Office of Lawyer Regulation v. Michele A. Tjader

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2018 WI 96 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2017AP411-D 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 16, 2018 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: A.W. BRADLEY, J., dissents, joined by ABRAHAMSON, J. DALLET, J., did not participate. 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: FILED Office of Lawyer Regulation, Complainant OCT 16, 2018 v. Sheila T. Reiff Clerk of Supreme Court Michele A. Tjader, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 by PER CURIAM. Referee stipulation John We review the supplemental report filed Nicholas entered between Schweitzer, adopting the of Office Lawyer an amended 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. public reprimand is an appropriate level of 2017AP411-D 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 Wisconsin in 1996. was admitted to practice She practices in Madison. law in She has been disciplined by this court on three prior occasions. In 2002, we publicly competence, reprimanded Attorney Tjader for lack of 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 dishonesty, deceit, and misrepresentation. Proceedings Against N.W.2d 87. In Tjader 2006, 2002 Attorney WI 37, In re Disciplinary 252 Tjader involving Wis. 2d 94, received a 643 private reprimand for failing to comply with reasonable requests for information reasonably and failing necessary to to explain permit the a matter client decisions regarding the representation. 2006-2 (electronic to to the make informed Private Reprimand No. copy available at https://compendium.wicourts.gov/app/raw/001855.html). Attorney Tjader committing a received criminal act honesty, trustworthiness respects as a result intoxicated (OWI) 2014-20 – (electronic another of or that being available wicourts.gov/app/raw/002709.html). 2 as In 2014, reprimand adversely a convicted second offense. copy private reflected fitness extent lawyer of for on her in other operating while Private Reprimand No. at https://compendium. No. ¶4 This disciplinary proceeding commenced 2017AP411-D on March 7, 2017, when the OLR filed a complaint alleging that Attorney Tjader committed nine counts involving three clients.1 suspension and that of professional misconduct The OLR initially recommended a 60-day 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, appropriate. and the parties However, this agreed a public stipulation reprimand failed to was 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. 1 He recommended the court 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 the An amended stipulation was filed on May 8, 2018. amended stipulation the OLR again recommends the dismiss three of the alleged counts of misconduct. Tjader states misconduct 2 that counts, she does which not contest alleged the violations court Attorney remaining of (1) There is a reasonably ascertainable amount; were in the (3) The funds to be restored do not constitute incidental or consequential damages; and (4) The grievant's or respondent's rights in collateral proceeding will not likely be prejudiced. 4 six former The OLR's policy is to seek restitution only when: (2) The funds to be restored respondent lawyer's direct control; In a No. SCR 20:1.15(b)(4m)b3 and SCR 20:1.16(d),4 stemming 2017AP411-D 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. ¶9 The relevant facts are as follows. 2017AP411-D 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. those clients paid advance fees to Attorney Tjader. Each of 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 complaint form a basis for the discipline requested. Tjader further misconduct represents allegations; that fully she fully understands in Attorney understands the 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 the 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 2018, The referee filed a supplemental report on May 31, 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 affirmed unless clearly reviewed de novo. A referee's findings of fact are erroneous. Conclusions of law are 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. ¶13 2017AP411-D 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 follows With respect to the appropriate sanction, this court a general policy of progressive discipline. In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501. previous reprimands makes Attorney Tjader's record of three another public reprimand somewhat lenient, but we are persuaded by the referee's recommendation. ¶15 comply The referee observed that Attorney Tjader's failure to with violations SCR of 20:1.15(b)(4m)b essentially a "amounted failure to to provide technical appropriate notice to her clients" citing In re Disciplinary Proceedings Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439. light of this precedent, the referee agreed In that, notwithstanding the policy of progressive discipline, a public reprimand is appropriate here. 6 See In re Disciplinary 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 Proceedings N.W.2d 81 Against unearned Smead, (imposing misconduct of a including 2013 public failing fees); WI In re Disciplinary 19, 345 Wis. 2d 625, reprimand for seven to deposit fees counts into a 827 of 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 recommendation for a public reprimand. Attorney Tjader's disciplinary misconduct history, private reprimand. might in OLR's Consistent with Rajek, these have the matters, warranted a absent diversion her or The OLR explains that it maintained pursuit of a public reprimand, rather than private discipline, precisely because of Attorney Tjader's disciplinary history. ¶17 parties Moreover, with respect to have stipulated that restitution, although the 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. the amended stipulation, Attorney Tjader has In 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. ¶24 Attorney court ANN WALSH Tjader having imposes recommendation BRADLEY, yet of J. received three prior referee, which in In spite of reprimands, the Accepting the reprimand.1 another the (dissenting). 2017AP411-D.awb 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. per curiam, Instead, for ¶16. the I am reasons not persuaded set forth by OLR's below, I See assurance. 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 privately reprimanded in 2006 and 2014. 2 SCR 22.05(1)(c) provides that: "Upon investigation, the director may do one following: . . . Obtain the respondent's imposition of a public or private reprimand SCR 22.09." 1 in 2002, and completion of an or more of the consent to the and proceed under No. ¶27 2017AP411-D.awb I thought that we were long since past the time of addressing imposing multiple merely a OWI convictions private (a criminal reprimand. See offense) e.g., In by 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 respects.'") Attorney [an attorney's] fitness as a lawyer in other The OLR's assurance that "it carefully considered" 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 discipline need not be imposed. here, that progressive 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. ¶29 Finally, the OLR's position on 2017AP411-D.awb restitution is misguided. It places the onus for professional misconduct on the of victim that misconduct engaging in the misconduct. error of Against its ways Muwonge, in 2017 than on the attorney We recently advised the OLR of the Matter WI rather of 12, Med. ¶23, Incapacity 373 Proceedings 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 ABRAHAMSON, joins this dissent. 3 that Justice SHIRLEY S. No. 1 2017AP411-D.awb

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