues raised by W.B.'s grievance.
The OLR also informed Attorney White he did not need the OLR's
approval to refund fees.
¶59 On January 24, 2017, the OLR received Attorney White's
supplemental response to W.B.'s grievance. Attorney White
provided copies of forwarded email messages purportedly
exchanged with the attorney he claimed he retained to handle
W.B.'s case. Attorney White claimed, without documentation,
that he had paid the other attorney $1,200 to handle W.B.'s case
via a money order from Kwik Trip. The other attorney reviewed
all of his emails, text messages, and personal calendar and was
unable to place W.B. as a client. The other attorney also could
not locate any emails purportedly sent to him from Attorney
White regarding W.B.; he denied ever receiving $1,200 from
Attorney White to handle W.B.'s case; and he said he never
handled or wanted to handle social security disability claims.
¶60 Attorney White told the OLR he mailed a $750 refund
check to W.B. on January 10, 2017 and that he would mail a
second $750 refund check on February 19, 2017. As of March 2,
2017, W.B. had not received any refund check.
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No. 2017AP1882-D
¶61 On March 2, 2017, the OLR sent Attorney White
correspondence via email and regular mail inquiring about the
refund. Despite being copied with the OLR's correspondence to
W.B. at his current address, Attorney White told the OLR, "I
don't have a good address for him and no contact information for
him anymore. The address I had is not correct. If you have it
I'd love to get this to him." The OLR responded by providing
Attorney White with W.B.'s current address. On March 9, 2017,
W.B. confirmed receipt of two $750 refund checks from Attorney
White. Attorney White included a handwritten note claiming he
had initially missed a "9" in W.B.'s address. The note asked
that W.B. only cash one of the checks and wait until the end of
the month to cash the other one.
¶62 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
W.B.:
Count 23: By failing to hold the advanced fee he
received from W.B. in trust, Attorney White violated
former SCR 20:1.15(b)(4).
Count 24: By failing to pursue W.B.'s social security
disability claim, Attorney White violated SCR 20:1.3.
Count 25: By providing W.B. misleading information
regarding the status of his social security claim,
implying that the case was progressing and that he had
hired another attorney to pursue the claim when
neither was true, Attorney White violated
SCR 20:8.4(c).
Count 26: By failing upon termination of the
representation to promptly refund W.B.'s entire fee,
none of which was earned, Attorney White violated
SCR 20:1.16(d).
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No. 2017AP1882-D
County 27: By misrepresenting to W.B. in September
2016 that he had mailed his refund to him, Attorney
White violated SCR 20:8.4(c).
Count 28: In the course of the OLR's investigation of
W.B.'s grievance, by willfully providing the OLR
information that was not true, including falsified
emails and assertions that he had referred W.B.'s case
to another lawyer who neglected the case, that he had
paid that lawyer $1,200 to handle the case, and that
he had mailed W.B. a refund check on January 10, 2017,
Attorney White violated SCR 22.03(6), enforced under
the Rules of Professional Conduct via SCR 20:8.4(h).
¶63 The referee noted in his supplemental report that the
parties agreed to the dismissal of count 14 of the complaint.
It also noted that by stipulation of the parties filed on
September 20, 2018, Attorney White agreed he was not contesting
counts 1, 10, 17, and 23 of the complaint. The referee also
noted that in his post-trial brief Attorney White stipulated to
counts 2, 3, 4, 5, 6, 7, 8, 9, 13, 15, 16, 24, 25, 26, 27, and
28. The referee said that since Attorney White was essentially
admitting the facts of the 16 stipulated counts, the facts
alleged in the complaint as to each of those counts were found
as true and correct and the referee further found that Attorney
White committed each of those counts of misconduct.
¶64 The referee went on to conclude that the OLR met its
burden of proof as to the remaining ten counts of misconduct.
As to the appropriate sanction, the referee said it was quite
clear that Attorney White was obviously not sufficiently
experienced or knowledgeable enough to take on responsibility
for any of the legal matters he accepted for any of the four
clients who filed grievances against him. The referee noted
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No. 2017AP1882-D
Attorney White apparently commenced his solo law practice
shortly after graduating from law school. The referee said
Attorney White:
[H]as shown an apparent disdain for doing the
necessary research or other work required to become a
capable advocate for his clients in each case.
Apparently he never asked himself "what do I have to
prove in order to win this case?" Assistance that
could have helped him has been readily available in
Wisconsin if he had only been capable of recognizing
his early limitations in complicated legal and
practical matters of assisting his clients. The sad
result is that his clients each suffered the
consequences of his deficiencies.
¶65 The referee agreed with the OLR's recommended
sanction, a 15-month suspension of Attorney White's license to
practice law in Wisconsin. While the referee said that, to
Attorney White's credit, he has admitted to many of the counts
of misconduct, he "has offered no regrets or ideas for needed
restitution due to his lack of ability in handling the matters
which he undertook."
¶66 The referee recommended that Attorney White should be
ordered to reimburse K.G. $1,000 and should be ordered to
reimburse R.R. $13,430. Finally, the referee recommended that
Attorney White be required to pay the full costs of this
proceeding.
¶67 Neither party has appealed the referee's report, so
this matter is submitted to the court for 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,
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No. 2017AP1882-D
675 N.W.2d 747. We review the referee's conclusions of law
de novo. 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.
¶68 After careful review of the matter, we agree that a
15-month suspension of Attorney White's license to practice law
in Wisconsin is appropriate. Although no two disciplinary
matters are precisely alike, we find that the misconduct at
issue here is somewhat similar to that presented in In re
Disciplinary Proceedings Against Ruppelt, 2017 WI 80, 377
Wis. 2d 441, 898 N.W.2d 473. In that case, an attorney's
license was suspended for 15 months for multiple counts of
misconduct which included failure to hold client money in trust;
dishonest billing practices; dishonesty to the OLR in its
investigation; failure to properly communicate with a client;
and false statements to a tribunal.
¶69 There are many similarities between the misconduct at
issue in Ruppelt and the misconduct at issue here. In both
cases, the attorneys repeatedly failed to follow the rules of
professional conduct and engaged in a variety of misleading and
deceptive behavior in an attempt to conceal their misconduct.
Attorney White agreed to represent clients in areas of law in
which he had little or no experience. He took their money and,
to the extent he performed any legal services for the clients,
his representation was profoundly deficient. He lied to his
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No. 2017AP1882-D
clients and the OLR, and he has refused to refund fees. His
misconduct warrants a 15-month license suspension.
¶70 We also agree with the referee's recommendation that
Attorney White be required to make restitution in the amount of
$1,000 to K.G. and $13,430 to R.R. Finally, as is our normal
practice, we find it appropriate to impose the full costs of
this disciplinary proceeding, which are $17,105.44, on Attorney
White.
¶71 IT IS ORDERED that the license of Cole J. White to
practice law in Wisconsin is suspended for a period of 15
months, effective October 4, 2019.
¶72 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Cole J. White shall pay restitution to R.R. in
the amount of $13,430 and to K.G. in the amount of $1,000.
¶73 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Cole J. White shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $17,105.44.
¶74 IT IS FURTHER ORDERED that restitution is to be
completed prior to paying costs to the Office of Lawyer
Regulation.
¶75 IT IS FURTHER ORDERED that Cole J. White shall comply
with the provisions of SCR 22.26 regarding the duties of a
person whose license to practice law in Wisconsin has been
suspended.
¶76 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
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No. 2017AP1882-D
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