Office of Lawyer Regulation v. Jeffery J. Drach

2020 WI 94

SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP237-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Jeffery J. Drach, Attorney at Law:

Office of Lawyer Regulation,
Complainant-Respondent-Cross
Appellant,
v.
Jeffery J. Drach,
Respondent-Appellant- Cross
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST DRACH

OPINION FILED: December 23, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 26, 2020

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., did not participate.

ATTORNEYS:
For the respondent-appellant-cross-respondent, there were
briefs filed by Dean R. Dietrich, Alyson D. Dieckman, and
Dietrich VanderWaal, S.C., Wausau. There was an oral argument by
Dean R. Dietrich.

For the complainant-respondent-cross-appellant, there were
briefs filed by Brenda K. Sunby, William J. Weigel, and Office
of Lawyer Regulation, Madison. There was an oral argument by
William J. Weigel.
 2020 WI 94
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP237-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Jeffery J. Drach, Attorney at Law:

Office of Lawyer Regulation,

Complainant-Respondent-
FILED
Cross Appellant,
DEC 23, 2020
v.
Sheila T. Reiff
Clerk of Supreme Court
Jeffery J. Drach,

Respondent-Appellant-
Cross Respondent.

ATTORNEY disciplinary proceeding. Attorney publicly

reprimanded.

¶1 PER CURIAM. This disciplinary matter comes to the

court on Attorney Jeffery J. Drach's appeal and the Office of

Lawyer Regulation's (OLR) cross-appeal of a report and

recommendation of Referee Robert E. Kinney. The referee based

his report in part on a stipulation between Attorney Drach and

the OLR, in which Attorney Drach admitted four counts of
misconduct and agreed to make a $1,540 restitution payment to
 No. 2018AP237-D

one of the two clients involved in this matter. After holding

an evidentiary hearing to address the appropriate level of

discipline, the referee filed a report concluding that Attorney

Drach committed three of the four charged counts of misconduct,

and recommending a public reprimand. The referee further

recommended that this court order Attorney Drach to pay the full

costs of this disciplinary proceeding, which are $26,449.93 as

of November 9, 2020, and pay restitution beyond the stipulated

amount; specifically, a total of $2,744 to the two clients

involved in this matter, plus interest.

¶2 Through his appeal, Attorney Drach challenges the

referee's recommended public reprimand; he claims his misconduct

merits only a private reprimand. Attorney Drach also asks the

court to reduce the amount of costs in this case by 50 percent.

Finally, Attorney Drach argues that the restitution award

against him should not depart from the stipulated amount:

$1,540 to one of the clients involved this matter.

¶3 In its cross-appeal, the OLR argues that the referee
erred in recommending the dismissal of one of the four

misconduct charges. The OLR further argues that Attorney

Drach's misconduct merits a public reprimand and an award of

full costs, as the referee recommended. The OLR does not seek

restitution beyond the stipulated amount.

¶4 After reviewing this matter and considering Attorney

Drach's appeal and the OLR's cross-appeal, we agree, in part,

with the referee's recommendations. We accept the referee's
factual findings based on the parties' stipulation. We agree
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 No. 2018AP237-D

with the referee that one of the charged counts of misconduct

should be dismissed, but we reach this conclusion for reasons

different from those stated by the referee. We agree with the

referee that Attorney Drach committed the remaining counts of

misconduct, and that this misconduct merits a public reprimand.

We hold that Attorney Drach should pay the full costs of this

matter, and we impose restitution in the stipulated amount of

$1,540.

¶5 The OLR initiated this disciplinary proceeding with

the filing of a three-count complaint in February 2018, which it

later amended in a four-count complaint in June 2018. Attorney

Drach denied any professional misconduct in his answers to both

the original and amended complaints.

¶6 The case proceeded through discovery and was set for a

disciplinary hearing in April 2019. About two weeks before the

scheduled hearing, Attorney Drach entered into a stipulation in

which he admitted all four misconduct charges. He also agreed

to pay——and in fact later paid——$1,540 in restitution to one of
the aggrieved clients.

¶7 The parties requested, and the referee held, an

evidentiary hearing regarding the appropriate level of

discipline. Attorney Drach appeared as the only witness. In

post-hearing briefing, the OLR asked for a public reprimand, and

Attorney Drach asked for a private reprimand.

¶8 In August 2019, the referee filed his report. He

accepted the parties' stipulation, which set forth the following
underlying facts.
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 No. 2018AP237-D

¶9 Attorney Drach has practiced law in Wisconsin since

1975. He operates Drach Elder Law Center LLC (hereafter, the

"Drach firm") in Wausau, WI.

¶10 Attorney Drach has a disciplinary history. In 2002,

he received a public reprimand for failing to consult with a

client as to the objectives of representation; failing to keep a

client reasonably informed about the status of a matter, to

promptly comply with the client's reasonable requests for

information, and to explain a matter to the extent reasonably

necessary to permit the client to make informed decisions

regarding the representation; and representing a client when

that representation conflicted with his responsibilities to

another client. See Public Reprimand of Jeffery J. Drach, No.

2002-9 (electronic copy available at https://compendium.

wicourts.gov/app/raw/000962.html). In 2008, Attorney Drach

received a private reprimand for failing to adequately supervise

the conduct of a non-lawyer employee, which in turn led to

conduct by the non-lawyer employee that would have constituted
professional incompetence had Attorney Drach engaged in the

conduct himself. Private Reprimand No. 2008-26 (electronic copy

available at https://compendium.wicourts.gov/app/raw/

002152.html).

¶11 The instant case involves Attorney Drach's misconduct

in two client matters, described below.

Mr. and Mrs. P. and their adult son, R.

¶12 The first client matter at issue involved a family
comprised of an elderly couple, Mr. and Mrs. P., and their adult
4
 No. 2018AP237-D

son, R. R. had always lived with Mr. and Mrs. P.; he never

lived independently. Mr. P.'s health was declining.

¶13 In 2011, Mr. and Mrs. P. entered into three flat fee

agreements with the Drach firm:

 a "Life Planning Agreement," for $975, which Mr. and

Mrs. P. paid in full in February 2011;

 an "Asset Preservation Planning Agreement," for $5,975,

which Mr. and Mrs. P. paid in full in May 2011; and

 an "Implementation of the Asset Preservation Plan

Agreement," for $2,275, which Mr. and Mrs. P. paid in

full in May 2011.

¶14 In August 2011, the Drach firm sent Mr. and Mrs. P. an

itemized bill, labeled "Life Planning," for $975. There were

several problems with this bill. First, Mr. and Mrs. P. had

already paid a flat fee for "life planning" services (e.g.,

drafting powers of attorney and living wills). Second, although

the bill was labeled as concerning "Life Planning," the actual

itemized work on the bill did not concern life planning, but
rather related to transferring assets to a trust——an area of

work that was not covered by any of the engagement agreements

between Attorney Drach and Mr. and Mrs. P. Third, Attorney

Drach's and his staff member's hourly rates were not set forth

in the bill. Mr. and Mrs. P. nevertheless paid the bill in

full.

¶15 In June 2014, the couple's adult son, R., called

Attorney Drach's firm with news that Mrs. P. was in rapidly
failing health. This development forced revisions to the estate
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 No. 2018AP237-D

plan that Attorney Drach had prepared for Mr. and Mrs. P., which

was based on the assumption that Mr. P. would predecease Mrs. P.

Within a few days of R.'s phone call, Attorney Drach's staff

went to Mrs. P.'s hospice bed with revised estate planning

documents. But Mrs. P. had already lost consciousness, and she

died shortly thereafter.

¶16 In the months following Mrs. P.'s death, Attorney

Drach worked on asset preservation and trust administration

matters on Mr. P.'s behalf. Attorney Drach did not have a

written hourly fee agreement with Mr. and Mrs. P. for either

category of work. During this time period, the Drach firm

issued bills to Mr. P. totaling $6,632.40 for asset preservation

work and $4,537.22 for trust administration work.

¶17 In November 2014, R., in his capacity as power of

attorney for his father, Mr. P., signed a flat fee agreement for

the Drach firm to help prepare a medical assistance application

for his father. The Drach firm charged a flat fee of $6,500

plus out-of-pocket costs. The following month, the Drach firm
withdrew this amount from client funds held in trust.

¶18 Despite having a flat fee agreement in place for

medical assistance application work, the Drach firm sent Mr. P.

a bill in March 2015 with medical-assistance-related billing

entries for eight dates in November and December 2014. These

entries, which totaled $1,540, appeared on a bill related to the

Drach firm's asset preservation work.

¶19 On November 12, 2014, the Drach firm obtained R.'s
permission by telephone to pay $11,169.62 for services rendered
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 No. 2018AP237-D

between June 24, 2014 and October 31, 2014. The Drach firm

withdrew this amount from client funds held in trust one day

later, on November 13, 2014. The Drach firm did not provide the

required notice in writing five days in advance of the trust

fund withdrawal. Nor did the Drach firm provide a written trust

account balance to R. in November 2014, when the legal bill was

paid.

¶20 On December 16, 2014, the Drach firm again called R.

to obtain permission to pay an additional $11,945 in legal fees

from the trust account. The Drach firm explained in a December

18, 2014 letter that this $11,945 amount represented fees for

trust administration work, asset preservation work, and the

$6,500 flat fee for work on Mr. P.'s medical assistance

application. On December 23, 2014, the Drach firm withdrew

$11,945 from client funds held in trust. The firm did not

provide R. with an accurate accounting in writing of what was

being paid from the trust account, nor was he notified when the

funds would be withdrawn from trust. Of the fees listed in the
December 18, 2014 letter, $2,322 was for asset preservation work

that had not yet been done; the firm had estimated the amount of

fees needed to finish the asset preservation work by multiplying

the expected amount of time the Drach firm's attorneys and staff

planned to work on the file by his/her hourly rate. R. was

never informed that a portion of the bill was based on estimated

future fees.

¶21 As a result of these actions, Attorney Drach
stipulated to the following counts of misconduct:
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 No. 2018AP237-D

Count One: By billing medical assistance application
work as hourly charges within asset preservation
billings when there was an existing flat fee
agreement, Attorney Drach violated SCR 20:1.5(a).1

Count Two: By charging an additional $975 for life
planning work when the work was actually for the
transferring of assets without disclosing to Mr. and
Mrs. P. the basis or rate of the hourly fees, by
failing to enter into a written fee agreement for
asset preservation work in 2014, and by failing to
enter into a written fee agreement for representation
relating to trust administration, in each instance,
Attorney Drach violated SCR 20:1.5(b)(l).2

1 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;

(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.
2 SCR 20:1.5(b)(l) provides:
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 No. 2018AP237-D

Count Three: By failing to provide R. with the
anticipated date of withdrawal of funds from trust to
pay fees in November and December 2014, by failing to
provide a written trust account balance in November
2014, by failing to provide an accurate written trust
account balance in December 2014, and by estimating
future non-contingent fees and withdrawing them from
the trust account before they were earned in December
2014, in each instance, Attorney Drach violated former
SCR 20:1.15(g).3

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.
3 Former SCR 20:1.15(g), effective through June 30, 2016,
provided:

(1) Notice to client. At least 5 business days
before the date on which a disbursement is made from a
trust account for the purpose of paying fees, with the
exception of contingent fees or fees paid pursuant to
court order, the lawyer shall transmit to the client
in writing all of the following:

a. An itemized bill or other accounting showing
the services rendered;

b. Notice of the amount owed and the anticipated
date of the withdrawal; and

c. A statement of the balance of the client's
funds in the lawyer trust account after the
withdrawal.

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 No. 2018AP237-D

G.L.

¶22 The second client matter at issue involved Attorney

Drach's representation of G.L. G.L. was an elderly woman with

two adult daughters, J.T. and J.E., and a husband with

Alzheimer's disease. G.L.'s daughter, J.T., worked at the Drach

firm for two years, from January 2007 to February 2009, doing

typing and bookkeeping work.

¶23 In 2007, G.L. signed a flat fee agreement with the

Drach firm for Estate Planning/Life Planning, Asset Preservation

Planning, and Implementation of the Asset Preservation Plan.

The flat fee was $12,000, plus out-of-pocket costs. Attorney

Drach completed the work encompassed in the flat fee agreement

in 2010.

¶24 In November 2014, G.L.'s daughter, J.T., became

gravely ill. J.T. was G.L.'s power of attorney. In that

capacity, J.T. requested that Attorney Drach review G.L.'s

existing documents to ensure that G.L.'s affairs were in order.

¶25 Attorney Drach met with J.T. at her home on November
10, 2014. He did not have J.T. sign any agreement setting forth

the nature of the legal work that he was going to perform, nor

did he discuss with her whether the legal work would be done on

a flat fee or hourly basis. J.T. passed away several days after

Attorney Drach met with her.

¶26 In February 2015, Attorney Drach sent G.L. a bill for

additional estate planning work in the amount of $7,659. He

issued this bill without a written hourly fee agreement in
place. The bill did not itemize the time spent by each attorney
10
 No. 2018AP237-D

or staff member or show the hourly rates for Attorney Drach or

his staff. Attorney Drach had never discussed with J.T. or G.L.

the fact that his and his staff's hourly rates had increased

since he had last done trust administration work on G.L.'s

behalf several years earlier.

¶27 In late 2014, G.L. retained a different lawyer to

represent her with respect to her estate planning and trust

administration matters. On March 30, 2015, Attorney Drach

provided G.L.'s new counsel with G.L.'s $7,659 bill, which,

again, did not include an hourly rate breakdown nor a detailed

itemization of the time spent by each attorney or staff member.

On April 24, 2015, pursuant to a request by G.L.'s new counsel,

Attorney Drach provided counsel with a detailed billing

statement that included an itemization of work done on the file

and disclosed the current hourly rates for Attorney Drach and

his staff.

¶28 As a result of these actions, Attorney Drach

stipulated to the following counts of misconduct:

Count Four: By doing legal work on G.L.'s file in
2014 and 2015 for estate planning without a written
fee agreement and by failing to communicate in writing
any changes to the basis or rate of the hourly fees
related to the trust administration legal work, in
each instance, Attorney Drach violated
SCR 20:1.5(b)(1).
¶29 As mentioned above, the referee filed his report after

holding a hearing on sanctions. Despite the parties'

stipulation to all four counts of misconduct, the referee
recommended dismissal of stipulated Count One, which, again,

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 No. 2018AP237-D

alleged that by billing Mr. and Mrs. P. for medical assistance

application work as hourly charges within asset preservation

billings when there was an existing flat fee agreement for

medical assistance application work, Attorney Drach violated

SCR 20:1.5(a) (forbidding lawyer from making an agreement for,

charging, or collecting "an unreasonable fee or an unreasonable

amount for expenses"). The referee reasoned that, although

Attorney Drach billed in excess of the amount set by the flat

fee agreement for medical assistance application work ($6,500),

there was no testimony or other evidence in the record to show

that the total amount actually billed (the $6,500 flat fee, plus

$1,540 in hourly billings, equaling $8,040) was an unreasonable

amount. Thus, in the referee's view, there was no violation of

SCR 20:1.5(a). "[F]or a violation of SCR 20:1.5(a) to lie, it

must be shown that the attorney fees charges were too high," the

referee wrote. Without such a showing, Attorney Drach's billing

practices could only be a breach of the fee agreement, not

misconduct.
¶30 As to the remaining counts, the referee determined

that the stipulated facts supported legal conclusions that

Attorney Drach had engaged in the misconduct alleged in Counts

Two, Three, and Four.

¶31 Turning to the issue of appropriate discipline, the

referee found that Attorney Drach's overall course of conduct

featured more aggravating factors than mitigating factors. On

the aggravating side, the referee noted that Attorney Drach's
prior disciplinary cases, from 2002 and 2008, are somewhat
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 No. 2018AP237-D

remote from today, but much less remote from the time the

offenses at issue here were committed. Attorney Drach committed

multiple offenses. The victims were particularly vulnerable.

Attorney Drach had trouble seeing, or acknowledging, that what

he did was wrong, and he tended to blame his employees for his

ethical troubles. His substantial experience in the law (more

than 40 years) should have counseled against his actions,

particularly his tendency to forego written engagement

agreements. On the mitigating side, he cooperated with the OLR.

He also agreed to pay $1,540 in restitution to the P. family.

¶32 The referee further recommended that Attorney Drach

should pay full costs, as well as restitution beyond the

stipulated amount. Specifically, the referee recommended a

restitution award of $2,744, comprised of the stipulated $1,540

to R., plus a payment to G.L. of $1,204, which equals the

difference between the amount Attorney Drach actually billed her

at his undisclosed higher rates and the amount he would have

billed her at the lower rates at which he had billed her years
earlier. The referee further recommended that Attorney Drach

pay interest on these restitution amounts.

¶33 As mentioned above, both Attorney Drach and the OLR

have appealed from the referee's report. We turn first to the

arguments in Attorney Drach's appeal.

¶34 Attorney Drach argues that the referee correctly

recommended the dismissal of Count One, which, again, alleged

that by billing Mr. and Mrs. P. for medical assistance
application work as hourly charges within asset preservation
13
 No. 2018AP237-D

billings when there was an existing flat fee agreement for

medical assistance application work, Attorney Drach violated

SCR 20:1.5(a). Although Attorney Drach stipulated to the

misconduct alleged in Count One, he insists on appeal that the

facts underlying this count show no more than clerical errors,

and that in any event, there is no evidence to show that the

cumulative amount he charged for his services was unreasonable.

¶35 Attorney Drach does not challenge the referee's

determinations of misconduct on Counts Two, Three, and Four, but

he insists his misconduct should result in the imposition of a

private reprimand——not a public reprimand, as the referee

recommended. He argues that that his misconduct amounted to

nothing more than "technical" violations of our ethical rules,

complained about by "disgruntled family members." He claims

that his failures to enter into fee agreements with Mr. and Mrs.

P. and with G.L. were acts of "care and compassion" because it

would have been inappropriate to have conversations about fees

with R. while his mother was dying, or with G.L.'s power of
attorney, J.T., while J.T. was gravely ill. Attorney Drach also

claims that that the referee failed to appropriately acknowledge

certain mitigating factors, namely: (1) his cooperation with

the OLR; (2) the visible place he holds in the legal community;

and (3) the purported fact that, if he is publicly reprimanded,

he may be forced to resign certain professional designations or

positions. As for his previous disciplinary problems, he claims

they are too old, and too distinguishable, to have relevance
here.
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 No. 2018AP237-D

¶36 Turning to restitution and costs, Attorney Drach

argues that the referee erred in recommending restitution

payments that the OLR never sought. Attorney Drach also objects

to the imposition of full costs. He suggests that a reduction

in costs——50 percent, his counsel proposed at oral argument——

would be appropriate. He claims that "at the time that OLR

initiated its investigation, it alleged that Attorney Drach had

engaged in far more serious and pervasive misconduct that what

was ultimately alleged." According to Attorney Drach, this

extensive investigation, combined with the lengthy litigation

involved in this case, show that the OLR "has pursued an

unjustified campaign against [him]. In the interest of

fairness, the Court should adjust the costs to reflect a more

realistic prosecution of the case."

¶37 In its appellate briefing, the OLR argues that the

referee's recommendation of a public reprimand is appropriate

and supported by the evidence. As an initial matter, the OLR

disagrees with the referee's recommendation that this court
should dismiss Count One. It submits that the referee's belief

that the existence of an SCR 20:1.5(a) violation depends on the

reasonableness of the amount ultimately charged the client is

inconsistent with the language of the rule. The rule provides

that the amount of fees involved is simply one of the eight

factors set forth in the rule. See SCR 20:1.5(a)(4). There is

no language in the rule that states that the entire fee must be

found to be unreasonable in order to make a finding of an
SCR 20:1.5(a) rule violation.
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 No. 2018AP237-D

¶38 The OLR also argues that Attorney Drach's insistence

that it would have been improper to discuss fees with his

clients at or near the time of a family member's serious illness

or death displays a disregard of the ethical rule requiring

written fee agreements. The OLR points out that many lawyers

regularly deal with families in crisis, especially in personal

injury, wrongful death, and probate-type cases, and yet a

written communication about what a lawyer is going to charge a

client in this situation is mandated by the ethical rules. The

OLR further notes that in situations where raising the topic of

fees may come across as insensitive, the rules allow some

flexibility, as the communication in writing can be "before or

within a reasonable time after commencing the representation."

SCR 20:1.5(b)(1).

¶39 The OLR also argues that Attorney Drach's previous

disciplinary matters are pertinent here. His 2008 private

reprimand, for example, was based on his general failure to

supervise his office staff in the execution of estate planning
documents. The instant case reveals a similar pattern of

misconduct; i.e., a failure to put protocols in place to ensure

that matters are being properly handled within his office.

¶40 Turning to the issue of restitution and costs, the OLR

does not seek restitution beyond the stipulated amount of

$1,540. The OLR insists, however, that costs should not be

reduced. The OLR reports that while it is true that it

investigated matters and charges that were ultimately not
pursued in the disciplinary complaint, it did not include any
16
 No. 2018AP237-D

costs attributable to time spent by investigators in the costs

reported in this case. Moreover, the OLR notes, Attorney Drach

stipulated to all four of the misconduct counts alleged by the

OLR. Attorney Drach failed to explain how or why the OLR acted

inappropriately in pursing this matter.

¶41 The matter is now before this court to review the

referee's report and recommendation, informed by the parties'

arguments made in their briefs and at oral argument. When

reviewing a referee's report and recommendation, we affirm the

referee's findings of fact unless they are clearly erroneous,

but we review the referee's conclusions of law on a de novo

basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI

126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the

appropriate level of discipline to impose given the particular

facts of each case, independent of the referee's recommendation,

but benefiting from it. In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶42 Guided by these standards, we conclude that Attorney
Drach committed the rule violations alleged by the OLR in Counts

Two, Three, and Four——just as the OLR complaint alleged, the

parties stipulated, and the referee determined. By his

undisputed failure to enter into written fee agreements with his

clients, his failure to communicate to G.L. in writing the

changes to his firm's hourly rates, and his failure to provide

Mr. and Mrs. P.'s adult son, R., with timely notices of the

withdrawal of funds from trust and an accurate accounting of

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 No. 2018AP237-D

trust fund balances, Attorney Drach violated SCR 20:1.5(b)(1)

and SCR 20:1.15(g).

¶43 We agree with the referee that Attorney Drach did not

commit the misconduct alleged in Count One, but for different

reasons from those expressed by the referee. We disagree with

the referee's conclusion that it is ethically permissible for a

lawyer who has agreed to a flat fee to demand that the client

make payments beyond that amount for legal work within the scope

of the agreement, so long as the total amount billed is not

shown to be excessively high. Clients enter flat fee agreements

with the expectation that the flat fee is a reasonable

calculation of all of the work to be done. We decline to hold

that SCR 20:1.5(a), which mandates reasonable fees, permits a

lawyer to unilaterally switch from a flat fee agreement to a

flat-fee-plus-hourly-fee arrangement for work covered by the

flat fee agreement. Billing a client using such an unagreed-to

and inherently contradictory fee structure hardly seems

"reasonable" for purposes of SCR 20:1.5(a), regardless of the
total amount billed.

¶44 We are persuaded, however, by Attorney Drach's

argument that he did not engage in this kind of inappropriate

billing practice here. Rather, it appears undisputed that

Attorney Drach's clerical staff mistakenly entered, on a single

bill in an hourly billing matter, time entries for eight dates

concerning work that should have been billed as part of a flat

fee billing agreement. When asked at the sanctions hearing in

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 No. 2018AP237-D

this matter why he did not correct these errors while reviewing

the bill, Attorney Drach testified:

[W]hat I usually review for is typos and grammar. I
review for appropriate descriptions in the narrative.
This was done at a time when we were scrambling to
make sure that [Mr. P.] got eligible [for Medicaid].
So I think I reviewed this, but . . . I obviously
didn't pick up on the fact that there were some
medical assistance entries there.
Attorney Drach agreed to reimburse the P. family for the amounts

billed in the mistaken time entries (a total of $1,540), and he

has, in fact, done so.

¶45 On these particular facts, we do not find an

SCR 20:1.5(a) violation. While an attorney's fee must

unquestionably be reasonable, we decline to hold that the

issuance of a single bill containing some inadvertently included

time entries rises to the level of misconduct contemplated by

SCR 20:1.5(a).

¶46 We are left, then, with determining the appropriate

sanction for the misconduct alleged in Counts Two, Three, and

Four. In making this determination, we reject Attorney Drach's

insistence that this court should view his failure to enter

written fee agreements with his clients as an act of compassion,

not misconduct. As explained above, Attorney Drach argues that

he was loathe to discuss fee arrangements with his clients in

times of illness or recent family loss. That is not a winning

excuse for a lawyer's failure to get written fee agreements in

place——especially for an elder law lawyer such as Attorney
Drach. Illness, death, and the family turmoil associated with

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these events are integral parts of Attorney Drach's practice.

They do not give him an excuse to bypass explicit ethical

requirements. To the contrary, the distressing circumstances in

which his clients often find themselves make it only more

important that Attorney Drach have clear, written fee agreements

in place——as did not happen here.

¶47 We note, too, that this is the third time that

Attorney Drach has been the subject of a disciplinary action.

Given that he has already been privately and publicly

reprimanded, one could argue that the next logical step is a

suspension. See In re Disciplinary Proceedings Against

Gorokhovsky, 2013 WI 100, ¶26, 351 Wis. 2d 408, 840 N.W.2d 126

("Now that we already have privately and publicly reprimanded

Attorney Gorokhovsky, imposing yet another reprimand would

unduly depreciate the seriousness of his misconduct and the need

to deter him from continued unprofessional behavior.") But a

suspension seems too harsh; while Attorney Drach has engaged in

unprofessional billing practices, there is no evidence of deceit
or any course of conduct designed to collect fees for work not

performed.

¶48 A public reprimand, however, fits comfortably within

our case law. See, e.g., Public Reprimand of James T. Runyon,

No. 2017-5 (electronic copy available at

https://compendium.wicourts.gov/app/raw/002958.html) (imposing

public reprimand on previously disciplined lawyer for, among

other things, failing to provide a client with a written
communication explaining the representation's scope or required
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fee information, failing to notify the client before removing

fees from his trust account, failing to communicate his fee in

writing, and withdrawing an advanced fee before it was earned);

see also Public Reprimand of Jerry T. Delcore, No. 2017-2

(electronic copy available at https://compendium.wicourts.gov/

app/raw/002929.html) (imposing public reprimand on previously

disciplined lawyer for providing a client with inconsistent and

confusing information regarding the rate and basis of her fees,

and for failing to provide the client with notices and

accountings required under former SCR 20:1.15(b)(4m)(a) and (b)

for advanced fee payments).

¶49 Although Attorney Drach claims that a public reprimand

will hurt his standing in the elder law community, we have

previously made clear that a possible detrimental impact on an

attorney's ability to practice is not an appropriate factor in

establishing a level of discipline. See In re Disciplinary

Proceedings Against Lamb, 2011 WI 101, ¶31, 338 Wis. 2d 1, 806

N.W.2d 439.
¶50 Finally, the court must consider the issues of

restitution and costs. At oral argument, the OLR made clear

that it does not now, and did not previously, seek restitution

beyond the amount that Attorney Drach has already paid ($1,540).

We accede to the OLR's judgment on this issue.

¶51 As to costs, we reject Attorney Drach's request for a

50 percent reduction in awardable costs as undeveloped. In

proceedings before the referee, Attorney Drach objected to the
OLR's requested costs in a conclusory fashion, and did not state
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what he considered to be a reasonable amount of costs. See

SCR 22.24(2).4 His request for a 50 percent reduction came only

at oral argument, unsupported by any explanation as to why this

figure is reasonable beyond a claim that the OLR engaged in

overbroad litigation against him——a perplexing argument given

his stipulation to all of the counts that the OLR charged.

Under SCR 22.24(1m), the court's general policy is that upon a

4 SCR 22.24(2) provides:

In seeking the assessment of costs by the supreme
court, the director shall file in the court, with a
copy to the referee and the respondent, a statement of
costs within 20 days after the filing of the referee's
report or a SCR 22.12 or 22.34(10) stipulation,
together with a recommendation regarding the costs to
be assessed against the respondent. If an appeal of
the referee's report is filed or the supreme court
orders briefs to be filed in response to the referee's
report, a supplemental statement of costs and
recommendation regarding the assessment of costs shall
be filed within 20 days of the date of oral argument
or, if no oral argument is held, the filing date of
the last brief on appeal. The recommendation should
explain why the particular amount of costs is being
sought. The respondent may file an objection to the
statement of costs and recommendation within 21 days
after service of the statement of costs. A respondent
who objects to a statement of costs must explain, with
specificity, the reasons for the objection and must
state what he or she considers to be a reasonable
amount of costs. The objection may include relevant
supporting documentation. The office of lawyer
regulation may reply within 11 days of receiving the
objection. In proceeding before a referee the referee
shall make a recommendation to the court regarding
costs. The referee should explain the recommendation
addressing the factors set forth in SCR 22.24 (lm).
The referee shall consider the submissions of the
parties and the record in the proceeding. No further
discovery or hearing is authorized.

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finding of misconduct it is appropriate to impose all costs upon

the respondent. The court may, in the exercise of its

discretion, reduce the amount of costs, but we find no

justification in this case for a deviation from the court's

general policy.

¶52 IT IS ORDERED that Jeffery J. Drach is publicly

reprimanded for his professional misconduct.

¶53 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Jeffery J. Drach shall pay to the Office of

Lawyer Regulation the costs of this proceeding, which are

$26,449.93 as of November 9, 2020.

¶54 IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this decision.

¶55 ANN WALSH BRADLEY, J., did not participate.

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