2020 WI 88
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1162-D
COMPLETE TITLE: In the Matter of Disciplinary Proceeding Against
Cole J. White, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Cole J. White,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST WHITE
OPINION FILED: November 25, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 88
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1162-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceeding
Against Cole J. White, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, NOV 25, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Cole J. White,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On December 19, 2019, Referee Robert E.
Kinney filed a report recommending that Attorney Cole J. White
be declared in default, concluding that Attorney White engaged
in 44 counts of misconduct in 13 separate client matters
warranting a two-year suspension of his license to practice law
in Wisconsin, and recommending that Attorney White be ordered to
No. 2019AP1162-D
make restitution to various clients1 and that this court impose
the full costs of this proceeding, which are $2,514.74 as of
January 7, 2020, on Attorney White.
¶2 We conclude that the referee's findings of fact
pertaining to Attorney White's misconduct are supported by
satisfactory and convincing evidence in the record. Attorney
White failed to present a defense despite being given multiple
opportunities to do so, and we declare him to be in default. We
find that the egregiousness and extent of Attorney White's
misconduct warrants a four-year suspension of his license rather
than the two years recommended by the referee. In addition, we
agree with the referee that Attorney White should be required to
make restitution to various clients and he should be assessed
the full costs of the proceeding.
¶3 Attorney White was admitted to practice law in
Wisconsin in 2013. He practiced in Green Bay. In 2019 his
Wisconsin law license was suspended, effective October 4, 2019,
for a period of 15 months for 27 counts of professional
misconduct arising out of four client matters. The misconduct
included failing to hold advanced fees in trust; failing to
respond to requests from opposing counsel; failing to take
action to prosecute his clients' case; failing to respond to
discovery requests; making false statements to his client about
In response to an order to show cause issued by this
1
court, the Office of Lawyer Regulation (OLR) recommends that
Attorney White be required to make restitution to an additional
client.
2
No. 2019AP1162-D
the status of a case and the conduct of the opposing parties;
fabricating an email to the OLR; charging an unreasonable fee;
and failing to return a client's file upon termination of the
representation. In re Disciplinary Proceedings Against White,
2019 WI 86, 388 Wis. 2d 277, 932 N.W.2d 410. In addition,
Attorney White's law license is administratively suspended for
failure to pay state bar dues and failure to provide a trust
account certification.
¶4 On June 27, 2019, the OLR filed its 44 count complaint
against Attorney White. On July 23, 2019, Attorney White,
through his counsel, Attorney Jevon Jaconi, filed a one-page
answer. The referee was appointed on October 18, 2019. After
filing the answer, Attorney White failed to participate in any
of the OLR proceedings, including failing to appear for a
deposition that had been noticed at Attorney Jaconi's office for
November 27, 2019.
¶5 On December 2, 2019, the OLR filed a notice of motion
and motion to strike Attorney White's answer and a motion for
default judgment. A hearing on the motion was held before the
referee on December 3, 2019. The referee had previously signed
an order for Attorney White to appear at the proceeding, but he
did not in fact appear.
¶6 At the December 3, 2019 hearing, the referee granted
Attorney Jaconi's motion to withdraw as counsel for Attorney
White. Attorney Jaconi stated at the hearing that Attorney
White had "essentially disappeared" and had not been heard from
since early October, around the time his license suspension went
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No. 2019AP1162-D
into effect. Attorney Jaconi stated that Attorney White had
cleared out his office and left a moving company with an unpaid
bill. He further stated that all of Attorney White's telephone
and email accounts were non-functional. Attorney Jaconi stated
that he was not aware of Attorney White's current whereabouts
but had heard from one source that he had gone to California and
from another source that he had gone to Washington, D.C.
Attorney Jaconi testified he heard that Attorney White's brother
told some circuit court judges that Attorney White had committed
suicide. There is no indication that this is true.
¶7 The referee then turned to the OLR's motion to strike
Attorney White's answer and its motion for default judgment and
granted both. The referee said he had "never seen anything
quite like" the OLR's complaint against Attorney White and, "the
attitude and statements that are cited in the complaint are not
only stunning, but they show a degree of disrespect for clients
and for the system that I've never encountered . . .." The
referee found that Attorney White's conduct was egregious and
that his abruptly leaving the area, without regard to his
clients and without advising the OLR, was an extraordinary
situation. The referee said, "to leave everyone in a lurch, as
Attorney White has done, is unfathomable. Anyone would have to
say how could any professional conduct himself in this way."
¶8 The referee said it was clear the public needed to be
protected from Attorney White and for that reason he recommended
that this court enter default judgment against Attorney White.
The referee found that there was an adequate factual basis for
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No. 2019AP1162-D
each of the 44 counts of misconduct alleged in the OLR's
complaint and that, by default, Attorney White was found to have
committed all of the alleged violations. The OLR had asked for
a two-year license suspension, and the referee concluded that
was an appropriate sanction for Attorney White's misconduct.
The referee recommended that Attorney White be required to pay
restitution to a number of clients and that he be required to
pay the full costs of this proceeding.
¶9 The allegations of the OLR's complaint will be briefly
summarized here. In 2017, K.C. hired Attorney White to
represent him in a case in which K.C. had been charged with
resisting/obstructing an officer; possession of THC, 2nd or
subsequent offense; possession of cocaine, 2nd or subsequent
offense; and possession of drug paraphernalia. K.C. paid
Attorney White $2,100. The funds were paid in contemplation of
future services. Attorney White did not deposit the funds into
his trust account. Attorney White appeared with K.C. for two
court appearances, after which K.C. attempted to advise Attorney
White that he no longer needed his services and he wanted a
refund of any unearned fees. Attorney White failed to respond
to K.C. and he failed to respond to the OLR's request for
information after K.C. filed a grievance.
¶10 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
K.C.:
Count 1: By failing to place advanced fees into his
trust account, without evidence of an intention to
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No. 2019AP1162-D
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).2
Count 2: By willfully failing to timely and fully
respond to K.C.'s grievance, Attorney White violated
SCR 22.03(2)3 and SCR 22.03(6),4 enforceable via
SCR 20:8.4(h).5
2 SCR 20:1.5(f) provides:
Except as provided in SCR 20:1.5(g), unearned
fees and funds advanced by a client or 3rd party for
payment of fees shall be held in trust until earned by
the lawyer, and withdrawn pursuant to SCR 20:1.5(h).
Funds advanced by a client or 3rd party for payment of
costs shall be held in trust until the costs are
incurred.
3 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.
4 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."
5 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)."
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No. 2019AP1162-D
¶11 The next client matter detailed in the OLR's complaint
involves Attorney White's representation of J.B., who hired
Attorney White in 2017 to represent him in three criminal
matters. J.B. and his girlfriend, S.T., paid Attorney White
$3,750. The funds were paid in contemplation of future
services. Attorney White failed to deposit the funds into his
trust account. Attorney White responded to a text message from
S.T. by using profanity. After that exchange, S.T. and J.B.
acted to terminate Attorney White's representation, which was
followed by Attorney White's stipulated withdrawal from the
cases.
¶12 J.B. requested an itemized billing statement for the
work Attorney White had performed. Attorney White refused to
provide the itemization and told J.B. not to contact him again.
J.B. pursued fee arbitration through the State Bar of Wisconsin,
but Attorney White failed to respond to the State Bar, which
resulted in dismissal of the arbitration request. After J.B.
filed a grievance against Attorney White, Attorney White told
the OLR investigator he would not participate in the process
because he believed the investigation was the result of racial
bias. After this court issued an order to show cause why
Attorney White's license to practice law should not be
temporarily suspended as a result of his willful failure to
cooperate with the OLR's investigation, Attorney White provided
the OLR with a response to J.B.'s grievance. This court then
granted the OLR's request to withdraw its motion for temporary
license suspension.
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No. 2019AP1162-D
¶13 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
J.B.:
Count 3: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 4: By failing to respond to J.B.'s requests for
an accounting, Attorney White violated
SCR 20:1.5(b)(3).6
Count 5: By using vulgar and abusive language towards
S.T., who was communicating with Attorney White on
J.B.'s behalf regarding his case, Attorney White
violated SCR 40.15,7 enforceable via SCR 20:8.4(g).8
Count 6: By willfully failing to timely and fully
respond to J.B.'s grievance, Attorney White violated
SCR 22.03(2), and SCR 22.03(6), enforceable via
SCR 20:8.4(h).
¶14 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of J.D. J.D.'s father,
J.B., hired Attorney White to represent J.D. in an appeal
arising out of two criminal matters in Milwaukee County. J.B.
paid Attorney White an advanced fee of $2,400. Attorney White
did not provide a written communication regarding the
6SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
7SCR 40.15 provides: "I will abstain from all offensive
personality and advance no fact prejudicial to the honor or
reputation of a party or witness, unless required by the justice
of the cause with which I am charged; . . . "
8SCR 20:8.4(g) provides: "It is professional misconduct
for a lawyer to violate the attorney's oath."
8
No. 2019AP1162-D
representation, nor did he deposit the fees into his trust
account. Attorney White was subsequently asked to provide a
refund of fees paid, but he refused to comply with the request.
He also failed to cooperate with the OLR's investigation of a
grievance until he was served with an order to show cause from
this court.
¶15 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
J.D.:
Count 7: By failing to provide a written
communication to J.D. and/or J.B. defining the terms
and scope of the representation, and the purpose and
effect of the $2,400 advanced fee paid by J.B.,
Attorney White violated SCR 20:1.5(b)(1) and (2).9
Count 8: By failing to place advanced fees into his
trust account, without evidence of an intention to
9 SCR 20:1.5(b)(1) and (2) provides:
(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall be communicated to the
client in writing, before or within a reasonable time
after commencing the representation, except when the
lawyer will charge a regularly represented client on
the same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including attorney's
fees, will be $1000 or less, the communication may be
oral or in writing. Any changes in the basis or rate
of the fee or expenses shall also be communicated in
writing to the client.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
9
No. 2019AP1162-D
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 9: By failing to advance J.D.'s interest in the
matter of an appeal or postconviction motion, Attorney
White violated SCR 20:1.3.10
Count 10: By falsely stating to F.D., J.D's then
wife, that he had performed substantial work on J.D.'s
case, including requesting transcripts and preparing
documents for J.D.'s appeal, and by falsely stating to
F.D. that he had five attorneys working on J.D.'s
case, Attorney White violated SCR 20:8.4(c).11
Count 11: By failing to refund any unearned fees to
J.D. and/or J.B. after having failed to advance J.D.'s
case, thereby rendering at least a portion of the
advanced fee unearned, Attorney White violated
SCR 20:1.16(d).12
Count 12: By willfully failing to timely and fully
respond to the OLR in the J.D. and J.B. grievance
matter, Attorney White violated SCR 22.03(2) and
SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶16 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of D.E., who hired
10 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
11 SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
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. 2019AP1162-D
Attorney White to represent him with respect to a bench warrant
that had been issued against him in Dodge County and with
respect to a civil claim against Madison Metro Transit.
Attorney White received two payments of $300 from D.E. and
agreed to a contingent fee arrangement regarding the civil
claim. Attorney White did not have a written fee agreement with
D.E., nor did he deposit the fees paid into his trust account
even though the funds paid were in contemplation of future
services.
¶17 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
D.E.:
Count 13: To the extent that Attorney White's oral
fee agreement with D.E. contained a contingent fee
component, Attorney White violated SCR 20:1.5(c).13
13 SCR 20:1.5(c) provides:
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by par.
(d) or other law. A contingent fee agreement shall be
in a writing signed by the client, and shall state the
method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the
recovery; and whether such expenses are to be deducted
before or after the contingent fee is calculated. The
agreement must clearly notify the client of any
expenses for which the client will be liable whether
or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement
stating the outcome of the matter and if there is a
recovery, showing the remittance to the client and the
method of its determination.
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No. 2019AP1162-D
Count 14: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
¶18 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of K.G., who hired
Attorney White with respect to a civil rights claim against the
Village of Elm Grove Police Department. Attorney White advised
K.G. by email that he had reviewed documents relating to his
potential civil rights claim and that he believed K.G. likely
had a basis for a civil lawsuit under 42 U.S.C. § 1983. K.G.
paid Attorney White $3,000 toward attorney fees, believing that
Attorney White had agreed to file a civil suit on his behalf.
Attorney White did not have a written fee agreement with K.G.,
nor did he deposit the fees paid into his trust account. K.G.
subsequently emailed Attorney White to request a refund of the
$3,000 and an accounting of work that had been performed.
Attorney White failed to provide an accounting or a refund.
¶19 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
K.G.:
Count 15: By failing to provide a written
communication to K.G. defining the terms and scope of
the representation and the purpose and effect of the
advanced portion of the $3,000 fee paid by K.G.,
Attorney White violated SCR 20:1.5(b)(1) and (2).
Count 16: By failing to place any of the $3,000 fee
paid by K.G., at least a portion of which was an
advanced fee, into his trust account, without evidence
of an intention to follow the SCR 20:1.5(g)
alternative, Attorney White violated SCR 20:1.5(f).
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No. 2019AP1162-D
Count 17: By failing to refund any unearned fees to
K.G., Attorney White violated SCR 20:1.16(d).
¶20 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of C.C., who hired
Attorney White to represent her son in a postconviction juvenile
criminal matter. C.C. paid Attorney White $3,000 as an advanced
fee. Attorney White did not have a written fee agreement with
C.C. Attorney White told C.C. he would take action to attempt
to have her son's guilty plea withdrawn. Although Attorney
White represented to C.C. that he had submitted petitions in the
case, in fact he had not made any filings. C.C. subsequently
advised Attorney White she was terminating his representation
and asked for a full refund of fees. She then filed a grievance
with the OLR. Attorney White responded to the grievance by
saying he never represented C.C. or her son and that he did not
take on juvenile matters.
¶21 In March of 2018, the State Bar of Wisconsin notified
Attorney White that the Wisconsin Lawyers' Fund for Client
Protection (the Fund) had approved payment of $3,000 to C.C.
with the explanation that money had been "lost because of
[White's] dishonest conduct."
¶22 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
C.C.:
Count 18: By failing to provide a written
communication to C.C. defining the terms and scope of
the representation and the purpose and effect of the
$3,000 advanced fee paid by C.C., Attorney White
violated SCR 20:1.5(b)(1) and (2).
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No. 2019AP1162-D
Count 19: By failing to file a petition to withdraw
C.C.'s son's plea, or to take steps to advance C.C.'s
son's matter, Attorney White violated SCR 20:1.3.
Count 20: By falsely stating to C.C. that he
requested transcripts, filed petitions, and refiled
petitions on C.C.'s son's behalf, Attorney White
violated SCR 20:8.4(c).
Count 21: By failing to refund any unearned fees to
C.C. after having failed to perform any work on C.C.'s
son's matter, Attorney White violated SCR 20:1.16(d).
Count 22: By misrepresenting to the OLR that he never
represented C.C. or her son, Attorney White violated
SCR 22.03(6), enforceable via SCR 20:8.4(h).
¶23 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of J.J., who hired
Attorney White to represent him in a divorce matter and a
criminal matter. J.J. paid Attorney White $18,000.
¶24 The OLR's complaint alleged the following count of
misconduct with respect to Attorney White's representation of
J.J.:
Count 23: By failing to place and hold advanced fees
in his trust account until earned, without evidence of
an intent to follow the alternative stated in former
and current rules, Attorney White violated former
SCR 20:1.15(b)(4),14 and current SCR 20:1.5(f).
14Effective 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).
Former SCR 20:1.15(b)(4) provides:
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
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No. 2019AP1162-D
¶25 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of W.M., who filed a
Fair Housing Discrimination complaint against his landlord. The
Equal Rights Division (ERD) found probable cause to believe that
the landlord had discriminated against W.M. because of race,
color, and national origin under the Wisconsin Open Housing Law.
W.M. hired Attorney White to represent him with respect to
claims of eviction allegedly based on race, color, and national
origin and paid Attorney White $750 for his representation.
Although the fees were paid in contemplation of future services,
Attorney White did not provide W.M. with a written fee agreement
nor did he place the $750 into his trust account.
¶26 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
W.M.:
Count 24: By failing to file a notice of appearance
or otherwise advance W.M.'s interests in the ERD
matter, Attorney White violated SCR 20:1.3.
Count 25: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 26: By falsely stating to W.M. that he sent a
letter notifying ERD of his representation, Attorney
White violated SCR 20:8.4(c).
Count 27: By failing to refund any unearned fees to
W.M. after having failed to perform any work on W.M.'s
matter, Attorney White violated SCR 20:1.16(d).
payment of costs shall be held in trust until the
costs are incurred.
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No. 2019AP1162-D
Count 28: By misrepresenting to the OLR that he
terminated his representation of W.M. after one week
and that he had refunded the $750 fee to W.M.,
Attorney White violated SCR 22.03(6), enforceable via
SCR 20:8.4(h).
¶27 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of P.W. According to
an engagement letter and fee agreement, P.W. would pay Attorney
White a flat fee of $7,500, which included representation "up
and through trial if necessary." P.W. paid Attorney White
$2,000 and agreed to pay him the remainder of the balance
through monthly payments of at least $400. P.W. through his
girlfriend, S.A., made $400 payments to Attorney White by check
on four occasions, although P.W. or S.A. later placed a stop
payment on the final check. Attorney White did not deposit the
fees paid into his trust account although they were paid in
contemplation of future services.
¶28 Attorney White made several court appearances on
behalf of P.W. P.W. appeared in court for his final pretrial
conference, but Attorney White did not appear. The circuit
court noted that Attorney White's license had been suspended
and, as a result, he could not provide legal representation to
P.W. The court ordered Attorney White withdrawn from the case
and referred P.W. to the state public defender's office to be
evaluated for representation.
¶29 After P.W. filed a grievance with the OLR against
Attorney White, Attorney White told the OLR that P.W. told him
he had hired another attorney. In February of 2018, Attorney
Jaconi forwarded to the OLR a profanity laden email from
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No. 2019AP1162-D
Attorney White regarding three grievance investigations,
including P.W.'s grievance. Among other things, Attorney
White's email said, "I plan on doing nothing until [OLR
investigator] is lying in her own blood. Please feel free to
tell her, I am this close to becoming violent."
¶30 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
P.W.:
Count 29: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 30: By using threatening, vulgar, and abusive
language directed towards the OLR staff, Attorney
White violated SCR 40.15, enforceable via
SCR 20:8.4(g).
¶31 The next client matter detailed in the OLR's complaint
arose out of Attorney White's representation of R.S., who hired
White Law Offices LLC to represent M.A. in a medical malpractice
suit and to represent R.S. with respect to a probate matter
involving his mother's estate. The engagement letter and fee
agreement signed by R.S. provided that R.S. agreed to pay White
Law Offices LLC a $5,000 flat fee plus a 25 percent contingent
fee on any settlement or award in the medical malpractice suit.
Attorney White signed the engagement letter and fee agreement on
behalf of White Law Offices LLC.
¶32 Jonathan Gigot, an attorney formerly associated with
Attorney White's firm was the attorney assigned to handle these
cases. The engagement letter and fee agreement stated that R.S.
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No. 2019AP1162-D
and M.A. gave "informed consent after Jonathan Gigot has
proposed the course of conduct, has communicated adequate
information, and has explained all material risks of and
reasonable available alternatives to the proposed course of
conduct."
¶33 R.S. paid Attorney White $5,000, which was
characterized by the engagement letter and fee agreement as "in
the form of a Firm Credit, secured by Cole White." The firm
credit resulted from the sale of a camper vehicle from R.S. to
Attorney White, with the Bill of Sale listing a total purchase
price for the camper of $6,700, of which $5,000 was a legal fee
credit and $1,700 was paid in cash. Neither R.S. nor M.A.
provided informed consent, in writing and signed, as to Attorney
White's role in the camper transaction. Attorney White did not
advise them in writing of the desirability of seeking
independent legal counsel on the transaction.
¶34 Attorney Gigot subsequently left White Law Offices
LLC, at which time he explained to R.S. and M.A. that he
believed their cases were too much for a one- or two-person law
firm to handle and advised them to seek out a larger law firm to
handle their matters. Attorney White offered to return the
camper vehicle to R.S. in exchange for a return of the $1,700
paid by Attorney White plus all maintenance, upkeep, and
everything else that went into it. Attorney White made no other
effort to refund any unearned fees to R.S. or M.A.
¶35 After R.S. filed a grievance with the OLR, Attorney
White told the OLR at various times: that he told R.S. and M.A.
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No. 2019AP1162-D
to speak to a different firm about the camper transaction; that
he did not advise them of the desirability of seeking the advice
of independent legal counsel about the camper transaction; and
that R.S. and M.A. did provide a signed written informed
consent, but Attorney White was not able to produce it.
¶36 Attorney White made profane Instagram comments
directed at R.S. including, "keep fucking with me [R.]. I
promise you'll live to regret it. I'm keeping a tab on everyone
who's crossed me, and the bill is going to come due soon."
Attorney White also stated in an Instagram comment directed to
R.S., "you are such an obsessed, pathetic loser."
¶37 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
R.S. and M.A.:
Count 31: By obtaining the camper vehicle via a
business transaction with his client(s), without
providing required written advice or obtaining
informed written consent, Attorney White violated
SCR 20:1.8(a)(2) and (3).15
15 SCR 20:1.8(a)(2) and (3) provides:
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(2) the client is advised in writing of the
desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal
counsel on the transaction; and
(3) the client gives informed consent, in a
writing signed by the client, to the essential terms
of the transaction and the lawyer's role in the
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No. 2019AP1162-D
Count 32: By failing to return any unearned portion
of the net advanced fee of $5,000, Attorney White
violated SCR 20:1.16(d).
Count 33: By using threatening, vulgar, and abusive
language towards R.S., Attorney White violated
SCR 40.15, enforceable via SCR 20:8.4(g).
¶38 The next client matter detailed in the OLR's complaint
involved Attorney White's representation of D.N., who hired
Attorney White to represent him in an Oconto County case. The
engagement letter and fee agreement signed by D.N. provided that
he would pay Attorney White a flat fee of $10,800. D.N. paid
Attorney White $10,800 and made an additional $40 payment.
Although the funds paid were in contemplation of future
services, Attorney White did not place the advanced fees into
his trust account.
¶39 Attorney White entered an appearance in D.N.'s case on
February 12, 2018 and withdrew on March 22, 2018. On February
20, 2018, Attorney White met with D.N. to review discovery.
D.N. asked Attorney White about any disciplinary complaints that
were pending against him at that time. Attorney White told D.N.
that any disciplinary complaints had been resolved and there
were no complaints currently pending. This was a false
statement.
¶40 On March 23, 2018, D.N. requested a full refund of the
$10,800 he had paid Attorney White. Attorney White did not
provide D.N. with a closing letter or accounting after his
transaction, including whether the lawyer is
representing the client in the transaction.
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No. 2019AP1162-D
representation was terminated, nor did he refund any fees.
Attorney White did not earn the $10,800 he was paid.
¶41 After D.N. filed a grievance with the OLR, Attorney
White told the OLR he had completed "total trial prep" for the
case, but he provided no documentation to support this claim.
Attorney White accused D.N. of sending "a threatening lie filled
text message that shows OLR influenced his behavior and decision
making." He also accused D.N. of using "racially charged
language" on the phone. In fact, D.N.'s text messages to
Attorney White did not contain any threatening language.
¶42 On October 9, 2018, the Fund approved payment of
$10,840 to D.N. because the funds had been, "lost because of
[White's] dishonest conduct."
¶43 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
D.N.:
Count 34: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 35: By falsely stating to D.N. that he had no
pending disciplinary matters, Attorney White violated
SCR 20:8.4(c).
Count 36: By failing to refund the unearned portion
of D.N.'s fees upon termination of the representation,
and failing to provide D.N. an accounting, Attorney
White violated SCR 20:1.16(d).
¶44 The next client matter detailed in the OLR's complaint
alleged four counts of misconduct arising out of Attorney
White's representation of C.T., who hired him to represent her
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No. 2019AP1162-D
on a petition to obtain court approval to move from Wisconsin to
Puerto Rico with her minor children. She shared custody of the
children with her ex-husband. C.T. paid Attorney White $1,500
to "cover the drafting of a stipulation and notice to your ex-
husband for the purposes of moving the children." The
engagement letter and fee agreement provided that if the ex-
husband agreed to the stipulation, the matter would be
concluded, but if he did not agree, C.T. would pay an additional
$2,000 to Attorney White to undertake additional proceedings
relating to the custody of the children. Although the funds
paid by C.T. were paid in contemplation of future services,
making them advanced fees, Attorney White did not place the
money in his trust account.
¶45 On July 18, 2017, Attorney White advised C.T. that he
had filed the notice of her move with the circuit court and the
ex-husband had failed to respond. At that time, Attorney White
had not in fact filed anything in C.T.'s case. On September 21,
2017, Attorney White advised C.T. that there had been a hearing
that morning in which the court granted his request for a
default and that C.T. was free to move. Attorney White did not
provide any documentation to C.T. relating to any hearing or her
ability to move with the children. C.T. subsequently contacted
the circuit court to obtain records regarding the default
judgment and discovered nothing had ever been filed with the
court and there had been no hearing or default judgment entered.
¶46 After C.T. filed a grievance with the OLR, Attorney
White denied sending communications to C.T. He also told the
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No. 2019AP1162-D
OLR he had no recollection of C.T.'s case and that he had
limited recollection of any matters from June 2017 through the
summer of 2018 due to mental health treatment.
¶47 On October 9, 2018, the State Bar of Wisconsin
notified Attorney White that the Fund had approved payment of
$1,500 to C.T. because the funds had been "lost because of
[White's] dishonest conduct."
¶48 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
C.T.:
Count 37: By failing to place advanced fees in his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 38: By failing to act in furtherance of C.T.'s
interests in lawfully moving with her minor children,
Attorney White violated SCR 20:1.3.
Count 39: By falsely stating to C.T. that he had
filed a notice with the court and that he had obtained
a default judgment in C.T.'s favor, Attorney White
violated SCR 20:8.4(c).
Count 40: By failing to refund any unearned fees to
C.T. after having failed to advance C.T.'s case,
Attorney White violated SCR 20:1.16(d).
¶49 The final matter detailed in the OLR's complaint arose
out of Attorney White's representation of F.T., who hired
Attorney White to represent him and his wife (the T.s) in a real
estate contract dispute regarding the release of an earnest
money deposit of $17,000 relating to the purchase of property in
Puerto Rico. There was no fee agreement to define or limit the
scope of Attorney White's representation. F.T. paid Attorney
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No. 2019AP1162-D
White a $1,000 advanced fee, which Attorney White did not place
in his trust account.
¶50 On July 30, 2017, Fox Communities Credit Union
returned the $17,000 earnest money payment to the T.s from
escrow. On December 6, 2017, the sellers of the property in
Puerto Rico demanded that the T.s replace the $17,000 to escrow,
and the T.s bank placed a hold on the $17,000 earnest money
deposit as a result of the dispute.
¶51 By correspondence dated February 22, 2018, counsel for
the sellers of the property wrote to the T.s requesting return
of the earnest money deposit and advising that if the T.s did
not respond within 10 days the sellers intended to initiate
litigation. On February 27, 2018, F.T. contacted Attorney White
about the February 22, 2018 letter and asked Attorney White to
meet to discuss the next step. Attorney White agreed to meet.
¶52 On March 30, 2018, Attorney White emailed F.T.
advising that he had sent notices and a denial of claim relating
to the earnest money deposit issue and that he would try to
contact them again regarding the status of the matter.
¶53 On March 31, 2018, the T.s were served with a lawsuit
by the sellers of the Puerto Rico property. F.T. contacted
Attorney White about the lawsuit. Attorney White had not been
aware of it.
¶54 On April 3, 2018, the T.s terminated Attorney White's
representation and asked to have their file returned. Upon
receiving their file, the T.s discovered that Attorney White had
not prepared or sent anything on their behalf in response to the
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No. 2019AP1162-D
February 22, 2018 letter and had not attempted any contact with
the sellers' attorney.
¶55 After the T.s filed a grievance against Attorney White
with the OLR, Attorney White told the OLR he did not represent
the T.s with respect to the sellers' demand as outlined in the
February 22, 2018 letter. Attorney White also questioned the
veracity of the emails between himself and F.T., saying,
"Bullshit. That's the totality of my response . . . I got them
their 17k back. You people really are fucking unbelievable.
Don't message me with any of these bullshit liars anymore."
¶56 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
the T.s:
Count 41: By failing to place advanced fees into his
trust account, without evidence of an intention to
follow the SCR 20:1.5(g) alternative, Attorney White
violated SCR 20:1.5(f).
Count 42: By failing to communicate the scope of the
representation either orally or in writing, Attorney
White violated SCR 20:1.5(b)(1).
Count 43: By failing to respond to the sellers'
demand for the return of the $17,000 earnest deposit,
Attorney White violated SCR 20:1.3.
Count 44: By falsely stating to F.T. that he prepared
and/or filed notices and a denial of claim, Attorney
White violated SCR 20:8.4(c).
¶57 The OLR requested, and the referee agreed, that
Attorney White should be required to make restitution to the
following clients in the following amounts:
• In the J.D. matter, to J.B. in the amount of $2,400;
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No. 2019AP1162-D
• In the K.G. matter, to the Fund in the amount of
$3,000, as reimbursement the Fund paid to K.G.;
• In the C.C. matter, to the Fund in the amount of the
$3,000, as reimbursement the Fund paid to C.C.;
• In the W.M. matter, to W.M. in the amount of $750;
• In the R.S. matter, to R.S. in the amount of $5,000;
• In the D.N. matter, to the Fund in the amount of the
$10,840, as reimbursement the Fund paid to D.N.;
• In the C.T. matter, to the Fund in the amount of the
$1,500, as reimbursement the Fund paid to C.T.
¶58 Attorney White has not filed an appeal from the
referee's recommendation. Accordingly, our review proceeds
pursuant to SCR 22.17(2). On September 17, 2020, this court
issued an order directing the parties to explain why Attorney
White should not be ordered to pay restitution to all clients.
Attorney White did not respond. The OLR responded on October 5,
2020. It said that, in addition to those clients mentioned in
the referee's report, Attorney White should also be required to
make restitution to J.B. and S.T. in the amount of $3,750, less
any amounts Attorney White can prove he earned.
¶59 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.
26
No. 2019AP1162-D
¶60 We agree with the referee that Attorney White should
be declared in default. Although Attorney White was given
notice of the hearing on the motion for a default judgment, he
failed to appear or present a defense.
¶61 We also agree with the referee that the allegations in
the OLR's complaint have been established and that Attorney
White engaged in all of the acts of the misconduct alleged in
the complaint.
¶62 As to the sanction, after careful review of the
matter, we conclude that a two-year suspension is an inadequate
sanction for Attorney White's misconduct. As noted, in the
previous disciplinary action, Attorney White apparently
commenced his solo law practice shortly after graduating from
law school and almost immediately got himself into trouble due
to his apparent disdain for doing the necessary research or work
to perform as a capable advocate for his clients. In the
previous disciplinary matter, Attorney White was found to have
committed 27 counts of professional misconduct in his handling
of four client matters. In this case, he was found to have
committed 44 counts of misconduct involving 13 separate clients.
He showed an utter lack of regard for his clients, and when
called to account for his actions he lashed out at both the
clients and the OLR investigators with profane comments and
threats of physical violence.
¶63 Although no two disciplinary matters are precisely
alike, we find that the misconduct at issue here is somewhat
analogous to that presented in In re Disciplinary Proceedings
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No. 2019AP1162-D
Against Hicks, 2012 WI 101, 343 Wis. 2d 411, 816 N.W.2d 316. In
Hicks, we imposed a four-year suspension as discipline
reciprocal to that imposed by the Supreme Court of Tennessee.
The misconduct rose out of six separate grievances and included
neglecting client matters, charging an unreasonable fee, failing
to respond to client inquiries, and making multiple
misrepresentations to a client, to opposing counsel, and the
State's lawyer regulatory agency. Given the number of counts of
misconduct at issue here, which included threats by physical
violence against the OLR's investigator and at least one client,
the number of clients affected by the misconduct, and the
seriousness of the misconduct, a four-year suspension is
appropriate.
¶64 Finally, we find that Attorney White should be
required to make restitution to the clients listed in the
referee's report as well as the additional client identified in
the OLR's October 5, 2020 response to this court's order to show
cause. We also agree with the referee that Attorney White
should pay the full costs of the proceeding.
¶65 IT IS ORDERED that that the license of Cole J. White
to practice law in Wisconsin is suspended for a period of four
years, effective the date of this order.
¶66 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 $2,514.74 as
of January 7, 2020.
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No. 2019AP1162-D
¶67 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Cole J. White shall make restitution as follows:
• In the J.B. matter, to J.B. and S.T., in the amount
of $3,750, less any amounts Attorney White can prove
he earned.
• In the J.D. matter, to J.B. in the amount of $2,400;
• In the K.G. matter, to the Fund in the amount of
$3,000, as reimbursement the Fund paid to K.G.;
• In the C.C. matter, to the Fund in the amount of the
$3,000, as reimbursement the Fund paid to C.C.;
• In the W.M. matter, to W.M. in the amount of $750;
• In the R.S. matter, to R.S. in the amount of $5,000;
• In the D.N. matter, to the Fund in the amount of the
$10,840, as reimbursement the Fund paid to D.N.;
• In the C.T. matter, to the Fund in the amount of the
$1,500, as reimbursement the Fund paid to C.T.
¶68 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶69 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Cole J. White 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.
¶70 IT IS FURTHER ORDERED that the administrative
suspension of Cole J. White's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues and for
failure to file Office of Lawyer Regulation trust account
certification, will remain in effect until each reason for the
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No. 2019AP1162-D
administrative suspension has been rectified pursuant to
SCR 22.28(1).
¶71 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(3).
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No. 2019AP1162-D
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