2013 WI 19
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP1590-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Robert J. Smead, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Robert J. Smead,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST SMEAD
OPINION FILED: February 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 19
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP1590-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Robert J. Smead, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 20, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
Robert J. Smead,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report and recommendation
of the referee, the Honorable John B. Murphy, approving a
stipulation filed by the Office of Lawyer Regulation (OLR) and
Attorney Robert J. Smead regarding Attorney Smead's professional
misconduct in the handling of one client matter. The OLR and
Attorney Smead stipulate that Attorney Smead committed
professional misconduct. The referee concluded that the
appropriate sanction for the misconduct is a public reprimand.
Upon careful consideration, we adopt the stipulated facts and
No. 2012AP1590-D
the referee's conclusions of law. We also agree that a public
reprimand is an appropriate level of discipline, and also find
it appropriate to order Attorney Smead to pay the full costs of
the proceeding, which are $1,699.03 as of January 2, 2013.
¶2 Attorney Smead was admitted to practice law in
Wisconsin in 1998 and practices in Larsen, Wisconsin. In 2010,
his law license was suspended for 120 days for misconduct found
in two separate attorney disciplinary matters. The misconduct
at issue included failing to respond to clients' requests for
information; failing to hold clients' money in trust; failing to
refund an unearned fee to a client; failing to have a written
contingent fee agreement; and failing to respond to the OLR's
grievance investigations. In re Disciplinary Proceedings
Against Smead, 2010 WI 4, ¶¶20, 28, 322 Wis. 2d 100, 777
N.W.2d 644. In 2011, Attorney Smead was publicly reprimanded
for failure to notify a client that his law license had been
suspended; failure to provide a client with an accounting of
fees advanced and a refund of any unearned portion of the fee
following the suspension of his law license; and failure to
provide the OLR with a written response to a grievance
investigation. In re Disciplinary Proceedings Against Smead,
2011 WI 102, ¶9, 338 Wis. 2d 23, 806 N.W.2d 631.
¶3 On July 17, 2012, the OLR filed a complaint alleging
seven counts of misconduct arising out of Attorney Smead's
representation of J.C., who hired Attorney Smead to represent
him in a criminal matter. J.C. paid Attorney Smead an advanced
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No. 2012AP1590-D
fee of $2,000. Attorney Smead did not prepare a written fee
agreement, nor did he deposit the fee into his trust account.
¶4 On July 26, 2007, Attorney Smead filed a notice of
appearance in the criminal matter on J.C.'s behalf. On
September 5, 2007, the OLR filed a motion with this court asking
it to order Attorney Smead to show cause why his law license
should not be suspended for willful noncooperation in three
grievance investigations unrelated to J.C.'s case. Attorney
Smead failed to timely respond to this court's order to show
cause, and on October 10, 2007, this court issued an order
temporarily suspending Attorney Smead's license. The order
required Attorney Smead to comply with SCR 22.26 which requires,
among other things, that a suspended attorney notify clients in
pending matters of the attorney's suspension and consequent
inability to act. The rule also requires that the attorney
notify courts and adverse parties of the suspension.
¶5 Attorney Smead did not advise J.C., the presiding
court, or the assistant district attorney that his license to
practice law had been suspended. On October 17, 2007, J.C.
telephoned Attorney Smead to ask about the status of his case.
Attorney Smead's telephone was disconnected. J.C. then sent
Attorney Smead an e-mail. Attorney Smead responded and provided
a new telephone number but he did not inform J.C. that his law
license had been suspended.
¶6 J.C. telephoned Attorney Smead multiple times and sent
several e-mails seeking information about the status of his
case. Attorney Smead failed to provide meaningful responses to
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No. 2012AP1590-D
J.C.'s inquiries, and continued in his failure to inform J.C.
that his law license had been suspended, that he could no longer
represent J.C., and that J.C. should hire a new attorney.
¶7 J.C. learned through a source other than Attorney
Smead that Attorney Smead's law license had been suspended. On
January 24, 2008, J.C. sent Attorney Smead an e-mail and
specifically asked him to refund the $2,000 advanced fee.
Attorney Smead did not respond to the request and did not
provide any refund.
¶8 J.C. subsequently retained another attorney to
represent him in his criminal matter. In February of 2008, J.C.
submitted a claim for reimbursement to the Wisconsin Lawyers'
Fund for Client Protection ("the Fund"). The Fund approved
payment of $2,000 to J.C. for reimbursement of funds lost as a
result of Attorney Smead's conduct.
¶9 The OLR's complaint alleged the following counts of
misconduct:
[COUNT ONE:] By accepting a $2,000 advanced fee
from [J.C.] and failing to communicate in writing the
scope of the representation, the basis or rate of the
fee, and the purpose and effect of the advanced fee,
Smead violated SCR 20:1.5(b)(1) and (b)(2).1
1
SCR 20:1.5(b)(1) and (b)(2) states as follows:
(b)(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, except before or within a
reasonable time after commencing the representation
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
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No. 2012AP1590-D
[COUNT TWO:] By failing to deposit funds received
in anticipation of providing legal services into his
trust account, with no evidence he intended to use the
alternative fee placement provisions permitted by the
rules, Smead violated SCR 20:1.15(b)(4).2
[COUNT THREE:] By charging [J.C.] $2,000 for
representation in a criminal matter that he did not
complete, Smead charged an unreasonable fee, and
therefore violated SCR 20:1.5(a).3
the 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.
(b)(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.
2
SCR 20:1.15(b)(4) states:
Unearned fees and cost advances. Except as
provided in par. (4m), unearned fees and advanced
payments of fees shall be held in trust until earned
by the lawyer, and withdrawn pursuant to sub. (g).
Funds advanced by a client or 3rd party for payment of
costs shall be held in trust until the costs are
incurred.
3
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;
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No. 2012AP1590-D
[COUNT FOUR:] By failing to meaningfully respond
to [J.C.'s] multiple phone calls and e[-]mails seeking
information about the status of his case, and
otherwise failing to reasonably consult with [J.C.]
regarding the means by which the objectives of the
representation were to be pursued, Smead violated
SCR 20:1.4(a)(2).4
[COUNT FIVE:] By failing to respond to [J.C.'s]
specific request for a refund of unearned fees, Smead
violated SCR 20:1.5(b)(3).5
[COUNT SIX:] By failing to refund unearned fees
to [J.C.], Smead violated SCR 20:1.16(d).6
(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.
4
SCR 20:1.4(a)(2) provides that a lawyer shall "reasonably
consult with the client about the means by which the client's
objectives are to be accomplished; . . . ."
5
SCR 20:1.5(b)(3) states, "A lawyer shall promptly respond
to a client's request for information concerning fees and
expenses."
6
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
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No. 2012AP1590-D
[COUNT SEVEN:] By failing to notify his client,
the presiding court, and the prosecutor handling the
criminal matter that his law license was under
suspension, Smead violated SCR 22.26(1)(a), (b)[,] and
(c).7
¶10 Attorney Smead filed an answer on July 25, 2012,
admitting the allegations in the complaint. On October 26,
2012, the OLR and Attorney Smead entered into a stipulation
whereby Attorney Smead stated he understood his right to a full
evidentiary hearing at which the OLR would have the burden to
prove the allegations in the complaint by clear, satisfactory,
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
7
SCR 22.26(1)(a), (b), and (c) states as follows:
(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
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No. 2012AP1590-D
and convincing evidence. Attorney Smead affirmed that no
promises were made to secure his entry into the stipulation and
that he entered into the stipulation voluntarily and of his own
free will. The parties stipulated that Attorney Smead would
make restitution to the Fund in the amount of $2,000, with
interest at the rate of five percent dating back to January 24,
2008. On October 26, 2012, the referee entered an order
approving the stipulation. The referee requested the parties to
brief the issue of appropriate discipline. Following review of
those briefs, the referee filed his recommendation as to
discipline on December 10, 2012. While the OLR had sought a 60-
day suspension, Attorney Smead asked for a public reprimand.
The referee concluded that a public reprimand was an appropriate
sanction.
¶11 The referee pointed out that the misconduct at issue
in this case occurred in the fall of 2007, which was the same
general time period during which the misconduct that resulted in
Attorney Smead's prior suspension and public reprimand arose.
The referee said during that time period, Attorney Smead had
taken on too many cases to help another lawyer and he became
overwhelmed. As a result of the extra work, Attorney Smead
became burned out and exhausted and began neglecting his work,
which resulted in complaints to the OLR.
¶12 The referee said in retrospect, Attorney Smead seems
to now recognize that his behavior during late 2007 and early
2008 fell far below the standard of professional responsibility
expected from any attorney. The referee said although none of
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No. 2012AP1590-D
Attorney Smead's post-event analysis of his behavior excuses his
actions in J.C.'s case, it does provide a context for those
actions and suggests that his mistakes were not motivated by
greed or laziness. The referee said Attorney Smead's self-
analysis suggests that he is capable of understanding where he
went wrong in his practice and how those errors could be avoided
in the future.
¶13 The referee notes that following his suspension
Attorney Smead began working as a nursing assistant and later
attended nursing school and became a registered nurse in June of
2010. Attorney Smead continues to work as a nurse. The referee
also notes that Attorney Smead's law license is currently in
good standing and he has been working with the Winnebago County
Free Legal Clinic on a limited basis by providing pro bono and
reduced fee services to needy clients. The referee also points
out that Attorney Smead has made restitution to the Fund.
¶14 The referee concluded that he did not believe a
further suspension would serve either the public or Attorney
Smead in any meaningful way. In the words of the referee:
Smead has been extremely cooperative in handling
this case and he has demonstrated a more than adequate
understanding of his past mistakes. He appears
sincerely sorry for what he did to his clients,
including [J.C.] Smead has made a new life for
himself and has returned to the practice of law as
part of that life. He has chosen to make amends for
this past by providing legal service to those in need.
To deprive him of that opportunity through suspension
would be counter-productive.
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No. 2012AP1590-D
¶15 The referee recommends that the court impose a public
reprimand. He also suggests that this court should consider
waiving costs.
¶16 This court will affirm a referee's findings of fact
unless they are clearly erroneous, but 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. This
court is free to impose whatever discipline it deems
appropriate, 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.
¶17 After careful review of the record, we adopt the
referee's findings of fact and conclusions of law. We also
agree with the referee that a public reprimand is an appropriate
level of discipline.
¶18 We note, as did the referee, that the misconduct at
issue here had its genesis in the same time frame that was at
issue in the matters that led to Attorney Smead's prior
suspension and public reprimand. Attorney Smead has indicated
that since that time he has evaluated his past behavior,
recognized his mistakes, and declared his remorse for his
misconduct. He has embarked on a new career in nursing and has
returned to the practice of law on a limited basis and provides
services to needy clients. We also note that Attorney Smead was
willing to resolve this matter without the need for a full
evidentiary hearing, and he made the ordered restitution to the
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No. 2012AP1590-D
Fund. Under all of these circumstances we conclude that a
public reprimand is an appropriate level of discipline.
¶19 We decline to adopt the referee's recommendation that
Attorney Smead not be assessed the costs of the proceeding.
Supreme Court Rule 22.24(1m) provides that it is this court's
general policy upon a finding of misconduct to impose all costs
upon the respondent. In cases involving extraordinary
circumstances, the court may, in the exercise of its discretion,
reduce the amount of costs. We find no extraordinary
circumstances in this case that would warrant a deviation from
the court's general policy.
¶20 IT IS ORDERED that Robert J. Smead is publicly
reprimanded for professional misconduct.
¶21 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Robert J. Smead shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
¶22 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 order.
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No. 2012AP1590-D
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