Office of Lawyer Regulation v. Robert L. Sherry
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2003 WI 123 SUPREME COURT CASE NO.: OF WISCONSIN 03-0263-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Robert L. Sherry, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Robert L. Sherry, Respondent. DISCIPLINARY PROCEEDINGS AGAINST SHERRY OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: August 13, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: ROGGENSACK, J., did not participate. 2003 WI 123 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 03-0263-D STATE OF WISCONSIN IN SUPREME COURT : In the Matter of Disciplinary Proceedings Against Robert L. Sherry, Attorney at Law: FILED Office of Lawyer Regulation, AUG 13, 2003 Complainant, v. Cornelia G. Clark Clerk of Supreme Court Robert L. Sherry, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM. We review the stipulation filed by Attorney Robert L. Sherry and the Office of Lawyer Regulation No. 03-0263-D (OLR) pursuant to SCR 22.12.1 On January 29, 2003, the OLR filed a alleging complaint in this court misconduct against Attorney Sherry. 21 separate Sherry did counts not file of an answer but instead, he and the OLR filed a stipulation in which Sherry admitted the facts and misconduct as alleged in the OLR's complaint and agreed to the level of discipline the OLR sought in this disciplinary matter a nine-month suspension of Sherry's license to practice law in this state, and an order requiring Sherry to make restitution to Mohamad Khan in the amount of $102, and to Jessica Gall in the amount of $450. ¶2 We approve the stipulation and adopt the stipulated facts and conclusions regarding Sherry's 21 counts of misconduct as alleged in the OLR's complaint. We determine that the seriousness of Attorney Sherry's misconduct warrants suspension of his license to practice law for a period of nine months. We also agree that he should be required to make restitution to his clients in the amounts stipulated. ¶3 in Attorney Robert L. Sherry was admitted to practice law Wisconsin in 1984. His 1 license was subsequently Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation and the supreme court rules applicable to the lawyer regulation system were also revised in part. Some of the conduct underlying this case arose prior to October 1, 2000. However, the complainant in this case will be referred to as the OLR. All references to supreme court rules will be to the current version of the supreme court rules unless otherwise noted. 2 No. 03-0263-D administratively suspended on June 6, 2001, for noncompliance with CLE requirements; then on October 30, 2001, his license was temporarily suspended for his failure to cooperate with an OLR grievance investigation. ¶4 court, In the it was OLR's alleged Sherry's license remains suspended. disciplinary that complaint Attorney separate counts of misconduct. Sherry filed had in this committed 21 Those counts involved Sherry's representation of several clients as well as Sherry's failure to timely file personal income tax returns and failure to cooperate with the OLR in its investigations. Sherry now admits to the facts as alleged in the OLR complaint. Briefly summarized the allegations are these: I. REPRESENTATION OF WILLIAM EISEMAN COUNTS ONE THROUGH SIX ¶5 The OLR complaint alleged, and Sherry now stipulates, that in late 1998 and 1999 Sherry represented William Eiseman, a real estate owner/manager in several eviction actions. In one such action Eiseman's commercial tenant successfully contested the claimed breach dismissed. that lease and that eviction complaint was Eiseman then gathered additional evidence concerning commercial Sherry of agreed tenant's to file alleged another breaches eviction of the action lease against and her. Subsequently, Eiseman repeatedly attempted to reach Sherry to determine the status of that second eviction action but Sherry failed to return Eiseman's calls or voice mail messages. ¶6 Sherry later informed Eiseman that he had commenced a new action against that commercial tenant and that a return date had been scheduled but then, according to Sherry, it had been 3 No. adjourned. 03-0263-D Ultimately, Sherry admitted to Eiseman that he had not taken any further action to evict that commercial tenant. ¶7 Sherry had also been asked by Eiseman eviction action against a residential tenant. to file an Again, Sherry informed Eiseman that the eviction action had commenced and that a return date had been scheduled, only to subsequently inform Eiseman that the return date had been adjourned. Sherry assured Eiseman that a writ of In August 1999 restitution had been issued with respect to that residential tenant; however, when pressed by Eiseman about that writ, Sherry admitted that he had not obtained one. Sherry promised Eiseman that he would then commence an eviction action against that residential tenant and secure the writ. Eiseman later contacted the clerk of court's office and discovered that no action against that tenant had been filed. ¶8 In September of 1999 Eiseman repeatedly asked Sherry to transfer the eviction files to his new attorney. Sherry told the new attorney that he would bring the files to his office that day but never did so. ¶9 When the subpoenaed Sherry Eiseman's eviction interview the OLR's for an interview files, committee district Sherry again investigative and failed asked asked to Sherry him do committee to so. to produce At the produce and surrender the eviction files and Sherry agreed to locate them and provide them to the OLR. investigative committee A second written request from the reminded 4 Sherry of his promise to No. 03-0263-D produce the files but Sherry did not produce the files nor did he respond in any way to that second request. ¶10 During the OLR's subsequent investigation of Eiseman's grievance against Sherry it was discovered that Sherry's license to practice law had been administratively suspended on June 6, 2001, for his noncompliance with the mandatory CLE requirements. The OLR staff requested information from Sherry concerning this administrative suspension and then granted Sherry's request for an extension to respond to that inquiry until July 2, 2001. After receiving no response from Sherry, the OLR sent follow-up correspondence but again Sherry did not respond. ¶11 Sherry In August 2001 the OLR staff sent two final letters to by certified mail and personal service requesting a response and informing him that if the OLR did not receive a response by August 23, 2001, it would seek a suspension of Sherry's license under SCR 22.03(4) for his failure to cooperate in the OLR investigation. Sherry again requested an extension which the OLR granted until August 29, 2001. failed to respond. pursuant to SCR However, Sherry On October 30, 2001, at the OLR's request, 22.21(2), this court temporarily suspended Sherry's license to practice law in this state for his failure to cooperate with the investigation. ¶12 This course of conduct resulted in Counts One through Six in the OLR's complaint. Those counts of misconduct to which Sherry now stipulates are: A. Count One 5 No. ¶13 Eiseman's By failing to commercial initiate tenant, an eviction Sherry failed 03-0263-D action to against act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. B. Count Two ¶14 Eiseman's By failing to residential initiate tenant, an eviction Sherry failed action to against act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. C. Count Three ¶15 By informing Eiseman that an eviction action had been filed against the commercial tenant and that a court date had been scheduled and adjourned when, in fact, no action had been filed, Sherry engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). D. Count Four ¶16 By informing Eiseman that an eviction action had been filed against the residential tenant, that a court date had been scheduled, and that a writ of restitution had been issued when in fact no action had been filed, Sherry engaged in conduct involving dishonesty, fraud, deceit violation of SCR 20:8.4(c). 6 or misrepresentation, in No. 03-0263-D E. Count Five ¶17 By failing to deliver Eiseman's files to successor counsel, Sherry failed to surrender papers and property to which a client is entitled, in violation of SCR 20:1.16(d). F. Count Six ¶18 By failing to respond to correspondence from the OLR in the investigation in this matter and by failing to provide the eviction files to the OLR district committee investigator, Sherry failed to cooperate with the OLR in the investigation of this matter, in violation of SCR 21.15(4). II. TAX RETURNS COUNTS SEVEN AND EIGHT ¶19 The OLR complaint further alleged, and Sherry now stipulates, that on July 10, 2000, the Internal Revenue Service (IRS) informed the OLR that Sherry had failed to file quarterly payroll tax returns for July 1, 1997, through September 30, 1999, and that he had failed to file individual tax returns for the years 1997 and 1998. Subsequently, Sherry did not respond to the two certified letters OLR written response to the IRS report. OLR sent Sherry a third letter sent to him requesting a On January 25, 2001, the requesting a response. On February 5, 2001, Sherry wrote to the OLR reporting that he was "in the process of finalizing returns for overdue tax filings" and that he anticipated the returns would be completed within 28 days. ¶20 Subsequently, Sherry failed to respond to the OLR's telephone messages. After another certified letter on April 2, 2001, Sherry agreed to meet with the OLR staff on April 18, 7 No. 2001. 03-0263-D During that interview Sherry admitted that he had failed to file his quarterly payroll tax returns beginning in mid-1997, and his personal income tax returns beginning in 1997. Sherry stated, however, that he had an appointment with an accountant to prepare the necessary returns. ¶21 Thereafter, Sherry failed to respond to the OLR's request that he inform the OLR when he had followed through and met with his accountant and filed the delinquent tax returns. The Wisconsin Department of Revenue (DOR) later filed a series of collection actions and levies against Sherry but Sherry still failed to file December 1998. payroll tax returns for July 1997 through He also failed to timely file his individual tax returns for the years 1997, 1998, 1999, and 2000. ¶22 Sherry later informed the OLR that he had forwarded those tax returns to the IRS and the DOR in October 2001. The DOR records, however, reflect that Sherry only filed his 2000 income tax returns on October 7, 2001, and that his 1997 1998, and 1999 income tax returns were not filed until January 4, 2002. ¶23 This course of conduct as alleged in the OLR's complaint resulted in Counts Seven and Eight to which Sherry has now stipulated: A. Count Seven ¶24 By failing to file quarterly payroll tax returns for the period of July 1, 1997, through December 31, 1998, and by failing to timely file quarterly payroll tax returns for 1999 and income tax returns for 1997, 1998, 1999, and 2000, Sherry 8 No. 03-0263-D violated a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers (State v. Roggensack, 19 Wis. 2d 38, 45, 119 N.W.2d 412 (1963)), in violation of SCR 20:8.4(f). B. Count Eight ¶25 By failing correspondence from to provide the OLR, a written Sherry response to failed to willfully cooperate with the OLR in the investigation of this matter, in violation of SCR 22.03(4) and SCR 21.15(4). III. WANDEL DIVORCE COUNTS NINE AND TEN ¶26 that The OLR complaint alleged, and Sherry now stipulates, in December 2000 he was retained by Kelly Wandel to initiate divorce proceedings and obtain a child support order. Kelly Wandel thereafter paid Sherry a $500 retainer, and in March 2001 authorized him to start the divorce action on her behalf. Sherry did so on April 10, 2001. ¶27 for The first hearing in that divorce matter was scheduled April because 26, Sherry 2001, had Wandel's husband. but been then rescheduled unable to obtain to May service 23, 2001, on Kelly After attempting to obtain service for those first two hearing dates, Sherry took no further action in that divorce proceeding. attempted to contact After Sherry May to 2001 Kelly determine Wandel the repeatedly status of her divorce action but he failed to respond to her phone calls. She hired a new attorney to represent her in the fall of 2001. ¶28 This course of conduct led to Counts Nine and Ten in the OLR complaint against Sherry to which he now stipulates. 9 No. 03-0263-D A. Count Nine ¶29 By taking no action in Kelly Wandel's divorce action after preliminary service attempts had failed, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. B. Count Ten ¶30 after By failing to respond to Kelly Wandel's phone calls May 2001 Sherry failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a). IV. LEONARD BRUMM COLLECTION MATTERS COUNTS ELEVEN THROUGH FIFTEEN ¶31 The OLR complaint alleges, and Sherry now stipulates, that Leonard Brumm who owned a remodeling business, Lake States, Inc., retained Sherry to represent him in several collection matters. action to In 1997 Brumm asked Sherry to commence a collection collect $4400 repairs and remodeling. that an individual owed Brumm for Sherry filed that lawsuit on behalf of Brumm's business on October 22, 1997. ¶32 Sherry and the defendant's counsel then reached tentative agreement to settle that lawsuit for $1350. a Sherry, however, never communicated that settlement to Brumm. ¶33 Subsequently, the circuit court dismissed that collection action on September 3, 1998, on the representation that the case had been settled. Sherry did not inform Brumm that the lawsuit had been dismissed. 10 In fact, the settlement No. 03-0263-D had never been consummated because Sherry had not prepared the settlement documents. Brumm repeatedly attempted to contact Sherry to determine the status of that lawsuit and, after a series of unsuccessful attempts, Brumm hired another attorney in June 2001. That second attorney then discovered retained Sherry that the lawsuit had been dismissed. ¶34 Brumm foreclose on had a also $1850 construction in lien. late 1997 Thereafter to Brumm repeatedly attempted to contact Sherry about the status of that foreclosure action but Sherry failed to respond or take any action to foreclose the construction lien. ¶35 $12,500 In March judgment arbitration 2001 that proceeding. Brumm retained Brumm's business Brumm gave Sherry had Sherry to collect obtained a a an check $250 in to commence execution on that judgment; the sheriff's department, however, has no record of any attempted execution on the judgment. ¶36 Sherry later informed Brumm that he would conduct a supplemental examination of that judgment debtor never conducted that supplemental examination. attempted to obtain a status report from but Sherry Brumm repeatedly Sherry about the $12,500 collection matter but without success. ¶37 This course of conduct led to Counts Eleven through Fifteen in the OLR complaint to which Sherry now stipulates. A. Count Eleven ¶38 By failing to communicate the offer of settlement to Brumm in the 1997 collection matter, Sherry failed to inform his 11 No. client of all offers of settlement and abide by 03-0263-D a client's decision whether to accept the offer of settlement of a matter, in violation of SCR 20:1.2(a). B. Count Twelve ¶39 the By failing to take appropriate steps toward finalizing settlement, agreement to including writing failing in the to 1998 reduce matter the after settlement the court dismissed the case upon assurances of counsel that it had been settled, Sherry failed to act with reasonable diligence in representing a client, in violation of SCR 20:1.3. C. Count Thirteen ¶40 By failing to perform work to foreclose on Lake State's construction lien, Sherry failed to act with reasonable diligence in representing a client, in violation of SCR 20:1.3. D. Count Fourteen ¶41 judgment, By failing Sherry to failed collect to act on with Lake State's reasonable $12,500 diligence in representing a client, in violation of SCR 20:1.3. E. Count Fifteen ¶42 By not informing Brumm that the 1997 collection matter had been dismissed and by failing to respond to Brumm's repeated correspondence requesting status reports, Sherry failed to keep his client reasonably informed about the status of the matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a). 12 No. 03-0263-D V. PRIVATE INVESTIGATOR FALKNER COUNT SIXTEEN ¶43 The OLR complaint alleges, and Sherry now stipulates, that Sherry hired Gerald Falkner, a private investigator, to perform investigative work in three public defender cases in which Sherry had been appointed as defense counsel. Sherry and Falkner agreed that Falkner would wait to receive payment for his services until after Sherry had been paid Falkner's costs by the state public defender's office. ¶44 Sherry thereafter received payments for the investigations from the state public defender's office in those three cases in the amount of $316.81, $187.33, and $519, respectively. Sherry cashed those checks but failed to forward the Falkner money to obtain the money. despite Falkner's numerous attempts to Falkner did not receive his payments until late 2001. ¶45 This course of conduct led to count 16 in the OLR complaint to which Sherry now stipulates. A. Count Sixteen ¶46 from the entitled By failing to promptly deliver to Falkner the funds state public to receive, defender's Sherry failed office to that promptly Falkner deliver was to a third person funds that that person was entitled to receive, in violation of SCR 20:1.15(b). VI. CLIENT KHAN COUNT SEVENTEEN ¶47 The OLR complaint alleges, and Sherry now stipulates, that in March 1999 Mohamad S. Khan retained Sherry to represent Khan in collecting a security 13 deposit purportedly wrongly No. 03-0263-D retained by the buyer of rental property previously owned by one Noreen Khan. Mohamad Khan paid Sherry an advance of $102 for costs; Sherry, however, did not file a lawsuit on Khan's behalf. ¶48 Despite Khan's request Sherry failed to return the $102 and failed to deliver Khan's file to Khan's new attorney. ¶49 This course of conduct led to Count Seventeen in the OLR's complaint against Sherry to which he now stipulates. A. Count Seventeen ¶50 failing By failing to return the $102 in advance costs and by to deliver Khan's file to his new attorney, Sherry failed to surrender papers and property to which a client was entitled and refund any advance payment of fees that had not been earned, in violation of SCR 20:1.16(d). VII. GALL DIVORCE ACTION COUNTS EIGHTEEN THROUGH TWENTY-ONE ¶51 The OLR complaint alleges, and Sherry now stipulates, that in December 2000 Jessica Gall retained Sherry to represent her in a divorce action. ¶52 She paid Sherry a retainer of $850. The initial hearing in that divorce action was held on March 21, 2001; thereafter, Sherry failed to perform any work on that divorce action. He also did not return Gall's phone calls and failed to keep her informed about the divorce action. did, however, have five telephone conversations with He Jessica Gall, some of which occurred after Sherry's law license had been administratively suspended on June 6, 2001, due to his noncompliance with CLE requirements. ¶53 Specifically, in August and September 2001, Sherry provided legal advice to Gall over the telephone concerning her 14 No. divorce action; however, he never informed her that 03-0263-D his law license had been suspended. ¶54 complete In October 2001 Sherry informed Gall that he could not her divorce action because of depression. Sherry agreed to refund to Gall $425 of her retainer fee by October 26, 2001, but he failed to do so. ¶55 This course of conduct led to Counts Eighteen through Twenty-One in the OLR's complaint to which Sherry has now stipulated. A. Count Eighteen ¶56 By failing to take action in Gall's divorce after the initial hearing on March 21, 2001, Sherry failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. B. Count Nineteen ¶57 By failing to respond to Gall's attempts to communicate with him regarding the status of the divorce action, Sherry failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a). C. Count Twenty ¶58 promised, By failing to refund Gall $425 of her retainer fee, as Sherry failed to surrender papers and property to which a client was entitled and refund any advance payment of fees that had not been earned, in violation of SCR 20:1.16(d). 15 No. 03-0263-D D. Count Twenty-One ¶59 By providing legal advice to Gall while his license was suspended, Sherry violated a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers, SCR 31.10, which prohibits the practice of law while the lawyer's state bar membership is suspended for noncompliance with CLE requirements, in violation of SCR 20:8.4(f). ¶60 As noted, Sherry has now stipulated to these 21 counts of misconduct as alleged by the OLR in its complaint. He admits the facts and the misconduct as alleged and agrees with the OLR that a nine-month suspension of his license to practice law in this state is an appropriate sanction for that misconduct. He also agrees with the OLR that he should make restitution to Mohamad Khan in the amount of $102, and to Jessica Gall in the amount of $450. ¶61 We approve seriousness suspension of of the stipulation Attorney his license Sherry's to and determine misconduct practice law that warrants for nine the the months. Sherry's admitted acts are serious violations of the Rules of Professional Conduct governing lawyers in this state. agree that Sherry should make restitution in the We also stipulated amounts. ¶62 practice IT IS ORDERED that the license of Robert L. Sherry to law in Wisconsin is suspended months, effective the date of this order. 16 for period of nine No. ¶63 03-0263-D IT IS FURTHER ORDERED that Robert L. Sherry comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶64 IT IS FURTHER ORDERED that within 60 days of the date of this order, Robert L. Sherry shall make restitution in the amount of $102 to Mohamad Khan and in the amount of $450 to Jessica Gall. If that restitution is not paid within 60 days, and absent a showing to this court of his inability to pay such restitution within that time, the license of Robert L. Sherry to practice law in this state shall remain suspended until further order of this court. ¶65 PATIENCE D. ROGGENSACK, J., did not participate. 17 No. 1 03-0263-D
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