Office of Lawyer Regulation v. Joseph M. Capistrant

2021 WI 46

SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1007-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Joseph Michael Capistrant, Attorney at
Law:

Office of Lawyer Regulation,
Complainant,
v.
Joseph M. Capistrant,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST CAPISTRANT

OPINION FILED: May 25, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
Per Curiam.
NOT PARTICIPATING:

ATTORNEYS:
 2021 WI 46
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1007-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Joseph Michael Capistrant,
Attorney at Law:

Office of Lawyer Regulation,
FILED
Complainant, MAY 25, 2021

v. Sheila T. Reiff
Clerk of Supreme Court

Joseph M. Capistrant,

Respondent.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. This is a reciprocal discipline matter.

On June 12, 2020, the Office of Lawyer Regulation (OLR) filed a

complaint and motion pursuant to Supreme Court Rule (SCR) 22.22,

asking this court to suspend Attorney Joseph M. Capistrant's

license to practice law in Wisconsin for a period of 60 days, as

discipline reciprocal to that imposed by the Supreme Court of

Minnesota, yet consistent with Supreme Court of Wisconsin
precedent and to order Attorney Capistrant to pay restitution of
 No. 2020AP1007-D

$547 to his client. Upon careful review, we agree that it is

appropriate to suspend Attorney Capistrant's law license for a

period of 60 days. Since this matter did not require submission

to a referee, we impose no costs.

¶2 Attorney Capistrant was admitted to practice law in

Wisconsin in 2007. He was admitted to practice law in Minnesota

in 1987. The most recent address Attorney Capistrant has furnished

to the State Bar of Wisconsin is in Osseo, Minnesota. Attorney

Capistrant's Wisconsin law license has been administratively

suspended since June 12, 2012 for failure to comply with Wisconsin

continuing legal education requirements and since October 31, 2012

for failure to pay state bar dues and file a trust account

certification.

¶3 In 2015, this court suspended Attorney Capistrant's law

license for 90 days. In re Disciplinary Proceedings Against

Capistrant, 2015 WI 88, 364 Wis. 2d 530, 868 N.W.2d 595. He has

not been reinstated from that disciplinary suspension.

¶4 On March 14, 2017, the Minnesota Office of Lawyers
Professional Responsibility (OLPR) petitioned the Supreme Court of

Minnesota to discipline Attorney Capistrant. In 2014, D.Y. hired

Attorney Capistrant to probate his son's estate and make changes

to some family documents. D.Y. paid Attorney Capistrant $547 for

expected expenses. Attorney Capistrant did not deposit the money

into his trust account, did not use the funds toward their intended

purpose, and did not file the probate action. Attorney Capistrant

also did not respond to D.Y. or his daughter's communications about

2
 No. 2020AP1007-D

the matter, did not refund the $547, and did not respond to the

OLPR's attempt to investigate his client's grievance.

¶5 On January 10, 2018, the Supreme Court of Minnesota

disbarred Attorney Capistrant. Attorney Capistrant did not inform

the OLR of the 2018 Minnesota disbarment within 20 days. The OLR's

complaint averred that the OLR's director determined that

Wisconsin precedent justifies a 60-day suspension of Attorney

Capistrant's Wisconsin Law license.

¶6 On November 10, 2020, this court directed Attorney

Capistrant to inform the court in writing within 20 days of any

claim by him that the imposition of reciprocal discipline, as

requested in the OLR's complaint, would be unwarranted. Attorney

Capistrant did not file a response.

¶7 On February 24, 2021, this court directed the parties to

inform the court in more detail why a 60-day suspension, rather

than revocation, which would be comparable to the sanction imposed

in Minnesota, would be an appropriate level of discipline. The

OLR filed a response on March 17, 2021.
¶8 The OLR's response states that Minnesota's disciplinary

system uses a different method of "counts" and rule violations

than does Wisconsin. The OLR explains that in Minnesota, the

misconduct related to Attorney Capistrant's handling of the D.Y.

matter is one count, and his non-cooperation is another count.

The OLR says within these counts, the Minnesota action combined

multiple violations into one unofficial sub-count. The OLR

explains that it determined that the equivalent Wisconsin counts
would be as follows:
3
 No. 2020AP1007-D

 By misappropriating D.Y.'s $547, Attorney Capistrant

violated SCR 20:8.4(c).1

 By failing to deposit D.Y.'s advanced fee payment of

$547 into his trust account, Attorney Capistrant

violated SCR 20:1.15(b)(1).2

 By failing to file the D.Y. probate matter and pay

related expenses, Attorney Capistrant violated

SCR 20:1.3.3

 By failing to keep D.Y. reasonably informed of the

probate matter's status and failing to respond to his

client's reasonable requests for information, Attorney

Capistrant violated SCR 20:1.4(a)(3)4 and

SCR 20:1.4(a)(4).5

1 SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud, deceit
or misrepresentation."
2 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.
3 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
4 SCR 20:1.4(a)(3) provides: "A lawyer shall keep the client
reasonably informed about the status of the matter."
5 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly comply
with reasonable requests by the client for information."

4
 No. 2020AP1007-D

 By failing to respond to D.Y.'s grievance and the OLPR's

requests for information, Attorney Capistrant violated

SCR 22.03(2)6 and SCR 22.03(6),7 enforceable via SCR

20:8.4(c).

¶9 The OLR states that the Minnesota discipline was at heart

a one-client matter and the amount of converted funds was

relatively low at $547. The OLR cites a number of cases in which

this court has previously suspended attorneys for 60 days for

similar misconduct.

¶10 Under our rules and precedent, this court shall impose

the identical discipline imposed by another jurisdiction unless

one or more of the enumerated exceptions in SCR 22.22(3) is shown.

One of the exceptions is that the misconduct justifies

substantially different discipline in this state. See

6 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.
7SCR 22.03(6) provides: "In the course of the investigation,
the respondent's willful 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
 No. 2020AP1007-D

SCR 22.22(3)(c). Upon careful review of this matter and

particularly after reviewing the OLR's response to this court's

February 24, 2021 order, we agree that if this case had been

prosecuted by the OLR, a 60-day suspension of Attorney Capistrant's

license would have been the likely outcome.

¶11 Although no two disciplinary proceedings are identical,

we find the misconduct at issue here somewhat analogous to the

misconduct at issue in In re Disciplinary Proceedings Against

Bartz, 2015 WI 61, 362 Wis. 2d 752, 864 N.W.2d 881. The attorney

in that case was suspended for 60 days for converting $3,271 in

settlement proceeds that he was supposed to hold in trust and in

failing to inform his client of an administrative suspension. In

addition, we find this case somewhat analogous to In re

Disciplinary Proceedings Against Sarbacker, 2017 WI 86, 377

Wis. 2d 484, 901 N.W.2d 373. Attorney Sarbacker was suspended for

60 days for dispersing a client's fund to himself, having no

written fee agreement, failing to timely respond to the grievance

filed against him, and pleading guilty to an unrelated misdemeanor.
Based on these somewhat similar cases, we agree with the OLR that

the misconduct at issue here justifies substantially different

discipline than that imposed by the Supreme Court of Minnesota.

¶12 We agree with the OLR that Attorney Capistrant should be

required to make restitution to D.Y. in the amount of $547. Since

this matter was resolved without the appointment of a referee, we

impose no costs.

6
 No. 2020AP1007-D

¶13 IT IS ORDERED that the license of Joseph M. Capistrant

to practice law in Wisconsin is suspended for a period of 60 days,

effective the date of this order.

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

of this order, Joseph M. Capistrant shall make restitution to D.Y.

in the amount of $547.

¶15 IT IS FURTHER ORDERED that, to the extent he has not

already done so, Joseph M. Capistrant 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.

¶16 IT IS FURTHER ORDERED that compliance with all

conditions of this order are required for reinstatement. See

SCR 22.28(2).

¶17 IT IS FURTHER ORDERED that the administrative suspension

of Joseph M. Capistrant's license to practice law due to his

failure to comply with continuing legal education requirements and

failure to pay state bar dues and comply with trust account

certification requirements shall remain in effect until each
reason for the administrative suspension has been rectified,

pursuant to SCR 22.28(1).

7
 No. 2020AP1007-D

1