Office of Lawyer Regulation v. Matthew O. Olaiya
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2001 WI 116 SUPREME COURT CASE NO.: OF WISCONSIN 00-3352-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Matthew O. Olaiya, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. Matthew O. Olaiya, Respondent. DISCIPLINARY PROCEEDINGS AGAINST OLAIYA OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: October 30, 2001 2001 WI 116 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-3352-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Matthew O. Olaiya, Attorney at Law. FILED Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, OCT 30, 2001 Complainant, Cornelia G. Clark Clerk of Supreme Court v. Matthew O. Olaiya, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM referee that the license practice law in Wisconsin professional misconduct. the practice of law; We review of be the Attorney recommendation Matthew suspended for O. six of Olaiya months the to for That misconduct consists of abandoning failing to take steps to protect the interests of a client; failing to return an advance payment of a fee that has not been earned; failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed about the status of a matter; No. failing to cooperate Attorneys with the Professional investigation Responsibility of the (Board)1 00-3352-D Board in of the investigation of a grievance; failing to provide full and fair information regarding the circumstances pertaining to the alleged misconduct; failing to comply with reasonable requests for information; making a misrepresentation in a disclosure to the Board; and revealing information relating to representation of a client without the client's consent. the In addition to the license suspension, the referee recommended that Attorney Olaiya pay restitution to two clients and that he pay the costs of the proceeding. ¶2 We determine that the seriousness of Attorney Olaiya's professional misconduct warrants a six-month suspension of his license to practice law in Wisconsin and we adopt the referee's recommendations. ¶3 Attorney Wisconsin in 1984. connection with United States. Wisconsin for Olaiya was admitted to practice law in The misconduct described herein occurred in Attorney Olaiya's prolonged absence from the On or about June 25, 1999, Attorney Olaiya left an indefinite stay 1 in Lagos, Nigeria, without Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation (OLR) and the supreme court rules applicable to the lawyer regulation system were also revised. Since most of the conduct giving rise to the complaint occurred prior to October 1, 2000, the investigative body will be referred to as "the Board." However, the references to supreme court rules will be to those currently in effect unless specifically noted. 2 No. prior notice office in his August clients. briefly to 1999, Attorney in clients. again, Olaiya December 1999, January 24, 2000. He thereafter without apparently but 00-3352-D closed his prior to to his notice returned law departed the United Wisconsin States on Attorney Olaiya has not returned to Wisconsin and currently resides in Nigeria. ¶4 By April 2000, the Board had received three grievances from clients of Attorney Olaiya. A fourth grievance was filed against Attorney Olaiya on May 23, 2000. ¶5 In December 2000, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Olaiya alleging some fourteen separate violations of supreme court rules based on Attorney Olaiya's alleged professional misconduct with respect to four client matters. Attorney Olaiya filed an answer, which was later stricken for his failure to comply with a discovery order. ¶6 The first grievance involved a client who hired Attorney Olaiya to assist with obtaining a visa to enable the client's fiancée to enter the United States. Attorney Olaiya a $700 retainer. Attorney The client paid Olaiya filed the necessary documents but then told the client that he would be "on vacation" for several weeks. After Attorney Olaiya departed for Nigeria, the Department of Immigration and Naturalization Services (INS) returned the Olaiya's office indicating visa that it application required information before it could be processed. not advise his client of this 3 to some Attorney additional Attorney Olaiya did development. He made no No. arrangements to have the work done. client filed learned of the a grievance problem with the 00-3352-D Several months later the with the Board. visa application Olaiya Attorney and not did return the retainer fee. ¶7 Attorney Olaiya failed to respond to a letter from a Board staff investigator with respect to this client's case. He also failed to timely respond to a letter the Board staff sent to him by certified mail. He responded belatedly to the grievance in an e-mail message dated June 30, 2000, but his response did not address the specific allegations of misconduct. After being insufficient, notified by Attorney the Board sent Olaiya that his another response e-mail was message, maintaining that his initial response was adequate. ¶8 Olaiya The second matter involved a client who hired Attorney to file the necessary documentation to effectuate a change in the client's non-resident alien status. The client prepaid Attorney Olaiya $350 for this service. Attorney Olaiya filed the necessary documents and initially communicated with the client regarding the status of the matter. However, in mid- August 1999, the client learned that Attorney Olaiya had left the country, indefinitely. contact Attorney without success. Olaiya The regarding Attorney Olaiya client the repeatedly status failed to of tried his respond to case, to the client's messages and failed to comply with the client's request that Attorney Olaiya transfer the file to another attorney. ¶9 Attorney Olaiya failed to respond to a letter from a Board staff investigator regarding this grievance. 4 He belatedly No. 00-3352-D responded to this grievance in his e-mail message of June 30, 2000, but generally denied the client's allegations. after being notified by the Board that his Again, response to the grievance was insufficient, Attorney Olaiya sent a follow-up email maintaining that his initial response was adequate. ¶10 hired The third Attorney matter Olaiya immigration matter. to involved assist a a corporate company client employee that with an The client directed Attorney Olaiya to take the steps necessary to permit the company's employee, a Mexican citizen, to remain lawfully in the United States and employed by the company. Specifically, Attorney Olaiya was directed to extend the employee's I-94 authorization, to file a petition to extend the employee's status as a non-immigrant worker, and to help her obtain permanent resident status. Attorney Olaiya was also retained to file certain immigration documents on behalf of the employee's husband, also a Mexican citizen. Attorney Olaiya $2000 as partial prepayment The client paid for these legal services. ¶11 Attorney Olaiya failed to file any request to extend the employee's I-94 authorization. He failed to respond to the Wisconsin Department of Workforce Development's (DWD) requests for information. closed the file. Because of Attorney Olaiya's inaction, the DWD Attorney Olaiya failed to inform his client that the file was closed due to his inaction. Instead, Attorney Olaiya when asked DWD to reopen the file and, the client requested a status report, Attorney Olaiya informed the client that the DWD had "not gotten" to the case. 5 Attorney Olaiya also No. failed to respond to several other agency 00-3352-D requests for information regarding this matter and failed to respond to the client's repeated inquiries regarding the status of the matter. Eventually the client filed a grievance. ¶12 Attorney Olaiya failed to respond to a letter from a Board staff investigator requesting a response to this client's grievance. Attorney Olaiya also failed to timely respond to a subsequent investigative letter sent by certified mail. In his e-mail message to the Board dated June 30, 2000, Attorney Olaiya did not address the specific allegations of misconduct other than to generally client. Again, deny after any wrongdoing being notified with by respect to this Board that his the response to the grievance was insufficient, Attorney Olaiya sent a follow-up e-mail maintaining that his initial response was adequate. ¶13 Olaiya The fourth matter involved a client who hired Attorney to represent the application for client's sister political asylum. The with respect client paid to her Attorney Olaiya a $2500 retainer to provide representation at an asylum hearing scheduled Minnesota. for October 21, 1999, in the State of The client flew to Minnesota for the asylum hearing but no one appeared on the client's behalf and the hearing had 6 No. to canceled.2 be Attorney Olaiya failed to 00-3352-D respond to the client's follow-up telephone calls or to the client's request that Olaiya refund travel expenses. the retainer and reimburse the client's Attorney Olaiya did not return the retainer in this matter, nor did he reimburse the client for the travel expenses incurred traveling to the hearing. ¶14 By letter dated June 6, 2000, the Board notified Attorney Olaiya of the grievance filed in connection with this matter and requested a written response within twenty days. Attorney Olaiya responded in the June 30, 2000, e-mail message, claiming that he had performed all the services for which he was paid and claiming that the client was uncooperative, owed him money and had not responded to his calls or letters. The e-mail response did not address Attorney Olaiya's failure to appear at the hearing. Attorney Olaiya provided no verification for his claims that the client was uncooperative.3 After being notified by the the Board that his response to grievance was insufficient, Attorney Olaiya sent a follow-up e-mail message maintaining that his initial response was adequate. 2 Attorney Olaiya apparently commenced but failed to complete arrangements to have a Minnesota lawyer appear at the hearing. He sent an e-mail to a Minnesota attorney several months before the hearing asking if she accepted referrals. The attorney specifically requested that Attorney Olaiya contact her if he wished her to handle the matter. Months later the client's file was simply dropped off at the Minnesota attorney's office one day before the scheduled hearing. 3 Indeed, the referee later found that the cancelled check and retainer agreement demonstrated that Attorney Olaiya's claim that this client owed Attorney Olaiya money was false and misleading. 7 No. ¶15 Board's 00-3352-D Thereafter Attorney Olaiya failed to respond to the discovery requests and failed to appear for his deposition although written notice was sent to him in Wisconsin and Nigeria. Olaiya s The Board compliance filed with a motion discovery in to compel this Attorney disciplinary proceeding. ¶16 Following a hearing on the motion to compel at which Attorney Olaiya did not appear, the referee entered an order requiring Attorney Olaiya to respond to outstanding discovery requests and to appear for his deposition. advised Attorney Olaiya that his failure This order further to comply with the order without good cause would result in the issuance of an order striking his answer and causing the issuance of findings of fact and conclusions of law and a recommendation based on the allegations in the complaint. Attorney Olaiya wholly failed to comply with the order. ¶17 Attorney Olaiya did not appear at the final scheduling conference on May 29, 2001. order striking the answer Accordingly, the referee issued an and issued findings of fact and his law conclusions of law consistent with the complaint. ¶18 The referee concluded that by abandoning practice and thereby failing to protect his clients' interests upon termination of representation with respect to the first and second client, and by failing to 8 return the second client's No. advance payments of fees that had not been 00-3352-D earned, Attorney Olaiya violated SCR 20:1.16(d).4 ¶19 The referee also concluded that by failing to notify the first, third, and fourth clients of various agency demands for further information and/or the need for revisions to filed documents, Attorney Olaiya violated SCR 20:1.3.5 ¶20 The referee also found that by failing to keep the first, second, and third clients reasonably informed regarding the status of their respective legal matters, Attorney Olaiya violated SCR 20:1.4(a).6 ¶21 The referee found further that by failing to cooperate with the Board's investigation of each of the four grievances Attorney Olaiya violated (former) SCR 21.03(4).7 4 SCR 20:1.16(d) provides: (d) 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 that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. 5 SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 6 SCR 20:1.4(a) provides that "[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." 7 Former SCR 21.03(4) provided that "[e]very attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator." 9 No. ¶22 In addition, the referee found that by 00-3352-D failing to provide full and fair information regarding the circumstances pertaining to the alleged misconduct in each of the four grievances, Attorney Olaiya violated (former) SCR 22.07(2).8 ¶23 Finally the referee concluded that by causing the fourth client's file to be delivered to another attorney without the client's consent, Attorney Olaiya revealed information relating to the representation of a client without the client's consent in violation of SCR 20:1.6.9 8 Former SCR 22.07(2) provided: During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board. 9 SCR 20:1.6 provides: Confidentiality of information (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d). (b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interest or property of another. (c) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: 10 No. ¶24 00-3352-D The referee then concluded that a six-month license suspension was appropriate. The referee also recommended that Attorney Olaiya pay restitution in the amount of $700 to the first client, reflecting the retainer paid by the client for representation with respect to the fiancée visa matter, as well as $2500 to the fourth client reflecting the retainer accepted for his work in the political asylum matter plus an additional $1000 for the travel expenses incurred by the client in connection with the hearing at which Attorney Olaiya failed to appear. the The referee did not assess restitution with respect to other two clients. The referee also recommended that Attorney Olaiya pay the costs of this proceeding. ¶25 We conclusions discipline adopt of law for the and Attorney referee's determine Olaiya's findings that to be professional of the fact and appropriate misconduct. We also hold that payment of the restitution shall be treated as a condition of the reinstatement of Attorney Olaiya's license. (1) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services had been used; (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. (d) This rule does not prohibit a lawyer from revealing the name or identity of a client to comply with ss. 19.43 and 19.44, Stats. 1985-86, the code of ethics for public officials and employees. 11 No. 00-3352-D Attorney Olaiya's misconduct with respect to his handling of the four client Board's matters and investigation suspension license of his are law serious license. practice to his failure A is to cooperate failings six-month appropriate with the warranting suspension a his for discipline of his professional misconduct. ¶26 practice IT IS ORDERED that the license of Matthew O. Olaiya to law in Wisconsin is suspended for a period of six months, effective December 4, 2001. ¶27 IT IS FURTHER ORDERED that Matthew O. Olaiya comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶28 IT IS FURTHER ORDERED that Matthew O. Olaiya refund $700 to the first client, and that he refund $2500 to the fourth client. In addition, he shall reimburse the fourth client $1000 for travel expenses. If these refunds and reimbursement are not made within 60 days from the date of this order, the license of Matthew O. Olaiya to practice law in Wisconsin shall remain suspended until further order of the court. ¶29 IT IS FURTHER ORDERED that within 60 days of the date of this order Matthew O. Olaiya 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 O. Olaiya to practice law in Wisconsin shall remain suspended until further order of the court. 12 No. 1 00-3352-D
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