2017 WI 5
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP684-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David A. Lemanski, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
David A. Lemanski,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST LEMANSKI
OPINION FILED: February 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 5
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP684-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David A. Lemanski, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, FEB 1, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
David A. Lemanski,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report of Referee John
Nicholas Schweitzer, which concluded that Attorney David A.
Lemanski had committed three counts of professional misconduct
and recommended (1) that the court publicly reprimand Attorney
Lemanski, (2) that Attorney Lemanski's continued practice of law
be conditioned on his payment of a sanction imposed by the Grant
County circuit court, and (3) that Attorney Lemanski be ordered
to pay the costs of this proceeding, which were $1,192.03 as of
No. 2016AP684-D
September 19, 2016. Because no appeal of this report has been
filed, our review of this matter proceeds pursuant to Supreme
Court Rule (SCR) 22.17(2).1 Ultimately, we conclude that a
public reprimand and the imposition of a condition on Attorney
Lemanski's practice of law in this state are appropriate forms
of discipline in this matter. We further determine that
Attorney Lemanski should be required to pay the full costs of
this proceeding.
¶2 Attorney Lemanski was admitted to the practice of law
in this state in October 2002. He most recently practiced law
in Dubuque, Iowa.
¶3 Attorney Lemanski has been the subject of professional
discipline in this state on one prior occasion. In March 2015
this court suspended his license to practice law in Wisconsin
for a period of 60 days, as discipline reciprocal to that
imposed by the Supreme Court of Iowa. In re Disciplinary
Proceedings Against Lemanski, 2015 WI 10, 360 Wis. 2d 643, 858
N.W.2d 696. It does not appear that Attorney Lemanski's
Wisconsin license was reinstated following that disciplinary
suspension. There is no evidence that Attorney Lemanski
1
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.
2
No. 2016AP684-D
complied with the applicable reinstatement requirements of
SCR 22.28(2), including the filing of an affidavit with the
Office of Lawyer Regulation (OLR) showing full compliance with
all of the terms and conditions of this court's suspension
order. In addition, Attorney Lemanski's license is also subject
to two other suspensions. First, in October 2015 Attorney
Lemanski's license was administratively suspended due to his
failure to pay bar dues and assessments and his failure to
complete the trust account certification. Second, on November
4, 2015, this court temporarily suspended Attorney Lemanski's
license due to his willful failure to cooperate with a grievance
investigation conducted by the OLR. Office of Lawyer Regulation
v. Lemanski, No. 2015XX1279-D, unpublished order (S. Ct.
November 4, 2015).
¶4 The OLR commenced this action with the filing of a
complaint alleging three counts of professional misconduct.
Attorney Lemanski filed an answer admitting all of the
allegations of the complaint. Consequently, the referee granted
the OLR's motion for judgment on the pleadings. While Attorney
Lemanski admitted the allegations of misconduct, he did not
agree to the level of discipline sought by the OLR. As it had
requested in its complaint, the OLR urged the referee to
recommend the imposition of a public reprimand. Attorney
Lemanski, on the other hand, asked that the reprimand be private
in nature. As noted above, the referee agreed with the OLR that
a public reprimand was the appropriate level of discipline.
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No. 2016AP684-D
¶5 Given Attorney Lemanski's admissions in his answer,
the referee used the allegations of the OLR's complaint as his
findings of fact. They are summarized below.
¶6 Counts 1 and 2 of the OLR's complaint relate to
Attorney Lemanski's representation of S.K. in a legal separation
proceeding. S.K. retained Attorney Lemanski in September 2014.
In late November 2014 he informed Attorney Lemanski that he was
terminating his services.
¶7 Attorney Lemanski did not notify opposing counsel that
his representation of S.K. had been terminated. Accordingly, in
early January 2015 opposing counsel sent a notice of deposition
of S.K. to Attorney Lemanski, assuming that Attorney Lemanski
was still representing S.K. Because Attorney Lemanski failed to
forward the notice to him, S.K. did not appear at the
deposition.
¶8 On January 29, 2015, opposing counsel filed a motion
to compel S.K.'s deposition and for other relief. On February
11, 2015, Attorney Lemanski formally withdrew as S.K.'s counsel.
¶9 On February 12, 2015, the judge in S.K.'s proceeding
ordered Attorney Lemanski to pay $1,471.50 to the opposing party
as reimbursement for its fees and costs related to the missed
deposition and other missed discovery deadlines. Attorney
Lemanski failed to pay the fees and costs as ordered.
¶10 In June 2015 the OLR sent a written notice to Attorney
Lemanski advising him that it was investigating his conduct in
the representation of S.K. and directing him to provide a
response by July 27, 2015. On July 24, 2015, Attorney Lemanski
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No. 2016AP684-D
asked for and was orally granted an extension of time until
August 17, 2015, to submit his written response to the
grievance. He was told that he should call the OLR if he needed
more time to respond. Attorney Lemanski, however, did not
submit a response nor did he ask for a further extension of
time.
¶11 Consequently, on August 24, 2015, the OLR sent
Attorney Lemanski a second letter requesting a response by
September 4, 2015. Attorney Lemanski received the OLR's letter,
but failed to respond.
¶12 In September 2015 the OLR moved the court for the
temporary suspension of Attorney Lemanski's license under
SCR 22.03(4) due to his willful failure to cooperate with the
OLR's investigation. This court issued an order directing
Attorney Lemanski to show cause why his license should not be
temporarily suspended, but he did not respond to the order.
Ultimately, on November 4, 2015, this court granted the OLR's
motion and temporarily suspended Attorney Lemanski's license to
practice law in this state.
¶13 Based on these facts, the referee concluded that
Attorney Lemanski had committed two counts of professional
misconduct. First, the referee determined that Attorney
Lemanski's failure to pay the costs and fees of the opposing
party as ordered by the circuit court had violated SCR
5
No. 2016AP684-D
20:3.4(c).2 Second, the referee concluded that Attorney
Lemanski's failure to respond to the OLR's letters had violated
SCR 22.03(2) and (6),3 which are enforced through SCR 20:8.4(h).4
¶14 Count 3 of the OLR's complaint stems from Attorney
Lemanski's representation of L.A. in a divorce proceeding.
2
SCR 20:3.4(c) provides: "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
3
SCR 22.03 (2) and (6) provides:
(2) 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.
. . . .
(6) 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.
4
SCR 20:8.4(h) provides that 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)."
6
No. 2016AP684-D
Attorney Lemanski formally appeared for L.A. on November 7,
2008, a little less than one month after the divorce proceeding
had been initiated. The referee found that it was reasonably
foreseeable at the time that the total cost of the
representation would exceed $1,000. Indeed, Attorney Lemanski
accepted a $2,000 advanced payment from L.A. at the start of the
representation. Nonetheless, Attorney Lemanski never prepared a
written fee agreement.
¶15 Attorney Lemanski represented L.A. through a trial,
through the entry of a judgment of divorce, and through the
filing of a notice of appeal. On August 9, 2010, Attorney
Lemanski withdrew as L.A.'s counsel. Attorney Lemanski billed
for his services on an hourly basis. By the time he withdrew as
counsel, the entire $2,000 advanced fee had been applied toward
Attorney Lemanski's fees and expenses. Indeed, Attorney
Lemanski later submitted an additional invoice to L.A. that
exceeded $1,000.
¶16 On the basis of these facts, the referee determined
that Attorney Lemanski's failure to complete a written fee
agreement, despite his acceptance and use of a $2,000 advance
fee and his submission of an additional invoice in excess of
$1,000, had violated SCR 20:1.5(b)(1) and (2).5
5
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
(continued)
7
No. 2016AP684-D
¶17 The referee noted that in light of Attorney Lemanski's
admission of the OLR's factual allegations, the sole issue of
dispute between the parties was the level of discipline to be
imposed. The OLR sought a public reprimand, the conditioning of
Attorney Lemanski's practice of law in this state on his payment
of the $1,471.50 in fees and costs, as ordered by the circuit
court, and a requirement that Attorney Lemanski pay the full
costs of this disciplinary proceeding. Attorney Lemanski, on
the other hand, argued that a private reprimand was the
appropriate level of discipline.
¶18 The referee agreed with the OLR's request for a public
reprimand. He noted that the purposes of imposing professional
discipline include protecting the public from further misconduct
by the respondent attorney, deterring other attorneys from
engaging in similar misconduct, and rehabilitating the
respondent attorney. The referee determined that a private
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.
8
No. 2016AP684-D
reprimand would not sufficiently impress upon Attorney Lemanski
the need to practice law competently and in accordance with his
ethical obligations. The referee also believed that the
imposition of a private reprimand on an attorney who had
knowingly violated a court order and had knowingly chosen not to
cooperate with an OLR investigation "would not adequately
impress on other attorneys the need to follow the rules."
Finally, the referee concluded that imposing a private reprimand
would not have any rehabilitative effect on Attorney Lemanski.
¶19 The referee further agreed with the OLR that Attorney
Lemanski should be required, as a condition of his practice of
law in this state, to make the $1,471.50 payment as ordered by
the circuit court. In its restitution statement, the OLR
acknowledged that this amount is not really restitution because
it is not the return of money held by the respondent attorney.
Nonetheless, the OLR urged that payment of this award to the
party opposing S.K. be included in the court's judgment as a way
to reinforce the circuit court's order.
¶20 With respect to the issue of costs, the referee
determined that there was no basis to deviate from the court's
usual practice of imposing full costs on an attorney who is
found to have committed professional misconduct. Although costs
often are not imposed where a respondent attorney resolves the
matter by stipulation prior to the filing of a complaint, in
this case Attorney Lemanski chose not to enter into such a
stipulation.
9
No. 2016AP684-D
¶21 The standard we employ to review a referee's report
and recommendation in an attorney disciplinary case is well-
established. We affirm a referee's findings of fact unless they
are found to be 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.
¶22 In this instance, given Attorney Lemanski's admission
of the allegations in the OLR's complaint, there is no dispute
that the referee's factual findings are appropriate. Moreover,
we conclude that those factual findings adequately support legal
conclusions that Attorney Lemanski engaged in the three counts
of professional misconduct with which he was charged.
¶23 The primary matter here that requires our
consideration is the proper level of discipline to impose on
Attorney Lemanski. We agree with the OLR and the referee that a
private reprimand would not be sufficient under these
circumstances and that a public reprimand is the appropriate
level of discipline. See In re Disciplinary Proceedings Against
Stobbe, 2015 WI 43, 362 Wis. 2d 69, 862 N.W.2d 152 (imposing
public reprimand, based upon respondent attorney's stipulation
of facts and misconduct, where attorney failed to proceed with
diligence and failed to comply with court orders to file
10
No. 2016AP684-D
compliant briefs and to pay sanctions imposed for failing to do
so). Here, there was misconduct in connection with two separate
representations. Further, the misconduct involved the failure
to obey a court order, which is a serious breach of an
attorney's obligations as an officer of the court. Moreover,
this is not the first time that Attorney Lemanski is being
disciplined for professional misconduct. The earlier 60-day
reciprocal suspension stemmed in part from failing to respond to
a demand for information from the regulatory authorities in
Iowa. His failure here to respond to the OLR's request for a
response to its grievance investigation is therefore a
continuing pattern of disregard toward his obligations to
cooperate with grievance investigations. We conclude that a
private reprimand in such circumstances would not sufficiently
impress upon Attorney Lemanski the seriousness of his misconduct
and the need for him to conform his conduct in the future to the
Rules of Professional Conduct for Attorneys.
¶24 We turn next to the referee's recommendation that we
require Attorney Lemanski to pay the opposing party's costs and
fees in the amount of $1,471.50, as ordered by the court in
S.K.'s legal separation proceeding. We agree with the OLR's
observation that placing this condition on Attorney Lemanski's
practice of law does not constitute a restitution award.
Imposing such a condition would not require Attorney Lemanski to
restore funds to the proper recipient of the funds, either a
client or a third party. Nonetheless, we may require Attorney
Lemanski to make this payment as a form of discipline that is
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No. 2016AP684-D
designed to promote his compliance with the law and ethical
obligations as an officer of the court. See SCR 21.16(1m)(d)
and (e) (professional discipline may include the imposition of
conditions on the attorney's continued practice of law and the
imposition of monetary payments). It is an obvious maxim that
an officer of the court must obey the lawful orders of the
court. Accordingly, we direct Attorney Lemanski, as a condition
of his practice of law in this state, to pay the opposing
party's costs and fees in the S.K. matter in the amount of
$1,471.50, as ordered by the circuit court. We differ from the
referee's recommendation with respect to the time for Attorney
Lemanski to accomplish this payment. Attorney Lemanski has
already had almost two years to make this payment pursuant to
the circuit court's order. We therefore require him to make the
payment within the next 60 days rather than the 120-day period
recommended by the referee.
¶25 We also require Attorney Lemanski to pay the full
costs of this proceeding. There is no reason here to depart
from our general practice of imposing costs on an attorney found
to have committed professional misconduct. Although Attorney
Lemanski did admit the factual allegations and charges of
misconduct in the OLR's complaint, thereby avoiding the need for
a disciplinary hearing, he chose not to enter a stipulation
under SCR 22.12, which resulted in the OLR's drafting of a
complaint and the appointment of a referee. He should be
responsible for the associated costs of this proceeding.
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No. 2016AP684-D
¶26 Finally, we address the status of the temporary,
disciplinary, and administrative suspensions that currently are
imposed on Attorney Lemanski's license to practice law in this
state. Because this opinion resolves the matter for which we
previously imposed the temporary suspension due to Attorney
Lemanski's failure to cooperate, we now lift that temporary
suspension under SCR 22.03(4). Attorney Lemanski's license,
however, remains subject to the previous disciplinary suspension
and to the administrative suspension imposed due to his failure
to pay bar dues and assessments and his failure to complete the
trust account certification. Attorney Lemanski must complete
the necessary steps to lift all such disciplinary and
administrative suspensions before he will be entitled to
practice law in this state again.
¶27 IT IS ORDERED that David A. Lemanski is publicly
reprimanded for his professional misconduct.
¶28 IT IS FURTHER ORDERED that the November 4, 2015
temporary suspension of David A. Lemanski's license to practice
law in Wisconsin, due to his willful failure to cooperate with
the grievance investigation in this matter by the Office of
Lawyer Regulation, is lifted.
¶29 IT IS FURTHER ORDERED that the 60-day disciplinary
suspension OF David A. Lemanski's license to practice law in
Wisconsin will remain in effect until he complies with all of
the requirements for reinstatement following a disciplinary
suspension of less than six months and an order of reinstatement
is issued. See SCR 22.28(2).
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No. 2016AP684-D
¶30 IT IS FURTHER ORDERED that the administrative
suspension of David A. Lemanski's license to practice law in
Wisconsin, due to his failure to pay mandatory bar dues and his
failure to file a trust account certification, will remain in
effect until each reason for the administrative suspension has
been rectified pursuant to SCR 22.28(1).
¶31 IT IS FURTHER ORDERED that within 60 days of the date
of this order, as a condition of his practice of law in this
state, Attorney Lemanski shall pay to the opposing party in the
S.K. legal separation matter the amount of $1,471.50 in costs
and fees, as ordered by the circuit court. When the payment has
been made, Attorney Lemanski shall file with the clerk of this
court and serve on the Office of Lawyer Regulation an affidavit
attesting to the completion of the payment.
¶32 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David A. Lemanski shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$1,192.03.
¶33 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. 2016AP684-D
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