Office of Lawyer Regulation v. Melinda Alfredson
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2019 WI 17 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2018AP520-D In the Matter of Disciplinary Proceedings Against Melinda Alfredson, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Melinda Alfredson, Respondent. DISCIPLINARY PROCEEDINGS AGAINST ALFREDSON OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: February 26, 2019 2019 WI 17 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP520-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Melinda Alfredson, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, FEB 26, 2019 v. Sheila T. Reiff Clerk of Supreme Court Melinda Alfredson, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM. We review the report of the referee, Attorney John Nicholas Schweitzer, recommending that the court suspend the Wisconsin law license of Attorney Melinda Alfredson for 90 days and order disciplinary proceeding. her to pay the full costs of this The referee wrote the report after Attorney Alfredson and the Office of Lawyer Regulation (OLR) entered into a stipulation concerning Attorney Alfredson's misconduct in two client matters and her failure to cooperate with the OLR's investigation into her misconduct. Neither party No. 2018AP520-D has appealed from the referee's report and recommendation, and thus our review proceeds under Supreme Court Rule (SCR) 22.17(2).1 ¶2 We agree that Attorney Alfredson's misconduct warrants a 90-day suspension. professional We further agree that Attorney Alfredson should pay the full costs of this matter, which total $2,649.59 as of November 15, 2018. No restitution was sought and none is ordered. ¶3 in 2009. days Attorney Alfredson obtained her Wisconsin law license In 2017, this court suspended her law license for 60 based on representation violations, investigation 16 counts of two and her into of misconduct clients, failure her her to arising various with See re In of trust cooperate misconduct. out her account the OLR's Disciplinary Proceedings Against Alfredson, 2017 WI 6, 373 Wis. 2d 79, 890 N.W.2d 13 ("Alfredson I"). ¶4 against In March 2018, the OLR filed the underlying complaint Attorney Alfredson. The OLR alleged that Attorney Alfredson had engaged in six counts of misconduct based on her work for 1 clients R.R. and M.T., as well as her failure 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 to No. 2018AP520-D cooperate with the OLR's investigation into her misconduct. The OLR sought a four-month suspension of Attorney Alfredson's law license. and ¶5 In mid-October 2018, following the filing of an answer the appointment of the referee, the parties executed a stipulation in which Attorney Alfredson withdrew her answer and stipulated to the factual allegations and misconduct charges of the complaint, as amended in the stipulation. Attorney Alfredson appropriate. agreed that a Both the OLR and 90–day suspension was The parties further agreed that the stipulation was not the result of plea bargaining; that Attorney Alfredson's entry into the stipulation was knowing and voluntary; and that she understood the misconduct allegations as amended by the stipulation, her right to contest those allegations, and the ramifications of her entry into the stipulation. ¶6 In late October 2018, the referee filed his report and recommendation. The referee accepted the parties' stipulation and found, based on the stipulation, that the following facts were true. Representation of R.R. (Counts 1-4) ¶7 In February 2015, R.R. and his wife divorced. R.R. was represented by counsel other than Attorney Alfredson at the time. ¶8 In approximately September 2015, R.R. hired Attorney Alfredson to represent him after he had fallen behind on certain post-divorce obligations. R.R. maintenance and attorney's fees. 3 owed his ex-wife past-due In addition, R.R. had not yet No. 2018AP520-D attempted to sell a boat that he and his ex-wife had owned during their marriage, even though the divorce judgment required that the boat be placed on the market for sale. ¶9 In mid-October 2015, a family court commissioner found R.R. in contempt and imposed a $2,405.95 purge condition. ¶10 On October 20, 2015, R.R. informed Attorney Alfredson that he had sold the boat for $7,500. Attorney Alfredson and R.R. agreed that the proceeds from the sale would be deposited into Attorney Alfredson's trust account; that the proceeds would be used to pay the $2,405.95 purge amount; and that the remainder of the proceeds ($5,094.05) would be held in trust pending payoff documentation for the boat, of for receipts for storage and the bank which R.R.'s ex-wife was partially responsible. ¶11 Attorney Alfredson proceeds into a trust account. never deposited the boat sale Rather, on October 22, 2015, she deposited the check that R.R. had received for the boat in a non-trust account held by the law firm where she worked at the time. Attorney Alfredson subsequently transferred a portion of the funds to a second non-trust account held by the firm, and transferred another portion of the funds to a third non-trust account held by the firm. ¶12 In November 2015, Attorney Alfredson provided R.R.'s ex-wife's lawyer with a check, drawn from one of these non-trust accounts, for the $2,405.95 purge amount. Attorney Alfredson also used some of R.R.'s funds for her own personal use. 4 No. ¶13 2018AP520-D In April 2016, R.R. terminated Attorney Alfredson and retained a new lawyer. In a May 9, 2016 letter to R.R., Attorney Alfredson agreed to forward the remaining proceeds from the boat sale to R.R.'s new lawyer. Later in May 2016, Attorney Alfredson provided the OLR with a carbon copy of a purported check that she allegedly wrote to R.R.'s new lawyer in the amount of the boat sale proceeds left after the $2,405.95 purge payment; i.e., $5,094.05. ¶14 In early June 2016, the circuit court ordered that $5,000 of the proceeds from the boat sale were to be paid to R.R.'s ex-wife's lawyer within ten business days. In mid-June 2016, R.R.'s ex-wife's lawyer wrote R.R.'s new lawyer, inquiring about the status of the $5,000 payment and stating that "Attorney Alfredson advises that she sent the monies from her trust to you." Attorney Alfredson was copied on this letter. In response, R.R.'s new lawyer wrote Attorney Alfredson to say that she had Alfredson. October not received any trust funds from Attorney Almost four months after receiving this letter, in 2016, Attorney Alfredson delivered made payable to R.R.'s ex-wife's lawyer. a $5,094.95 check The check was drawn from a non-trust account. ¶15 In April 2016, R.R. filed a grievance with the OLR against Attorney Alfredson. In mid-July 2016, the OLR notified Attorney Alfredson of the investigation of R.R.'s grievance and requested certain information and records from her. respond. 5 She did not No. ¶16 In August 2016, the OLR sent Attorney 2018AP520-D Alfredson a second request for information and records via certified mail. Although Attorney Alfredson signed the return receipt for the letter, she did not respond. ¶17 In early September 2016, the OLR personally served Attorney Alfredson with a letter in which it threatened to move for a temporary license suspension for failure to cooperate with its investigation. letter response In late September 2016, the OLR received a from Attorney Alfredson to R.R.'s grievance. Attorney Alfredson failed to disclose in her letter that there was any issue with respect to the delivery of the remaining proceeds from the boat sale. ¶18 In April 2017, Attorney Alfredson wrote a letter to the OLR stating that in May 2016, she had sent a $5,094.05 check to R.R.'s new lawyer, but she stopped payment on the check when that lawyer informed her that she had never received the check. ¶19 Alfredson In May 2017, requesting the OLR sent additional a letter information to and Attorney documents. Attorney Alfredson did not respond. ¶20 reminding In June 2017, the OLR wrote Attorney Alfredson again, her of her duty to cooperate. In a July 2017 telephone conversation with OLR staff, Attorney Alfredson stated that her response was in the mail and that she would fax a copy of the response to the OLR. The OLR received nothing from Attorney Alfredson. ¶21 In August 2017, the OLR personally served Attorney Alfredson with a letter in which it threatened to move for a 6 No. 2018AP520-D temporary license suspension for failure to cooperate with its investigation. In late August 2017, the OLR received Attorney Alfredson's faxed response to the OLR's May 2017 letter. Representation of M.T. (Counts 5-6) ¶22 In October 2015, M.T. represent him in a divorce. Alfredson, property M.T.'s items wife's that her hired Attorney Alfredson to In a May 9, 2016 letter to Attorney lawyer client identified wanted to certain retrieve personal from the marital residence but that M.T. had allegedly prevented her from retrieving. Attorney Alfredson with M.T. regarding this issue. did not directly communicate M.T.'s wife moved for contempt based on M.T.'s failure to return some of the items on the personal property list. ¶23 In June 2016, M.T. retained a new lawyer. That same month, M.T.'s new lawyer asked Attorney Alfredson to provide him with M.T.'s file as soon as possible. that request with numerous written His office followed-up requests and phone calls asking for the file. Attorney Alfredson did not provide M.T.'s file 2016, until September over three months after the new lawyer's initial request for the file. ¶24 The referee reviewed the complaint and stipulation and concluded that, in connection with her work for R.R. and M.T., Attorney Alfredson had committed misconduct: 7 the following forms of No. • Count One: 2018AP520-D By failing to hold R.R.'s funds in trust, Attorney Alfredson violated SCR 20:1.15(b)(1).2 • Count Two: By failing to promptly deliver funds that she collected in connection with her representation of R.R. to R.R.'s violated ex-wife's former lawyer, Attorney Alfredson SCR 20:1.15(d)(1), and SCR 20:1.15(e)(1).3 • Count Three: By converting R.R.'s funds that she received in connection with her representation of R.R. 2 SCR 20:1.15(b)(1) provides: A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation. All funds of clients and 3rd parties paid to a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts. 3 By S. Ct. Order 14-07, 2016 WI 21 (issued Apr. 4, 2016, eff. July 1, 2016) former SCR 20:1.15(d)(1) was renumbered as SCR 20:1.15(e)(1). The text of the rule was not changed. Former SCR 20:1.15(d)(1) and current SCR 20:15(e)(1) provide: Upon receiving funds or other property in which a client has an interest, or in which the lawyer has received notice that a 3rd party has an interest identified by a lien, court order, judgment, or contract, the lawyer shall promptly notify the client or 3rd party in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, the lawyer shall promptly deliver to the client or 3rd party any funds or other property that the client or 3rd party is entitled to receive. 8 No. 2018AP520-D for her own personal use, Attorney Alfredson violated SCR 20:8.4(c).4 • Count Four: By failing to timely provide the OLR with a written response to R.R.'s grievance, and by failing to timely provide the OLR with a response to the OLR's additional request for information, Attorney Alfredson violated SCR 22.03(2),5 enforced via SCR 20:8.4(h).6 • Count Five: personal By property failing to address issue set forth with in M.T. his the wife's 4 SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 5 SCR 22.03(2) provides: 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 SCR 20:8.4(h) provides: "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)." 9 lawyer's May 9, 2016 letter, No. 2018AP520-D Attorney Alfredson violated SCR 20:1.3.7 • Count Six: By failing to timely deliver M.T.'s case file to successor counsel, Attorney Alfredson violated SCR 20:1.16(d).8 ¶25 He The adopted, referee then without considered analysis, appropriate the OLR's discipline. reasoning recommendation set forth in its sanction memorandum. and In that memorandum, the OLR discussed certain cases that, in its view, justified a 90-day suspension period. See In re Disciplinary Proceedings Against Briggs, 2014 WI 119, 358 Wis. 2d 493, 861 N.W.2d 528 (90-day suspension for lawyer with no prior discipline who committed 12 counts of misconduct); see also In re Disciplinary Proceedings Against Woods, 2008 WI 79, 311 Wis. 2d 213, 751 N.W.2d 840 (90-day suspension for lawyer with an extensive disciplinary history who committed four counts of 7 SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client." 8 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 been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 10 No. misconduct). 2018AP520-D The OLR also discussed various aggravating and mitigating factors. On the aggravating side of the scale, the OLR noted that Alfredson has a disciplinary history, converted client funds for personal use, and engaged in misconduct with a pattern of neglect, dishonesty, and failure to cooperate. the mitigating Alfredson's side "lack acknowledgement of of the of scale, substantial her the legal misconduct, and OLR noted Attorney experience," her On her provision of "confidential information to OLR regarding family and medical issues which affected her ability to practice law during the time period in question." ¶26 Ultimately, the referee accepted the parties' stipulated discipline and recommended a 90-day suspension. He also recommended that Attorney Alfredson be held responsible for all the costs of this disciplinary proceeding, which total $2,649.59 as of November 15, 2018. ¶27 No appeal was filed, so we review this matter pursuant to SCR 22.17(2). We will affirm the referee's findings of fact unless they are clearly erroneous. de novo. We review conclusions of law See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We may impose whatever the sanction recommendation. we See see In fit, re regardless Disciplinary of referee's Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶28 of There is no showing that any of the referee's findings fact, erroneous. based on the parties' stipulation, Accordingly, we adopt them. 11 are clearly We also agree with the No. 2018AP520-D referee's legal conclusions that Attorney Alfredson violated the supreme court rules noted above. ¶29 The central issue for this court is whether a suspension greater than the 90-day recommended suspension is in order. Our concern over the length of suspension is prompted by our February 2017 decision in Alfredson I, in which we noted that the 60-day suspension we imposed was "modest" given the facts at hand, and cautioned that a longer suspension would have been in order disciplined. Attorney severe had Alfredson Alfredson sanctions misconduct," Attorney and I, 373 "that the when an we Alfredson been previously Wis. 2d 79, ¶35. We court may attorney imposed the impose engages stipulated warned progressively in 60-day repeated suspension "with the expectation that Attorney Alfredson will not commit future misconduct subjecting her to additional discipline." Id. Attorney Alfredson is now back before us——and, troublingly, the facts show that she failed to cooperate with the OLR's investigation regarding her representation of R.R. even after the February 2017 issuance of Alfredson I. ¶30 "This court has long adhered to the concept progressive discipline in attorney regulatory cases." of In re Disciplinary Proceedings Against Netzer, 2014 WI 7, ¶49, 352 Wis. 2d 310, 841 N.W.2d 820. The question for us here is whether moving from a 60-day suspension to the recommended 90day suspension constitutes a sufficiently serious step in the progressive discipline process. 12 No. ¶31 2018AP520-D On these facts, we conclude the answer is yes——though it is a close call. The closeness of the call stems from the weakness of certain mitigating circumstances identified by the OLR in its sanction memorandum——which, again, endorsed in its entirety without analysis. Attorney Alfredson's "lack of referee The OLR stated that substantial should count as a mitigating factor. the legal experience" But Attorney Alfredson was admitted to the bar in 2009, and the misconduct in this case occurred years later, in 2015 through much of 2017. By this time, Attorney Alfredson was not a brand-new lawyer. the ethical principles she violated are not Moreover, elusive: hold client funds in trust; do not spend them on personal matters; pay client funds owed to third parties promptly; communicate with clients diligently; cooperate with the OLR, etc. Even the greenest lawyer is charged with knowledge of these basic rules. Surely Attorney Alfredson, with multiple years of experience under her belt, should have known better. ¶32 statement We in also cannot its sanction assign any memorandum weight that to the Attorney OLR's Alfredson provided "confidential information" to the OLR regarding "family and medical issues which affected her ability to practice law during the time period in question." no evidence in the record regarding Problematically, there is the nature of Attorney Alfredson's alleged family and medical issues, or their possible nexus to her misconduct. The parties' stipulation provides no details, and the issues went unaddressed by the referee. Thus, nothing stands behind the assertion that Attorney Alfredson's 13 No. 2018AP520-D family and medical issues should partially excuse her misconduct except the parties' own say-so. That is not enough. See In re Disciplinary Proceedings Against Davig Huesmann, 2018 WI 114, ¶40, 385 lawyer's Wis. 2d 49, personal and ___ N.W.2d ___ substance abuse (declining problems to as consider mitigating factors absent a "showing in [the] record that those problems were the cause of her professional misconduct"); In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137, (1997) ("Absent a causal connection between an attorney's medical condition and that attorney's professional misconduct, the medical condition may not be considered a factor mitigating either the seriousness of the misconduct or the severity of discipline to be imposed for it.") ¶33 Nevertheless, we conclude that a 90-day suspension of Attorney Alfredson's law license is sufficient to impress upon her the seriousness of her professional duties and to deter her and others from engaging in similar misconduct. presence of certain mitigating factors. endeavor misconduct. She also entered into a stipulation that resolves disciplinary rectify proceeding, the Attorney Alfredson did, ultimately, this to We note the consequences wherein she of her explicitly acknowledged that her misconduct caused harm and that she was wrong for failing to cooperate with the OLR's investigation. In addition to these mitigating factors, we note that a roughly analogous case, In re Disciplinary Proceedings Against Wood, 2014 WI 116, 358 Wis. 2d 472, 854 N.W.2d 844, provides support for a 90-day suspension. See id. (imposing a 90-day suspension 14 No. 2018AP520-D on a respondent-lawyer who had been suspended the previous year in his first disciplinary matter, and who stipulated to seven misconduct counts, including failing to keep a client informed of the various case status, trust failing account to cooperate violations). We with the impose OLR, this 90-day suspension with the same caveat that we gave in Alfredson I: expect that misconduct, Attorney and should Alfredson this will expectation not be commit and we future disappointed, our progressive discipline system will await. ¶34 impose As is our normal practice, we find it appropriate to the full costs Attorney Alfredson. ¶35 of this disciplinary proceeding on See SCR 22.24(1m). Finally, as to restitution, none was sought and none is ordered. ¶36 IT IS ORDERED that the license of Melinda Alfredson is suspended for a period of 90 days, effective April 9, 2019. ¶37 IT IS FURTHER ORDERED that within 60 days of the date of this order, Melinda Alfredson shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $2,649.59 as of November 15, 2018. ¶38 IT IS FURTHER ORDERED that Melinda Alfredson shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶39 IT IS FURTHER ORDERED that compliance with conditions of this order is required for reinstatement. SCR 22.28(2). 15 all See No. 1 2018AP520-D
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