Office of Lawyer Regulation v. Bruce B. Jacobson
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2005 WI 76 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP753-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Bruce B. Jacobson, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Bruce B. Jacobson, Respondent. DISCIPLINARY PROCEEDINGS AGAINST JACOBSON OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: June 14, 2005 2005 WI 76 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP753-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Bruce B. Jacobson, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JUN 14, 2005 v. Cornelia G. Clark Clerk of Supreme Court Bruce B. Jacobson, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. We review the findings of fact, conclusions of law and recommendation of Referee Curry First recommending reprimanded accounting that for of Attorney failing funds to Bruce provide collected and B. Jacobson one in client failing be publicly with to a full act with reasonable diligence and promptness in representing clients in a second action. No. ¶2 2004AP753-D We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law, and we agree that the appropriate reprimand. discipline for the misconduct is a public In addition, we agree with the referee that the costs of the proceeding, which are $9355 as of March 28, 2005, should be assessed against Attorney Jacobson. ¶3 Attorney Jacobson was admitted to practice Wisconsin in 1971 and practices in Milwaukee. law in His license to practice law in Wisconsin was suspended for a period of five months, effective January 27, 2005, for misconduct consisting of failing to provide his client with requested information about the status of communications account. his trust regarding account transfer and of misrepresentation fees the trust In re Disciplinary Proceedings Against Jacobson, 2004 WI 152, 277 Wis. 2d 120, 690 N.W.2d 264. five-month suspension, requirements were the imposed: the submitted by Attorney healthcare provider, Regulation (OLR), condition insofar as it period of two (1) for suspension, a reinstatement, approved concerning Attorney a semi-annual Jacobson's as In addition to the following monitoring following (2) for from in the might Jacobson's of reports by state the of his following practice Office his reporting two are psychiatrist impair years period and of to be or other of Lawyer psychological practice the years date law of law; of his shall be monitored by an OLR-approved attorney on a schedule set by the OLR; (3) for a period of two years after reinstatement Attorney 2 No. Jacobson shall provide the OLR with quarterly 2004AP753-D reports, in a manner satisfactory to the OLR, concerning his trust account record keeping. The referee in the instant case has recommended that these reporting and monitoring requirements be increased from two years to three years. We agree with that recommendation. ¶4 In March 2004, the OLR filed a complaint alleging that Attorney Jacobson engaged in professional misconduct respect to his handling of two client matters. involved Robert M. and his wife, Roxane. with The first matter In or about 1989, the couple retained the Milwaukee law firm of Hiller & Frank, where Attorney Jacobson regarding civil Robert then claims M. stipulated practiced against to law, Dennis accept an to H. represent them October 1991, In $18,000 settlement in the case, which was to be paid in installments of at least $300 per month for a period of 60 months. ¶5 The Hiller & Frank law firm dissolved in 1994, and Attorney Jacobson established a private solo practice. He continued to handle the collection of the stipulated settlement from Dennis H. Attorney Jacobson collected various amounts from Dennis disbursed H. and amounts to himself. Jacobson and Robert some amounts Robert M. and some The OLR's complaint alleged that Attorney M. disagreed concerning the collection proceeds. agreement. to The complaint on the fee arrangements There was no written fee also alleged that Robert M. never received a billing statement from Attorney Jacobson and had no idea what the fees were. In addition, Attorney Jacobson has no 3 No. 2004AP753-D billing statements or other documentation to establish that he notified Robert M. prior to making any withdrawals from the settlement proceeds. ¶6 in Robert M. filed a grievance against Attorney Jacobson October 2001. The OLR's complaint alleged that Attorney Jacobson said "the fee arrangement was changed four times, from an hourly fee, to a 1/3 fee, then to a 2/3 fee, and finally to a 3/3 fee, and that Robert M. agreed to those changes." However, Attorney Jacobson has no documentation of Robert M.'s purported assent to these changes in the fee arrangement. ¶7 Although the OLR's complaint had alleged five counts of misconduct with respect to Attorney Jacobson's handling of the Robert M. matter, the referee found that only one of those counts had been proven, that is by failing to provide Robert M. with a full accounting of the funds that he collected in the matter, despite Robert M.'s repeated requests between 1998 and 2003, Attorney Jacobson violated SCR 20:1.15(b).1 ¶8 The other misconduct alleged in the OLR's complaint involved Attorney Jacobson's handling of a medical malpractice 1 SCR 20:1.15(b) provides: (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property. 4 No. claim for Robin E. and John E. 2004AP753-D The couple retained Attorney Jacobson to represent them and their son after their son was born with severe brain damage. The couple alleged that the doctor and the hospital were negligent in treating the wife and son during the birth. ¶9 In October 1998, Attorney Jacobson filed a lawsuit against two doctors, a hospital, the couple's health insurance carrier, and the Wisconsin Patients Compensation Fund. Attorney Jacobson failed to respond to interrogatories in the case and failed to provide opposing counsel with a written list of witnesses as required by the circuit court's scheduling order. Attorney Jacobson neither sought an extension of time nor sought to amend the scheduling order. ¶10 The hospital filed a motion for summary judgment based on Attorney Jacobson's failure to name expert witnesses and his failure to comply with the scheduling order. One of the doctors also based filed Jacobson's a motion failure for to summary prosecute judgment the case. on The Attorney Wisconsin Patients Compensation Fund filed a motion to dismiss based on Attorney Jacobson's failure to prosecute and his failure to comply with the court's scheduling order. ¶11 The trial court scheduled the motions for a hearing on April 17, 2000. to June 5, 2000. The hearing date was subsequently rescheduled On May 25, 2000, Attorney Jacobson informed defense counsel that he had suffered a heart attack earlier that month and he asked that the hearing be rescheduled again. hearing was then set for July 7, 2000. 5 The The scheduling order had No. 2004AP753-D provided that the parties were to complete all discovery by June 23, 2000. Attorney Jacobson failed to conduct any discovery between April 28, 1999 and June 23, 2000. Attorney Jacobson appeared at the July 7, 2000 motion hearing and requested an adjournment so the plaintiffs could retain new counsel. ¶12 In September 2000, the plaintiffs' new attorney filed a memorandum in opposition to the motions for dismissal and an affidavit from Attorney Jacobson saying he had verbally disclosed to defense counsel that the plaintiffs would rely on testimony defense from a counsel specific of that OB/GYN and doctor's that opinions he also and advised anticipated testimony. ¶13 After a hearing on October 23, 2000, the trial court denied the defendants' motions to dismiss, but it noted Attorney Jacobson's failure to prosecute the case and said Attorney Jacobson's failure to name witnesses, itemize damages, provide a special permanency report, and conduct discovery "does strike me as egregious. see." It is thirteen months of contempt as far as I can While the trial court denied the motions to dismiss, it sanctioned the plaintiffs and limited them to one expert witness on the issue plaintiffs including Attorney to of causation. pay the reasonable Jacobson to The costs of attorney's pay court the fees. various also ordered defendants' It costs. motions, further The the ordered plaintiffs subsequently filed a malpractice suit against Attorney Jacobson, and his insurance carrier settled the claim for $990,000. 6 No. ¶14 2004AP753-D The OLR's complaint alleged, and the referee agreed, that by failing to name witnesses, failing to itemize damages, failing to provide a special permanency report, failing to respond to interrogatories, and failing to conduct discovery, Attorney Jacobson failed to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3.2 ¶15 2004. A hearing was held before the referee on November 12, The referee issued his report on March 7, 2005. While the OLR's post-hearing brief had argued for a 90-day suspension of Attorney Jacobson's license, consecutive to the five-month suspension that commenced January 27, 2005, the referee concluded that a public reprimand, coupled with increasing the two-year reporting and monitoring requirements ordered in the earlier disciplinary action to three years would appropriately serve the public protection interest. ¶16 they A referee's findings of fact are to be affirmed unless are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶29, 248 Wis. 2d 662, 636 N.W.2d 718. The record supports the referee's findings of fact and conclusions of law and we adopt them. ¶17 public We also agree with the referee's recommendation that a reprimand, along with increasing 2 the reporting and SCR 20:1.3 provides: Diligence. "A lawyer shall act with reasonable diligence and promptness in representing a client." 7 No. monitoring requiring requirements Attorney from Jacobson two to years pay to the three full 2004AP753-D years costs and of the proceeding, is an appropriate level of discipline to impose for the misconduct at issue in this case. ¶18 publicly IT IS ORDERED reprimanded that for Attorney his Bruce professional B. Jacobson misconduct is as determined in this matter. ¶19 IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Bruce B. Jacobson pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Bruce B. Jacobson to practice law in Wisconsin shall be suspended until further order of the court. ¶20 IT IS FURTHER ORDERED that for a period of three years from January 27, 2005, semi-annual reports shall be submitted by Attorney Jacobson's psychiatrist or other healthcare provider, as approved by the OLR, concerning the state of his psychological condition insofar as it might impair his practice of law. The first such report shall be filed six months after the date of his suspension. ¶21 following IT IS FURTHER ORDERED that for a period of three years the date of his reinstatement to practice law, Attorney Jacobson's practice of law shall be monitored by an OLR-approved attorney on a schedule set by the OLR. 8 No. ¶22 2004AP753-D IT IS FURTHER ORDERED that for a period of three years after his reinstatement Attorney Jacobson shall provide the OLR with quarterly reports, in a manner satisfactory to the OLR, concerning his trust account record keeping. These reports shall commence three months after the date of reinstatement. 9 No. 1 2004AP753-D
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