2020 WI 4
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP666-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Terry L. Constant, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent-Cross-
Appellant,
v.
Terry L. Constant,
Respondent-Appellant-Cross-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CONSTANT
OPINION FILED: January 28, 2020
SUBMITTED ON BRIEFS: October 24, 2019
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
HAGEDORN, J. dissents (opinion filed)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-petitioner-cross-respondent, there were
briefs filed by Terry L. Constant, Kenosha.
For the complainant-respondent-cross-appellant, there was a
brief filed by Jonathan E. Hendrix and Office of Lawyers
Regulation, Madison.
2020 WI 4
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP666-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Terry L. Constant, Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant-Respondent-
Cross-Appellant, JAN 28, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Terry L. Constant,
Respondent-Appellant-
Cross-Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Terry L. Constant has appealed a
report and recommendation filed by Referee Dennis J. Flynn,
concluding that Attorney Constant committed eight counts of
professional misconduct and recommending that his license to
practice law in Wisconsin be suspended for five months. Attorney
Constant argues that the referee mistakenly allowed his bank
records into evidence; that the Office of Lawyer Regulation (OLR)
failed to meet its burden of proof as to the eight counts of
No. 2017AP666-D
misconduct; that the referee erred in making a credibility
determination; and that a five-month suspension of his license to
practice law is an excessive sanction. The OLR has filed a cross-
appeal arguing that a five-month suspension is insufficient and
that this court should suspend Attorney Constant's license for at
least one year.
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law. We conclude
that a six-month suspension of Attorney Constant's Wisconsin law
license is an appropriate sanction for the misconduct at issue.
We also find it appropriate to follow our normal custom of imposing
the full costs of this disciplinary proceeding, which are
$13,409.63 as of December 10, 2019, on Attorney Constant.
¶3 Attorney Constant was admitted to practice law in
Wisconsin in 1968 and practices in Kenosha. He has no prior
disciplinary history.
¶4 On April 14, 2017, the OLR filed a complaint alleging
nine counts of misconduct. In 2009, M.B. hired Attorney Constant
to represent her in a personal injury case. In 2010 and 2011,
Attorney Constant disbursed 13 checks from his trust account at
U.S. Bank in connection with M.B.'s claim. Attorney Constant had
not deposited any funds into the trust account for his
representation of M.B. when he wrote the checks.
¶5 In January 2012, Attorney Constant filed a lawsuit on
behalf of M.B. in Kenosha County Circuit Court. In the first half
of 2013, Attorney Constant settled M.B.'s claim for $175,000.
Between June 14 and July 5, 2013, Attorney Constant disbursed six
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No. 2017AP666-D
checks from his client trust account totaling $3,144 in connection
with M.B.'s case. One of the checks was payable to Attorney
Constant in the amount of $1,000. During this time period,
Attorney Constant had not deposited any funds into his trust
account for M.B.'s case.
¶6 On July 9, 2013, Attorney Constant deposited the
$175,000 settlement check into his trust account. He did not
promptly notify M.B. in writing that he had received and deposited
the funds. Attorney Constant's settlement statement showed he was
entitled to $50,000 in attorney's fees and $5,290.93 in costs.
¶7 Between July 11, 2013 and October 10, 2013, Attorney
Constant disbursed $57,300 in attorney fees and $2,028.71 for costs
in the M.B. matter out of funds in his trust account. After these
disbursements, the trust account held $178,359.13, of which
$115,421.29 was attributable to M.B.'s case.
¶8 During November and December of 2013, Attorney Constant
transferred $16,200 from his trust account to his business account
without identifying the client matter. During the same time frame,
Attorney Constant withdrew $4,600 in cash from the trust account
without identifying the purpose or client matter. On December 31,
2013, the trust account had a balance of $86,386.58. It should
have held $115,421.29 in the M.B. matter alone.
¶9 The $175,000 settlement amount was subject to numerous
liens, and Attorney Constant negotiated settlements with the
lienholders so that M.B. would recover a portion of the $175,000.
On January 10, 2014, Attorney Constant disbursed a $21,882.35 trust
account check to the federal government in the M.B. matter. After
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No. 2017AP666-D
issuing this check, the trust account held $70,108.53. Attorney
Constant should have been holding $93,538.94 for the M.B. matter
alone.
¶10 On January 21, 2014, Attorney Constant issued a check
for $40,000 to M.B. in partial payment of the settlement funds.
At that point his trust account should have held $53,538.94 in
remaining funds for M.B., but the entire balance in the trust
account was $19,021.16.
¶11 On January 2, 2015, Attorney Constant's trust account
had a balance of $363.11. On January 13, 2015, Attorney Constant
deposited $800,000 into the trust account which was unrelated to
the M.B. matter. Attorney Constant's trust account records show
that on January 14, 2015 he disbursed $25,000 from the trust
account to himself for reimbursement of costs in the M.B. matter.
¶12 On January 16, 2015, Attorney Constant issued a $10,000
trust account check to M.B. Without the $800,000 deposit a few
days earlier, which was not related to M.B.'s case, the trust
account did not have enough funds to cover the $10,000 check.
¶13 Attorney Constant's trust account records show that on
February 7, 2015, he paid M.B. $4,540.58. As of the date the OLR
filed its complaint, Attorney Constant retained $2,100.65 in
settlement proceeds due to M.B. The record indicates that during
the prosecution of this case, Attorney Constant made full
restitution to M.B.
¶14 On April 22, 2014, Attorney Constant transferred $15,000
in personal funds from his business account to his trust account,
raising the balance of the trust account to $15,759.57.
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No. 2017AP666-D
¶15 On October 29, 2014, Attorney Constant deposited
$9,500.94 into his trust account in connection with the K.C.
matter. After this deposit, the trust account had a balance of
$9,548.98.
¶16 On October 30, 2014, Attorney Constant withdrew $4,300
in attorney fees from his trust account and deposited that amount
into his business account. The remaining balance in the trust
account was then $5,248.98.
¶17 On October 31, 2014, Attorney Constant wrote two trust
account checks, one for $68.30 for a lien in the K.C. case and
$1,467.32 to K.C.
¶18 On November 3, 2014, Attorney Constant transferred
$2,000 from his trust account to his business account. On November
4, 2014, Attorney Constant withdrew $500 in cash from the trust
account. On November 5, 2014, Attorney Constant withdrew $1,500
in cash from the trust account, leaving a balance of $1,248.98.
That same day, U.S. Bank denied payment on Attorney Constant's
October 31, 2014 check in the amount of $1,467.32 due to
insufficient funds. On November 7, 2014, U.S. Bank denied payment
on the check again, as Attorney Constant had not deposited any
additional funds into the trust account.
¶19 After the denial of payment by U.S. Bank, Attorney
Constant wrote a replacement check payable to K.C. in the amount
of $1,467.32. The replacement check cleared the trust account on
November 17, 2014.
¶20 In October and November of 2014, Attorney Constant made
13 cash withdrawals totaling $11,730 from his trust account.
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No. 2017AP666-D
During October and December of 2014, Attorney Constant made eight
electronic transfers from the trust account into his business
account. He had made other electronic transfers from the trust
account to the business account since July 2013.
¶21 Attorney Constant maintained a transaction register for
October and November of 2014, but it did not include accurate
balances following his transactions; the date, payee, and amount
of all disbursements; a $500 transfer from the trust account to
the business account; various checks that were issued; return of
the K.C. checks that caused the overdrafts; the identity of all
clients for whom Attorney Constant disbursed funds; and accurate
dates for the transactions.
¶22 Attorney Constant's client ledgers did not consistently
contain accurate dates, amounts of deposits and disbursements
which he had made on his clients' behalf, nor did it consistently
contain balances of funds remaining in the trust account pertaining
to each client.
¶23 In November 2014, Attorney Constant's bank informed the
OLR of the overdrafts in Attorney Constant's trust account. On
December 9, 2014, the OLR notified Attorney Constant of its
investigation into the overdrafts. During the investigation,
Attorney Constant provided the OLR with trust account and client
records that were sometimes inconsistent with each other and
incomplete. During the investigation, Attorney Constant wrote to
the OLR representing he had not made cash withdrawals from his
trust account.
6
No. 2017AP666-D
¶24 The OLR's complaint alleged the following counts of
misconduct:
Count One: By making disbursements from the trust
account on behalf of M.B. prior to any funds having been
deposited into the client trust account attributable to
her matter, Attorney Constant violated former
SCR 20:1.15(f)(1)b. 1
Count Two: By failing to provide M.B. with written
notice of receipt of the $175,000 settlement proceeds
received in trust during July, 2013; by failing to
promptly deliver and distribute all of the settlement
proceeds to M.B.; and by failing to provide M.B. with a
written settlement statement setting forth a full
accounting regarding the property and final distribution
of the property, Attorney Constant violated former SCR
20:1.15(d)(1) and (d)(2).2
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(f)(1)b. provided:
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.
2 Former SCR 20:1.15(d)(1) and (d)(2) provided:
(1) Upon receiving funds or other property in which
a client has an interest, or in which the lawyer has
received notice that a 3rd party has an interest
identified by a lien, court order, judgment, or
contract, the lawyer shall promptly notify the client or
3rd party in writing. Except as stated in this rule or
7
No. 2017AP666-D
Count Three: By converting, via electronic transfers to
his business account and cash withdrawals, funds he held
in trust in the M.B. matter and other matters, Attorney
Constant violated SCR 20:8.4(c).3
Count Four: By failing to have funds in his trust
account sufficient to cover the amounts recorded as
being held in trust for multiple clients, and by
withdrawing cash, electronically transferring funds to
his business account, and disbursing funds without
sufficient amounts in trust for the related matters,
Attorney Constant violated SCR 20:1.15(b)(1).4
Count Five: By depositing $15,000 of his personal funds
into the trust account on April 22, 2014, Attorney
Constant violated former SCR 20:1.15(b)(3).5
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 SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud, deceit
or misrepresentation."
4 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.
5 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."
8
No. 2017AP666-D
Count Six: By making 13 withdrawals totaling $11,730
from his trust account for cash during October and
November, 2014, Attorney Constant violated former
SCR 20:1.15(e)(4)a.6
Count Seven: By making several non-wire, direct,
electronic transfers of funds from his trust account to
his business account between July 1, 2013 and December
2014, Attorney Constant violated former
SCR 20:1.15(e)(4).7
6 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.'"
7 Former SCR 20:1.15(e)(4) provided:
Prohibited transactions.
a. 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.'
b. No disbursement deposits or disbursement 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 maintains for a particular client.
c. A lawyer shall not make deposits to or
disbursements from a trust account by way of an
Internet transaction.
d. A lawyer shall not authorize a 3rd party to
electronically withdraw funds from a trust
account. A lawyer shall not authorize a 3rd
party to deposit funds into the lawyer's trust
account through a form of electronic deposit that
allows the 3rd party making the deposit to
withdraw the funds without the permission of the
lawyer.
9
No. 2017AP666-D
Count Eight: By failing to maintain the requisite client
trust account records, such as a transaction register,
individual client ledgers, deposit records, disbursement
records, monthly statements and reconciliation reports,
Attorney Constant violated former SCR 20:1.15(f)(1).8
Count Nine: By falsely stating in a letter to the OLR
dated February 15, 2015 that he did not withdraw cash
8 Former SCR 20:1.15(f)(1) provided:
Complete records of a trust account that is a draft
account shall include a transaction register; individual
client ledgers for IOLTA accounts and other pooled trust
accounts; a ledger for account fees and charges, if law
firm funds are held in the account pursuant to sub.
(b)(3); deposit records; disbursement records; monthly
statements; and reconciliation reports, subject to all
of the following:
a. The transaction register shall contain a
chronological record of all account transactions, and
shall include all of the following:
1. the date, source, and amount of all deposits;
2. the date, check or transaction number, payee and
amount of all disbursements, whether by check, wire
transfer, or other means;
3. the date and amount of every other deposit or
deduction of whatever nature;
4. the identity of the client for whom funds were
deposited or disbursed; and
5. the balance in the account after each transaction.
10
No. 2017AP666-D
from his trust account, Attorney Constant violated
SCR 22.03(6);9 via SCR 20:8.4(h).10
¶25 Attorney Constant filed an answer and affirmative
defenses on May 26, 2017. The referee was appointed on June 5,
2017. During the course of the proceeding, the OLR voluntarily
dismissed Count Nine of its complaint. An evidentiary hearing was
held on November 5, 2018. The witnesses at the hearing were
Attorney Constant, M.B., M.B.'s boyfriend, and an OLR
investigator.
¶26 The referee issued his report and recommendation on
February 19, 2019. The referee found that the OLR had proved by
clear, satisfactory, and convincing evidence that Attorney
Constant committed the remaining eight counts of misconduct
alleged in the OLR's complaint. Although the OLR had sought a
two-year suspension of Attorney Constant's Wisconsin law license,
the referee concluded that a five-month suspension was an
appropriate sanction for Attorney Constant's misconduct.
¶27 The referee said that the misconduct at issue here is
serious. He noted the violations of trust account rules were
multiple and occurred over a number of years. The referee pointed
9SCR 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."
SCR 20:8.4(h) provides: "It is professional misconduct for
10
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)."
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No. 2017AP666-D
out that Attorney Constant's area of practice was in the field of
personal injury law, and he said Attorney Constant's failure to
provide written notices to M.B. regarding the receipt of settlement
funds and then not providing an accurate settlement statement at
the conclusion of the case were major violations of the duties
owed to his client.
¶28 The referee also said Attorney Constant's practice of
electronic transfers and multiple cash withdrawals that were not
allocated to a specific client appear to be part of an effort to
convert funds from the client and to conceal Attorney Constant's
wrongdoing by intentionally violating supreme court rules. The
referee said the deposit of Attorney Constant's own funds into his
trust account to avoid an overdraft grossly represented a knowing
and intentional rule violation. Further, the referee said Attorney
Constant took no action to reconcile the differences between his
trust account bank records and his own business records. The
referee noted that in M.B.'s case, these failures occurred
repeatedly over more than two years. The referee said Attorney
Constant's actions and non-actions were consistent with not caring
about the problems in his trust account or not wanting to take
actions to correct those problems.
¶29 The referee went on to say Attorney Constant has avoided
responsibility for his actions throughout the OLR's investigation.
The referee said Attorney Constant consistently blamed others
without any corroboration. Attorney Constant blamed the Quicken
software program he used; he blamed unnamed employees at U.S. Bank
who he claimed gave him incorrect instructions on how to operate
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No. 2017AP666-D
his trust account; he claimed his own trust account and business
bank records should not have been admitted into evidence; and he
excused his misconduct by noting that neither M.B. nor the
lienholders in her case suffered any loss. The referee said this
type of rationalization indicated a lack of insight into the
misconduct and showed that Attorney Constant had no remorse for
his improper actions. The referee said it was critically important
that the seriousness of his wrongdoing be impressed upon Attorney
Constant.
¶30 The referee also found a number of mitigating factors.
The referee noted that Attorney Constant has practiced law in
Wisconsin for over 50 years and has not previously been the subject
of any disciplinary action. The referee also said that Attorney
Constant has brought credit to the legal profession by his many
positive community involvements in the city and county of Kenosha.
In addition, for over ten years Attorney Constant provided pro
bono legal services through Legal Action of Wisconsin. In the
1980s Attorney Constant was a charter member of Kenoshans Against
Sexual Assault, and he also served on the Board of Directors for
the Salvation Army for many years.
¶31 The referee said Attorney Constant brought forward a
basketball analogy of "no harm/no foul" to support his position
that M.B. and all of the lienholders in her case did ultimately
receive all of the money that was due them. The referee said this
attitude was consistent with Attorney Constant's assertion that he
did nothing that constituted a violation of supreme court rules.
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No. 2017AP666-D
¶32 The referee ultimately concluded that a five-month
suspension of Attorney Constant's Wisconsin law license was an
appropriate sanction for his misconduct. In support of his
recommendation, the referee cited In re Disciplinary Proceedings
Against McClure, 2015 WI 25, 361 Wis. 2d 339, 860 N.W.2d 474.
Attorney McClure stipulated to 11 counts of misconduct involving
trust account violations, and various other counts of misconduct.
The referee in that case found Attorney McClure to be generally
remorseful. Attorney McClure fully cooperated with the OLR, and
the OLR did not dispute the fact that Attorney McClure was faced
with a multitude of personal problems during the time period at
issue.
¶33 In addition to a five-month suspension, the referee in
the instant case also recommends that Attorney Constant should be
ordered to attend and successfully complete 12 hours of continuing
legal education (CLE) courses approved in advance by the OLR; at
least six hours of which should be in OLR approved courses relating
to proper trust account management. Further, the referee
recommends that if Attorney Constant desires to resume the practice
of law, he should have his trust account monitored by the OLR for
at least two years. The referee also recommends that Attorney
Constant be ordered to pay the full costs of the proceeding.
¶34 In his appeal, Attorney Constant argues that the OLR
mistakenly allowed his U.S. Bank records into evidence at the
evidentiary hearing because the certification by a U.S. Bank
officer was supported by an insufficient affidavit. He also
asserts that the bank records received into evidence were
14
No. 2017AP666-D
insufficient to meet the OLR's burden of proof. Finally, he
asserts that a five-month suspension of his license to practice
law is excessive. He argues that a public reprimand, or at most,
a 60-day suspension, would be an appropriate sanction.
¶35 Attorney Constant maintains that he returned M.B.'s
entire file to her, whereas M.B. and her boyfriend both testified
that she did not receive her complete file. The referee found the
testimony of M.B. and her boyfriend to be more credible than
Attorney Constant's testimony on this issue. Attorney Constant
argued that his testimony should have been believed. He says the
record contained a statement that M.B. had a criminal record, and
he argues the referee should have made a specific finding of fact
on that point.
¶36 As to the appropriate sanction, Attorney Constant agrees
that the referee engaged in a detailed thoughtful analysis of the
mitigating factors; however, he says even a five-month suspension
is too much and a public reprimand or a sixty-day suspension is
adequate.
¶37 The OLR responds to Attorney Constant's appeal by
arguing that the referee correctly admitted the certified U.S.
Bank records into evidence. The OLR notes Wisconsin allows self-
authenticating documents to be admitted into evidence based on
circumstances, and pursuant to Wis. Stat. § 909.02(12)(a),
"extrinsic evidence of authenticity as a condition precedent to
admissibility is not required" for certified domestic records of
regularly conducted activity. The referee notes that at the
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No. 2017AP666-D
evidentiary hearing, the U.S. Bank certified records were
accompanied by an affidavit that included the following language:
The documents delivered with this Affidavit in response
to the Subpoena represent true and correct copies of
documents which are in our files. These records were
prepared in the ordinary course of business at or near
the time of the act, condition or event.
¶38 The OLR says Wis. Stat. § 909.02(12) does not require
the person certifying the record to state the source of their
knowledge. The OLR says the U.S. Bank certification met the
statutory requirements, and the referee properly admitted the bank
documents into the record.
¶39 The OLR says this court should affirm the referee's
finding that Attorney Constant did not give M.B. her entire client
file. The OLR notes when testimony is conflicting, the referee is
the ultimate arbiter of witness credibility. See In re
Disciplinary Proceedings Against Pump, 120 Wis. 2d 422, 426-27,
355 N.W.2d 248 (1984).
¶40 In its cross-appeal, the OLR argues that a five-month
suspension is inadequate due to the nature and severity of Attorney
Constant's misconduct. The OLR advocates for a suspension of a
least one year.
¶41 The OLR argues that Attorney Constant's trust account
violations were systemic and intentional. It also says Attorney
Constant's inability to identify whose funds he used for expenses
and disbursement from his trust account demonstrates that the true
extent of the trust account misconduct is unknown. The OLR argues
that in addition to a suspension of at least one year, this court
16
No. 2017AP666-D
should follow the referee's recommendation that Attorney Constant
have his trust account monitored for two years after reinstatement.
¶42 A referee's findings of fact are affirmed unless clearly
erroneous. Conclusions of law are reviewed de novo. See In re
Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction
it sees fit, regardless of the referee's recommendation. See In
re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
¶43 From our review of the record, we find there has been no
showing that any of the referee's findings of fact are clearly
erroneous. Accordingly, we adopt them. We further agree with the
referee's conclusions of law that Attorney Constant violated the
supreme court rules set forth above. We specifically find that
Attorney Constant's challenge to the admissibility of his U.S.
Bank records is meritless, and we find no basis to disturb the
referee's credibility finding with respect to whether Attorney
Constant returned M.B.'s entire client file.
¶44 Turning to the appropriate level of discipline, we
conclude that a six-month suspension of Attorney Constant's law
license, which will require him to file a formal petition for
reinstatement, is appropriate.
¶45 Although no two disciplinary proceedings are identical,
we agree with the referee that this case is somewhat similar to
McClure. However, whereas Attorney McClure fully cooperated with
the OLR and entered into a stipulation whereby he admitted
virtually all of the facts alleged in the complaint, Attorney
17
No. 2017AP666-D
Constant provided the OLR with incomplete and inconsistent trust
account and client records, and he represented that he had not
made cash withdrawals from his trust account when in fact he had
done so. In addition, unlike Attorney McClure, who the referee
found to be genuinely remorseful and was dealing with a variety of
personal problems during the time the misconduct occurred,
Attorney Constant has consistently maintained that he did nothing
wrong. Imposing a six-month suspension, which will require
Attorney Constant to petition for reinstatement, will provide
assurance that he can be safely recommended to the profession, the
courts, and the public as a person who is fit and capable to
practice law in this state.
¶46 We also agree with the referee that in the event Attorney
Constant's license is reinstated, he should be required to
successfully complete 12 hours of CLE courses approved in advance
by the OLR, at least six of which should relate to properly
managing a trust account and he should have his trust account
monitored by the OLR for at least two years. As is our usual
custom, we find it appropriate to assess the full costs of this
proceeding against Attorney Constant. Since the OLR states that
Attorney Constant made full restitution to M.B., we do not impose
a restitution award.
¶47 IT IS ORDERED that the license of Terry L. Constant to
practice law in Wisconsin is suspended for a period of six months,
effective March 10, 2020.
¶48 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, Terry
18
No. 2017AP666-D
L. Constant shall be required to successfully complete 12 hours of
continuing legal education courses approved in advance by the
Office of Lawyer Regulation, at least six of which hours shall be
in courses relating to properly managing a trust account.
¶49 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, Terry
L. Constant shall have his trust account monitored by the Office
of Lawyer Regulation for a period of two years.
¶50 IT IS FURTHER ORDERED that Terry L. Constant 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.
¶51 IT IS FURTHER ORDERED that within 60 days of the date of
this order, Terry L. Constant shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $13,409.63 as
of December 10, 2019.
¶52 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4).
19
No. 2017AP666-D.bh
¶53 BRIAN HAGEDORN, J. (dissenting). I would adopt the
referee's recommendation of a five-month license suspension rather
than the six-month suspension imposed by the majority.
Accordingly, I respectfully dissent.
1
No. 2017AP666-D.bh
1
Office of Lawyer Regulation v. Terry L. Constant
Combined Opinion