2018 WI 96
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP411-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michele A. Tjader, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Michele A. Tjader,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST TJADER
OPINION FILED: October 16, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J.
NOT PARTICIPATING: DALLET, J., did not participate.
ATTORNEYS:
2018 WI 96
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP411-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michele A. Tjader, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant OCT 16, 2018
v. Sheila T. Reiff
Clerk of Supreme Court
Michele A. Tjader,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the supplemental report filed
by Referee John Nicholas Schweitzer, adopting an amended
stipulation entered between the Office of Lawyer Regulation
(OLR) and Attorney Michele A. Tjader.
¶2 After careful review, we accept the referee's
recommendation and parties' stipulation wherein Attorney Tjader
stipulates that she does not contest six counts of misconduct
alleged in the OLR's complaint and the OLR seeks dismissal of
three counts. We agree with the parties and the referee that a
No. 2017AP411-D
public reprimand is an appropriate level of discipline for
Attorney Tjader's misconduct, that restitution is not required,
and that Attorney Tjader should be assessed the full costs of
the proceeding, which are $3,298.19 as of June 26, 2018.
¶3 Attorney Tjader was admitted to practice law in
Wisconsin in 1996. She practices in Madison. She has been
disciplined by this court on three prior occasions. In 2002, we
publicly reprimanded Attorney Tjader for lack of competence,
lack of diligence, failing to comply with reasonable requests
for information, failing to promptly return an advance payment
of fees that had not been earned, and conduct involving
dishonesty, deceit, and misrepresentation. In re Disciplinary
Proceedings Against Tjader 2002 WI 37, 252 Wis. 2d 94, 643
N.W.2d 87. In 2006, Attorney Tjader received a private
reprimand for failing to comply with reasonable requests for
information and failing to explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation. Private Reprimand No.
2006-2 (electronic copy available at
https://compendium.wicourts.gov/app/raw/001855.html). In 2014,
Attorney Tjader received another private reprimand for
committing a criminal act that reflected adversely on her
honesty, trustworthiness or fitness as a lawyer in other
respects as a result of being convicted of operating while
intoxicated (OWI) – second offense. Private Reprimand No.
2014-20 (electronic copy available at https://compendium.
wicourts.gov/app/raw/002709.html).
2
No. 2017AP411-D
¶4 This disciplinary proceeding commenced on March 7,
2017, when the OLR filed a complaint alleging that Attorney
Tjader committed nine counts of professional misconduct
involving three clients.1 The OLR initially recommended a 60-day
suspension and that Attorney Tjader be ordered to pay
restitution in one client matter, for failure to reimburse an
expert for an accident report. During the course of litigation,
the OLR concluded that it would not be able to meet its burden
of proof as to three of the nine alleged counts. Accordingly,
the OLR reduced the recommended sanction to a public reprimand.
¶5 On January 22, 2018, the parties executed an initial
stipulation in which the OLR recommended dismissal of three
counts, Attorney Tjader stated she did not contest the remaining
six counts, and the parties agreed a public reprimand was
appropriate. However, this stipulation failed to address
restitution.
¶6 The referee issued a report on February 13, 2018, in
which he accepted the recommendations in the stipulation but
further recommended that this court order Attorney Tjader to
refund each of the three clients the full amount of fees paid,
an amount that would exceed $34,000. He recommended the court
1
Attorney Tjader initially failed to respond to the
complaint and the OLR filed a Motion for Default Judgment.
However, Attorney Tjader eventually responded, a referee was
appointed, and discovery and further investigation ensued.
3
No. 2017AP411-D
place the burden on Attorney Tjader to demonstrate what, if
anything, she earned if she wanted to reduce this amount.
¶7 After the referee's initial report was filed, the OLR
filed a restitution statement stating that it does not seek
restitution in this matter because restitution with respect to
the first two clients was "not reasonably ascertainable" and the
OLR had determined that the expert who prepared the accident
report has since been paid.2 In view of this discrepancy, we
remanded the matter with directions to the parties to amend
their stipulation to address restitution and directed the OLR to
explain the basis for the recommended discipline.
¶8 An amended stipulation was filed on May 8, 2018. In
the amended stipulation the OLR again recommends the court
dismiss three of the alleged counts of misconduct. Attorney
Tjader states that she does not contest the remaining six
misconduct counts, which alleged violations of former
2
The OLR's policy is to seek restitution only when:
(1) There is a reasonably ascertainable amount;
(2) The funds to be restored were in the
respondent lawyer's direct control;
(3) The funds to be restored do not constitute
incidental or consequential damages; and
(4) The grievant's or respondent's rights in a
collateral proceeding will not likely be prejudiced.
4
No. 2017AP411-D
SCR 20:1.15(b)(4m)b3 and SCR 20:1.16(d),4 stemming from her
representation of three clients.
3
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.
Former SCR 20:1.15(b)(4m)b provided:
A lawyer who accepts advanced payments of fees
may deposit the funds in the lawyer's business
account, provided that review of the lawyer's fee by a
court of competent jurisdiction is available in the
proceeding to which the fee relates, or provided that
the lawyer complies with each of the following
requirements:
b. Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:
1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;
2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and
3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.
4
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
(continued)
5
No. 2017AP411-D
¶9 The relevant facts are as follows. In 2013 and 2014,
Attorney Tjader represented N.B. in a criminal OWI matter; K.D.
in a civil OWI matter; and L.H. in a felony matter. Each of
those clients paid advance fees to Attorney Tjader. N.B. paid
Attorney Tjader $3,500 in advanced fees, K.D. paid her $4,500,
and L.H. paid her $25,000. Attorney Tjader deposited all these
fees directly into her business account. Nevertheless, at the
conclusion of her representation of each client, Attorney Tjader
failed to provide them with the notices required under former
SCR 20:1.15(b)(4m)b. Attorney Tjader also failed to provide
each of the clients with a refund of unearned fees, if any, or
sufficient information to show that no such refund was owing, in
violation of SCR 20:1.16(d).
¶10 In the amended stipulation, Attorney Tjader avers that
the stipulation did not result from plea-bargaining, that she
does not contest the facts and misconduct alleged by the OLR in
counts 2, 3-5, and 8-9, and that the facts alleged in the
complaint form a basis for the discipline requested. Attorney
Tjader further represents that she fully understands the
misconduct allegations; fully understands the ramifications
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.
6
No. 2017AP411-D
should this court impose the stipulated level of discipline;
fully understands her right to contest the matter; fully
understands her right to consult with counsel; that her entry
into the stipulation is made knowingly and voluntarily; and that
the stipulation represents her decision not to contest the level
and type of discipline sought by the OLR director.
¶11 The referee filed a supplemental report on May 31,
2018, adopting the stipulation. The referee agreed that a
public reprimand was an appropriate sanction for the misconduct
described above, and acceded to the parties' recommendation that
no restitution is warranted.
¶12 No appeal has been filed so we review this matter
pursuant to SCR 22.17(2).5 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.
5
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
7
No. 2017AP411-D
¶13 There is no showing that any of the referee's findings
of fact, based on the parties' amended stipulation, are clearly
erroneous. Accordingly, we adopt them. We agree that dismissal
of counts 1, 5, and 6 is appropriate, and we agree that Attorney
Tjader violated supreme court rules noted above.6
¶14 With respect to the appropriate sanction, this court
follows a general policy of progressive discipline. In re
Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296
Wis. 2d 47, 719 N.W.2d 501. Attorney Tjader's record of three
previous reprimands makes another public reprimand somewhat
lenient, but we are persuaded by the referee's recommendation.
¶15 The referee observed that Attorney Tjader's failure to
comply with SCR 20:1.15(b)(4m)b "amounted to technical
violations of essentially a failure to provide appropriate
notice to her clients" citing In re Disciplinary Proceedings
Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439. In
light of this precedent, the referee agreed that,
notwithstanding the policy of progressive discipline, a public
reprimand is appropriate here. See In re Disciplinary
6
We dismiss counts 1, 6, and 7 of the OLR complaint, which
alleged that: by failing to take steps to accurately ascertain
the status of the matter after receiving N.B.'s inquiries into
the status of her driver's license, and by failing to take any
steps to mitigate the consequences of the untimely filed demand
for a refusal hearing, Attorney Tjader violated SCR 20:1.3
(Diligence) (Count 1); by failing to timely address the
restitution issue after L.H.'s sentencing, Attorney Tjader
violated SCR 20:1.3 (Count 6); and by failing to inform L.H.
that a restitution order had been issued by the court, Attorney
Tjader violated SCR 20:1.4(a)(3) (Communication) (Count 7).
8
No. 2017AP411-D
Proceedings Against Shepherd, 2017 WI 66, 376 Wis. 2d 129, 897
N.W.2d 44 (concluding a public reprimand was warranted where, in
addition to other allegations, an attorney failed to provide
notices and refunds of unearned fees); In re Disciplinary
Proceedings Against Smead, 2013 WI 19, 345 Wis. 2d 625, 827
N.W.2d 81 (imposing a public reprimand for seven counts of
misconduct including failing to deposit fees into a trust
account and failing to return unearned fees).
¶16 The OLR assured the court in its memorandum in support
of the amended stipulation that it carefully considered Attorney
Tjader's disciplinary history when determining the OLR's
recommendation for a public reprimand. Consistent with Rajek,
Attorney Tjader's misconduct in these matters, absent her
disciplinary history, might have warranted a diversion or
private reprimand. The OLR explains that it maintained pursuit
of a public reprimand, rather than private discipline, precisely
because of Attorney Tjader's disciplinary history.
¶17 Moreover, with respect to restitution, although the
parties have stipulated that Attorney Tjader violated
SCR 20:1.16(d), the OLR does not dispute that Tjader performed
the services each of these clients hired her to do. The OLR
notes that to the extent that any of these clients believe the
fees they were charged were not reasonable, the State Bar of
Wisconsin offers fee arbitration to address such concerns. In
the amended stipulation, Attorney Tjader has explicitly
confirmed her willingness to participate in fee arbitration if
9
No. 2017AP411-D
initiated by any of her clients and has agreed that she would
comply with any arbitration award.
¶18 Finally, we agree with the referee that, consistent
with our general policy, Attorney Tjader should be required to
pay the full costs of the proceeding, which are $3,298.19.
SCR 22.24(1m).
¶19 IT IS ORDERED that Michele A. Tjader is publicly
reprimanded for professional misconduct.
¶20 IT IS FURTHER ORDERED that, as stipulated, Michele A.
Tjader shall submit any fee dispute, if pursued by any of the
three grievants noted in this decision, to binding fee
arbitration before the State Bar of Wisconsin Fee Arbitration
Program and shall comply with any arbitration award.
¶21 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Michele A. Tjader shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$3,298.19 as of June 26, 2018.
¶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.
¶23 REBECCA FRANK DALLET, J., did not participate.
10
No. 2017AP411-D.awb
¶24 ANN WALSH BRADLEY, J. (dissenting). In spite of
Attorney Tjader having received three prior reprimands, the
court imposes yet another reprimand.1 Accepting the
recommendation of the referee, which in turn accepted the
amended stipulation of the parties, it determines that a public
reprimand is appropriate.
¶25 In justifying its decision, the court apparently is
persuaded by the Office of Lawyer Regulation's (OLR) assurance
that a public reprimand is the correct level of discipline. See
per curiam, ¶16. I am not persuaded by OLR's assurance.
Instead, for the reasons set forth below, I would impose
progressive discipline and place the onus on Attorney Tjader to
demonstrate that no restitution is required.
¶26 First, the opinion of this court states that "the OLR
assured the court in its memorandum in support of the amended
stipulation that it carefully considered Attorney Tjader's
disciplinary history when determining OLR's recommendation for a
public reprimand." Part of that disciplinary history includes a
private reprimand issued by OLR——not this court——for a second
offense OWI.2
1
Attorney Tjader was publicly reprimanded in 2002, and
privately reprimanded in 2006 and 2014.
2
SCR 22.05(1)(c) provides that: "Upon completion of an
investigation, the director may do one or more of the
following: . . . Obtain the respondent's consent to the
imposition of a public or private reprimand and proceed under
SCR 22.09."
1
No. 2017AP411-D.awb
¶27 I thought that we were long since past the time of
addressing multiple OWI convictions (a criminal offense) by
imposing merely a private reprimand. See e.g., In re
Disciplinary Proceedings Against Horsch, 2017 WI 105, ¶23, 378
Wis. 2d 554, 905 N.W.2d 129 (explaining that "multiple OWI
convictions are unquestionably a serious failing that 'reflects
adversely on [an attorney's] fitness as a lawyer in other
respects.'") The OLR's assurance that "it carefully considered"
Attorney Tjader's disciplinary history when making this
recommendation for a public reprimand rests on what appears to
be the misguided foundation of OLR's private reprimand for her
prior criminal conviction.
¶28 Second, the OLR seems to be taking a statement by this
court regarding progressive discipline and turning it on its
head. As justification for going along with the stipulation,
the referee in this case observed that OLR apparently took the
position that because Attorney Tjader's prior misconduct did not
involve the same violations asserted here, that progressive
discipline need not be imposed. For this dubious proposition it
relied on our statement recognizing that progressive discipline
should be followed, especially in cases of repeated violations
of the same code provision. In re Disciplinary Proceedings
Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d
501. Somehow, the OLR apparently now relies on this statement
as a justification to not impose progressive discipline when
there are violations of different code provisions.
2
No. 2017AP411-D.awb
¶29 Finally, the OLR's position on restitution is
misguided. It places the onus for professional misconduct on
the victim of that misconduct rather than on the attorney
engaging in the misconduct. We recently advised the OLR of the
error of its ways in Matter of Med. Incapacity Proceedings
Against Muwonge, 2017 WI 12, ¶23, 373 Wis. 2d 173, 890
N.W.2d 575 (explaining that restitution "may be reduced by any
amount that [the] [a]ttorney [] can establish, to the
satisfaction of the OLR, represents the value of legal services
he actually performed for [the client].").
¶30 Accordingly, I respectfully dissent.
¶31 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON, joins this dissent.
3
No. 2017AP411-D.awb
1
Office of Lawyer Regulation v. Tjader (In Re Tjader)
Court: Wisconsin Supreme Court
Date filed: 2018-10-16
Citations: 918 N.W.2d 418, 2018 WI 96, 384 Wis. 2d 51
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