Office of Lawyer Regulation v. Patrick S. Sweeney
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2019 WI 13 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP1370-D In the Matter of Disciplinary Proceedings Against Patrick S. Sweeney, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Patrick S. Sweeney, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST SWEENEY OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: February 19, 2019 2019 WI 13 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP1370-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Patrick S. Sweeney, Attorney at Law: Office of Lawyer Regulation, FILED Complainant-Respondent, FEB 19, 2019 v. Sheila T. Reiff Clerk of Supreme Court Patrick S. Sweeney, Respondent-Appellant. ATTORNEY disciplinary proceeding. Attorney's license revoked. ¶1 PER CURIAM. referee, James license to professional C. We Boll, practice law misconduct. review that Attorney should The the be referee recommendation Patrick revoked also S. due of the Sweeney's to his recommended that Attorney Sweeney be ordered to pay restitution consistent with the terms of an order imposed in a related criminal matter, and pay the costs of this proceeding which are $10,338.75 as of No. August 17, 2018. 2015AP1370-D Attorney Sweeney opted not to pursue an appeal of the referee's report and recommendation.1 ¶2 We adopt the referee's findings of fact and conclusions of law and agree that the seriousness of Attorney Sweeney's professional misconduct warrants the revocation of his law license. We further agree that he should pay restitution, as recommended by the referee, and that he should pay the costs of this proceeding. ¶3 Attorney Wisconsin in 1992. Sweeney was admitted to practice He practiced in the Madison area. law in He has not previously been subject to professional discipline but his law license is presently administratively suspended for failing to pay state bar dues and failing to certify his compliance with trust account record keeping requirements. ¶4 (OLR) On filed Sweeney July a 10, 2015, disciplinary committed five the Office complaint counts of of Lawyer alleging professional seeking revocation of his law license. Regulation that Attorney misconduct and Attorney Sweeney filed an answer and this court appointed Referee James C. Boll. ¶5 times. The disciplinary proceeding was adjourned several On January 6, 2017, after Attorney Sweeney was indicted on related criminal charges, the referee determined there was 1 Attorney Sweeney initially filed a timely notice of appeal of the referee's recommendation. However, on December 10, 2018, Attorney Sweeney advised the court that he would not pursue his appeal. Accordingly, the court considers this matter as a review of the referee's report under SCR 22.17(2). 2 No. cause to defer the matter pending federal criminal prosecution. resolution 2015AP1370-D of the related See United States v. Sweeney, No. 16-CR-103 (W.D. Wis. 2017); SCR 22.41. ¶6 The federal indictment alleged that from March 2007 until March 2011, Attorney Sweeney devised a scheme to defraud three limited liability companies in which he held a member's ownership interest. Attorney Sweeney approached the co-members of the companies and proposed that the companies loan $105,000 to $115,000 to a friend of Attorney Sweeney. purportedly secured by a home mortgage. The loan was Attorney Sweeney did not loan the money to his friend, but instead converted the funds to his own use. ¶7 checks The indictment totaling alleged approximately checking accounts. that Attorney $420,000 on Sweeney the drew companies' When asked for the original promissory note, Attorney Sweeney provided a false document bearing the forged signature of his friend. February 14, 2013, The indictment also alleged that on Sweeney made a false declaration in a bankruptcy matter when he submitted a sworn "List of Creditors" that falsely listed the embezzled funds as "loans to debtor" in an effort to obtain a discharge in bankruptcy of his obligation to repay the funds he had embezzled. Finally, the indictment alleged that in March 2011, Attorney Sweeney committed identify theft during and in relation to the alleged scheme to defraud. ¶8 Attorney Sweeney ultimately entered a guilty plea to Count Two, the bankruptcy charge. federal court sentenced Attorney 3 On November 17, 2017, the Sweeney to five years of No. 2015AP1370-D probation, with the first year on home confinement, and ordered him to pay restitution of $481,970. See Sweeney, 16-CR-103 (W.D. Wis. 2017). ¶9 hearing, Shortly after Referee Boll disciplinary advised Attorney scheduled proceeding. the referee On that Sweeney's a status January Attorney 22, federal sentencing conference 2018, Sweeney had in the this parties agreed to stipulate to the underlying counts of the disciplinary complaint and that both parties would submit briefs on the question of the appropriate sanction. ¶10 On January 31, 2018, the parties executed a stipulation in which Attorney Sweeney withdrew his answer and pled no contest to each of the five allegations of misconduct alleged in the OLR's disciplinary complaint. that the disciplinary complaint, the The parties agreed record in the federal criminal prosecution, and the terms of the stipulation could serve as the factual basis for the referee's factual findings and determination of misconduct. ¶11 In the stipulation, Attorney Sweeney stated that he understood the misconduct allegations, his rights to contest the misconduct allegations and the factual basis for them, that his entry into this stipulation was made knowingly, voluntarily, without coercion, and without the benefit of any negotiations for a reduction in either charges or sanctions in this matter. He stipulated that his entry into the stipulation represents his admission to all of the misconduct complaint. 4 charged in the OLR's No. ¶12 Both sanctions. Attorney parties The Sweeney OLR filed briefs maintains requested a that on the revocation one-year 2015AP1370-D question is suspension of warranted. of his law license. ¶13 On July 30, 2018, Referee Boll filed a report, stating that based on the record he found by clear, satisfactory, and convincing evidence, that Attorney Sweeney violated the rules of professional conduct as alleged. We summarize that professional misconduct here. ¶14 2013, First, while the his parties law license stipulated was that on December administratively 9, suspended, Attorney Sweeney filed an answer on behalf of a defendant in a pending civil University v. proceeding. The See Consciousness Circuit Court, No. 2013CV3383. Board of Project, Regents Inc., of Dane the County The referee concluded that by appearing on behalf of the defendant and thereafter filing an answer, affirmative defense, and counterclaims in the case during the period of time his license was suspended, Attorney Sweeney violated SCR 10.03(6)2 and former SCR 20:1.15(i)(4),3 enforced via SCR 20:8.4(f)4 (Count One). 2 SCR 10.03(6) provides: Penalty for nonpayment of dues. If the annual dues or assessments of any member remain unpaid 120 days after the payment is due, the membership of the member may be suspended in the manner provided in the bylaws; and no person whose membership is so suspended for nonpayment of dues or assessments may practice law during the period of the suspension. 5 No. ¶15 that by 2015AP1370-D Next, the parties stipulated and the referee concluded drafting a Promissory Note to the Fairview Entities while he served as its managing member and had in the past represented the Fairview Entities, and thereafter by signing his friend's name guaranteeing and to the signing Promissory the Note, Promissory then Note as personally guarantor, Attorney Sweeney violated SCR 20:1.7(a)(2)5 (Count Two). 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, 2016 WI 21 (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(i)(4) provided: The failure of a state bar member to file the certificate is grounds for automatic suspension of the member's membership in the state bar in the same manner provided in SCR 10.03(6) for non payment of dues. The filing of a false certificate is unprofessional conduct and is grounds for disciplinary action. 4 SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers." 5 SCR 20:1.7(a)(2) provides: Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or (continued) 6 No. ¶16 2015AP1370-D The parties stipulated and the referee concluded that by misappropriating funds of the Fairview Entities for his own personal use, Attorney Sweeney violated SCR 20:8.4(c)6 (Count Three). ¶17 The parties stipulated and the referee concluded that by representing to other members of the Fairview Entities, while he served as its managing member, that the Fairview Entities had provided loans to his friend when in fact, the loan funds were dispersed to him for his own personal use without the knowledge or authorization of the other members, Attorney Sweeney again violated SCR 20:8.4(c) (Count Four). ¶18 Finally, the parties stipulated and the referee concluded that by failing to pay filing fees in the bankruptcy case, even after receiving orders from the U.S. Bankruptcy Court Clerk ordering him to do so, Attorney Sweeney violated SCR 20:3.4(c)7 (Count Five). ¶19 five After making a determination of misconduct as to all counts summarized above, the referee appropriate discipline for Attorney Sweeney. a third lawyer. person or by a personal evaluated the Attorney Sweeney interest of the 6 SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 7 SCR 20:3.4(c) provides: "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 7 No. 2015AP1370-D had argued that a one-year suspension of his law license would suffice, asserting that he was not dishonest and did not have selfish motives. He mitigating factors. The previous discipline Attorney Sweeney's mitigating factors. urged was the referee referee one request consider agreed that mitigating that to the the factor, referee several absence but of rejected consider other As the referee observed, Attorney Sweeney sought to introduce facts beyond the scope of the agreed upon record, and also failed to explain how these factors relate to his admitted misconduct. ¶20 a The referee rejected Attorney Sweeney's argument that one-year Attorney suspension Sweeney's was adequate. apparent He perception was that not he swayed was by treated harshly by the federal court, and observed that Attorney Sweeney provided no Wisconsin case law to support his proposal. ¶21 The misconduct was revocation. Sweeney's referee of a Indeed, conduct was determined very that serious the referee even more Attorney nature that concluded egregious Sweeney's warranted that than the Attorney conduct described in the cases offered by the OLR in support of its request for revocation. See, e.g., In re Disciplinary Proceeding Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999) (suspending lawyer for two years for converting $11,000 from a sale of a client's house to pay her own personal expenses); In re Disciplinary Proceeding Against Carter, 2014 WI 126, 359 Wis. 2d 70, 856 N.W.2d 595 (suspending lawyer for three years for converting approximately $72,000 of client's funds held in 8 No. trust and attempting Disciplinary Proceeding Wis. 2d 589, 707 to conceal Against N.W.2d 146 the conversion); Krombach, (revoking 2015AP1370-D 2005 WI lawyer's In re 170, 286 license for engaging in a series of conversions of a client's trust funds and for making inaccurate misleading accounting representations to the OLR). and The providing referee an further recommends that we order Attorney Sweeney to comply with the restitution order imposed against him in the federal criminal case, and order Attorney Sweeney to pay the costs of this proceeding. ¶22 The OLR did not appeal from the referee report, and, as mentioned earlier, Attorney Sweeney opted not to pursue an appeal. Accordingly, this court's review proceeds pursuant to SCR 22.17(2).8 In conducting our review, we will affirm the referee's findings of fact unless they are found to be clearly erroneous, and we will review the referee's conclusions of law on a de novo basis. See In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. may impose 8 whatever sanction we see fit regardless of 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. 9 We the No. referee's recommendation. 2015AP1370-D See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶23 Based upon our review of the record, we accept the referee's findings and conclusions of law in this matter and agree that Attorney professional Sweeney misconduct, as committed alleged. the We five counts of that the determine seriousness of Attorney Sweeney's misconduct demonstrates that his law license must be revoked to protect the public, courts, and legal system from the repetition of the misconduct; to impress upon Attorney Sweeney the seriousness of his misconduct; and to deter misconduct. other attorneys from engaging in similar We further accept the referee's recommendation that we order Attorney Sweeney to comply with the restitution order imposed on him in the federal court in the amount of $481,970, and we impose the full costs of this disciplinary proceeding on Attorney Sweeney. ¶24 IT IS ORDERED that the license of Patrick S. Sweeney to practice law in Wisconsin is revoked, effective the date of this order. ¶25 IT IS FURTHER ORDERED that Patrick S. Sweeney shall comply with the restitution order imposed on him in United States v. Sweeney, 16-CR-103 (W.D. Wis. 2017), in the amount of $481,970. ¶26 IT IS FURTHER ORDERED that within 60 days of the date of this order Patrick S. Sweeney pay to the Office of Lawyer Regulation the costs of this disciplinary proceeding, which are $10,338.75 as of August 17, 2018. 10 No. ¶27 2015AP1370-D IT IS FURTHER ORDERED that Patrick S. Sweeney comply with the provisions of SCR 22.26 concerning the duties person whose license to practice law has been revoked. 11 of a No. 1 2015AP1370-D
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