OLR v. Matthew R. Schwitzer
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2017 WI 53 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP675-D In the Matter of Disciplinary Proceedings Against Matthew R. Schwitzer, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Matthew R. Schwitzer, Respondent. DISCIPLINARY PROCEEDINGS AGAINST SCHWITZER OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: June 1, 2017 2017 WI 53 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP675-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Matthew R. Schwitzer, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JUN 1, 2017 v. Diane M. Fremgen Clerk of Supreme Court Matthew R. Schwitzer, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended ¶1 PER CURIAM. We review the report and recommendation of Referee Jonathan V. Goodman that the license of Attorney Matthew R. Schwitzer be suspended for six months for professional misconduct and that Attorney Schwitzer pay the full costs of this proceeding, which are $1,661.68 as of May 25, 2017. ¶2 After careful review of the matter, we referee's findings of fact and conclusions of law. adopt the We agree No. with the referee Schwitzer's law that a license six-month is professional misconduct. an suspension appropriate 2015AP675-D of Attorney sanction for his We further agree that the full costs of the proceeding should be assessed against Attorney Schwitzer. ¶3 Attorney Schwitzer Wisconsin in 2007. was admitted to practice He practiced in Green Bay. law in His Wisconsin law license was suspended in 2013 for failure to pay State Bar dues and failure to file required trust account certifications. His Wisconsin law license was also suspended in 2014 for failure to comply with requirements. license was cooperate continuing legal education reporting On September 25, 2014, Attorney Schwitzer's law additionally with an suspended Office of for willful Lawyer investigation concerning his conduct. failure Regulation to (OLR) His law license remains suspended. ¶4 The OLR filed a complaint against Attorney Schwitzer on April 6, 2015. On July 13, 2015 the OLR filed an amended complaint alleging five counts of misconduct. alleged that on February 4, 2014, Attorney The complaint Schwitzer convicted in Brown County of unlawful phone use – was threatens harm, in violation of Wis. Stat. § 947.012(1)(a), a Class B misdemeanor; Possession of THC, in violation of Wis. Stat. § 961.41(3g)(e), an unclassified misdemeanor; and Possession of Cocaine/Coca, in violation of Wis. Stat. § 961.41(3g)(c), an unclassified misdemeanor. Other charges relating to possession of narcotics, drug paraphernalia, and illegally prescription drugs were dismissed but read in. 2 obtained The Brown County No. 2015AP675-D circuit court withheld sentence and placed Attorney Schwitzer on two years' probation, conditioned on thirty days in jail, to run concurrently on each of the three counts. was also ordered to comply with his Attorney Schwitzer healthcare provider's recommendations, continue psychological and medical treatment, take all prescription medications, surrender a firearm, and have no contact with anyone who uses, sells, or possesses illegal drugs. ¶5 On October 20, 2014, Attorney Schwitzer fell asleep or lost consciousness while driving his car, drifted out of his lane of travel, and sideswiped another driver's car. The police officer the who interacted with Attorney Schwitzer at scene observed that Attorney Schwitzer had an unsteady balance, was shaking and sweating, his pupils were dilated, and he was having a hard time forming sentences and was slurring his words. ¶6 When the officer asked Attorney Schwitzer to turn off his car, the officer noticed there was a female passenger in the car. The female passenger was not breathing. performed CPR until Fire and Rescue arrived. The officer Fire and Rescue administered Narcan to the passenger, at which time she regained consciousness. The female passenger told a firefighter transporting her to the hospital that she had snorted heroin in Attorney searching Schwitzer's Attorney car and had Schwitzer's car, lost consciousness. officers found a Upon plastic baggie containing cocaine and a rolled up $20 bill which tested positive for cocaine. 3 No. ¶7 2015AP675-D On April 3, 2015, in Washington County circuit court, Attorney Schwitzer pled guilty and was convicted of possession of cocaine, as a party to a crime, an unclassified misdemeanor, in violation of Wis. Stat. § 961.41(3g)(c). A second count for possession of drug paraphernalia was dismissed but read in. The Washington County circuit court sentenced Attorney Schwitzer to five months in jail. ¶8 count The of OLR's amended misconduct with complaint respect to alleged the Attorney following Schwitzer's convictions: Count 1: By engaging in the conduct leading to his convictions of three misdemeanors in State v. Schwitzer, Brown County Case No. 2013 CF 1142, and one misdemeanor in State v. Schwitzer, Marinette County Case No. 2014 CF 1150, Attorney Schwitzer violated SCR 20:8.4(b).1 ¶9 The OLR's amended complaint also alleged that prior to his August 2013 arrest, Attorney Schwitzer practiced law with Attorneys Todd G. Simon and Timothy J. Feldhausen as part of the law firm Schwitzer Simon, LLC. Attorney Schwitzer and his brother, Kevan Schwitzer created a website used by the law firm. Attorney Schwitzer's partners had no control or access to the content of the website. Attorneys Simon and Following Attorney Schwitzer's arrest, Feldhausen negotiated a separation from Schwitzer Simon, LLC, which was completed in May 2014 by the 1 SCR 20:8.4(b) provides: "It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 4 No. signing of a formal separation agreement. 2015AP675-D Before the separation was complete, Attorneys Simon and Feldhausen had asked Attorney Schwitzer to remove their information from the website. A formal separation agreement signed in May 2014 required Attorney Schwitzer to remove Simon and Feldhausen's information from the website. ¶10 The website, as controlled by Attorney Schwitzer, continued to operate and be accessible by the public following Attorney 2014. Schwitzer's suspension until at least November 10, Sometime between January 4, 2014, and August 11, 2014, Attorney Schwitzer caused the website to be modified to advertise a law firm called Matthew R. Schwitzer, LLC, of which Attorney Schwitzer was the only attorney. There is no registered Wisconsin limited liability company named Matthew R. Schwitzer, LLC, or any similarly named company other than Schwitzer Simon, LLC. ¶11 that As of October 30, 2014, the website continued to state Attorney Schwitzer was admitted to practice law in Wisconsin as a member of the Wisconsin Bar Association and was also admitted to practice before the Supreme Court of Wisconsin. As of that date, the website invited website visitors to "Call today . . . for a free initial consultation." The website identified the address for Matthew R. Schwitzer, LLC, as P.O. Box 8413, Green Bay, Wisconsin 54308, which was the same address provided to the OLR by Attorney Schwitzer for communications during the OLR's investigation. 5 No. ¶12 The OLR's amended complaint the alleged 2015AP675-D following count of misconduct with respect to the website: Count 2: By causing the website to be modified to hold Attorney Schwitzer out as an attorney admitted to practice law in Wisconsin at a time when his license to practice law was suspended, Attorney Schwitzer violated SCR 20:5.5(b)(2)2 and SCR 20:7.1(a)3 ¶13 beginning The OLR's in 2013, amended the complaint OLR began to also alleged investigate that Attorney Schwitzer in connection with the criminal charges filed against him in Brown County. At Attorney Schwitzer's request, the OLR agreed to put its investigation on hold pending resolution of the Brown County criminal case. file was reopened, an Schwitzer inquiring about convictions. Attorney OLR In May 2014, after the OLR's investigator the wrote circumstances Schwitzer failed to to Attorney surrounding his respond the to investigator's initial letter, and he further failed to respond to either a second letter sent by both certified and regular mail or an order from this court requiring him to show cause in writing why this court should not grant the OLR's motion seeking 2 SCR 20:5.5(b)(2) provides: "A lawyer who is not admitted to practice in this jurisdiction shall not.. .Hold out to the public or otherwise represent that the lawyer is admitted to the practice of law in this jurisdiction." 3 SCR 20:7.1(a) provides: "A lawyer shall or misleading communication about the lawyer services. A communication is false or it...contains a material misrepresentation of omits a fact necessary to make the statement whole not materially misleading..." 6 not make a false or the lawyer's misleading if fact or law, or considered as a No. 2015AP675-D an order suspending his license to practice law for a willful failure to cooperate with the OLR's investigation concerning his conduct. granted As noted above, on September 25, 2014, this court the OLR's motion and temporarily suspended Attorney Schwitzer's law license. ¶14 The OLR's amended complaint stated the following count with respect to Attorney Schwitzer's failure to cooperate with the OLR's investigation into his conduct: Count 3: By failing to provide the information requested by the OLR's May 12, 2014 correspondence, Attorney Schwitzer violated SCR 22.03(6),4 via SCR 20:8.4(h).5 ¶15 OLR's The amended final two complaint counts arose of out misconduct of alleged Attorney in the Schwitzer's attempt to transfer funds to himself from his law firm's trust account. The amended complaint alleged that as of August 19, 2013, the date Attorney Schwitzer was arrested in Brown County, Schwitzer Simon, LLC, maintained a client trust account at BMO Harris Bank. Attorneys Schwitzer, Simon, and Feldhausen were 4 SCR 22.03(6) provides: "In the course of the investigation, the respondent's willful 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..." 5 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 22.03(2), SCR 22:03(6)..." 7 No. 2015AP675-D the only people authorized to disburse money from or otherwise access the trust account. ¶16 County On August 20, 2013, while incarcerated in the Brown Jail, Attorney Schwitzer used a fellow inmate's contraband cell phone to access the trust account and initiated a transfer of $2,000 from the trust account account belonging to Attorney Schwitzer. to a personal Attorney Simon and/or Attorney Feldhausen learned of Attorney Schwitzer's attempt to transfer trust account proceeds and caused BMO Harris Bank to reverse the transaction. In correspondence to the OLR, Attorney Schwitzer admitted attempting to transfer funds from the trust account to his personal account while incarcerated in the Brown County Jail. The OLR's investigation was unable to determine whether Attorney Schwitzer used another inmate's telephone to access the trust account by phone or whether he attempted to transfer funds contraband by using phone. disbursements from the internet Pursuant a trust to connection supreme account may through court not the rules, be made telephonically or by way of internet transactions. ¶17 The OLR's amended complaint alleged the following counts of misconduct with respect to the attempted trust account transfer: Count 4: By accessing his law firm's trust account from another inmate's contraband cell phone, Attorney Schwitzer made client and third party funds being held 8 No. 2015AP675-D in trust by his firm vulnerable to third party access, in violation of SCR 20:1.15(b)(1).6 Count 5: By attempting [in violation of SCR 20:8.4(a)7] to transfer funds to himself from his law firm's trust account by using a fellow inmate's contraband cell phone Attorney Schwitzer either attempted to make a disbursement by telephone transfer, in violation of SCR 20:1.15(e)(4)(b)8 or Attorney Schwitzer attempted to make a disbursement by internet transaction, in violation of SCR 20:1.15(e)(4)(c).9 ¶18 answer to On October the 10, amended 2016, complaint Attorney Schwitzer admitting filed virtually all an of allegations and stipulating that he be found in violation of the supreme court rules as alleged in the five counts of misconduct in the amended complaint. Attorney Schwitzer further stipulated 6 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. SCR 20:1.15(b)(1) provided: "A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third parties that is in the lawyer's possession in connection with a representation." 7 SCR 20:8.4(a) provides: "It is professional misconduct for a lawyer to...violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." 8 SCR 20:1.15(e)(4)(b) provided: "No deposits or disbursements shall be made to or from a pooled trust account by a telephone transfer of funds." 9 SCR 20:1.15(e)(4)(c) provided: "A lawyer shall not make deposits to or disbursements from a trust account byway of an Internet transaction." 9 No. 2015AP675-D that an appropriate level of discipline to impose in response to his misconduct was a six-month suspension of his license to practice law in Wisconsin. ¶19 The referee issued his report and recommendation on January 12, 2017. The referee found that the OLR had met its burden of proof by clear, satisfactory, and convincing evidence that Attorney Schwitzer committed the five counts of misconduct set forth in the OLR's amended complaint. agreed that a six-month suspension of The referee further Attorney Schwitzer's license to practice law in Wisconsin was an appropriate sanction for his misconduct. ¶20 A referee's clearly erroneous. findings of fact are affirmed unless Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. whatever sanction recommendation. it See sees In fit, re The court may impose regardless Disciplinary of the referee's Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶21 There is no showing that any of the referee's findings of fact are clearly erroneous. further agree with the Accordingly, we adopt them. referee's conclusions of law We that Attorney Schwitzer violated the supreme court rules enumerated above. ¶22 Upon careful review of the matter, we agree with the referee's recommendation for a six-month suspension of Attorney Schwitzer's license to practice law in Wisconsin. Although no two disciplinary proceedings are precisely the same, a six-month 10 No. 2015AP675-D suspension is generally consistent with the sanction imposed in somewhat analogous cases. Proceedings Against For example, in In re Disciplinary Soldon, 2010 WI 27, 324 Wis. 2d 4, 782 N.W.2d 81, an attorney who was convicted of multiple counts of retail theft and fleeing and eluding an officer, as well as failing to cooperate with the OLR's investigation conduct, received a six-month suspension. Disciplinary Proceedings Against of her In addition, in In re Meagher, 2003 WI 132, 266 Wis. 2d 18, 669 N.W.2d 733, an attorney who was convicted of violating the federal Wire Wagering Act, 18 U.S.C. § 1084, also received a six-month suspension. We find that a six-month suspension is an appropriate sanction in this case as well. We also agree that, consistent with our usual practice, Attorney Schwitzer should be required to pay the full costs of this proceeding. ¶23 IT IS ORDERED that the license of Matthew R. Schwitzer to practice law in Wisconsin is suspended for a period of six months, effective the date of this order. ¶24 IT IS FURTHER ORDERED that within 60 days of the date of this order, Matthew R. Schwitzer shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Matthew R. Schwitzer to practice law in Wisconsin shall remain suspended until further order of the court. ¶25 IT IS FURTHER ORDERED that, to the extent he has not already done so, Matthew R. Schwitzer shall comply with the 11 No. 2015AP675-D provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶26 IT IS FURTHER ORDERED that compliance with conditions of this order is required for reinstatement. all See 22.28(3).10 ¶27 Attorney IT IS FURTHER ORDERED that the temporary suspension of Matthew R. Schwitzer's Wisconsin, imposed on September failure to cooperate with the license to practice law in 25, 2014 due to his willful Office of Lawyer Regulation's investigation in this matter, is hereby lifted. 10 In addition to obtaining reinstatement from the disciplinary suspension imposed by this order, before he is able to practice law in Wisconsin, Attorney Schwitzer will also be required to complete the procedures for reinstatement from the administrative suspensions currently in effect for failure to comply with the mandatory CLE reporting requirements, for failure to pay applicable bar dues and assessments, and for failure to file a trust account certificate. 12 No. 1 2015AP675-D
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