Office of Lawyer Regulation v. Mark G. Pierquet
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2005 WI 147 SUPREME COURT CASE NO.: OF WISCONSIN 2004AP2998-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Mark G. Pierquet, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark G. Pierquet, Respondent. DISCIPLINARY PROCEEDINGS AGAINST PIERQUET OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: October 25, 2005 2005 WI 147 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP2998-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Mark G. Pierquet, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, OCT 25, 2005 v. Cornelia G. Clark Clerk of Supreme Court Mark G. Pierquet, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 filed PER CURIAM. by referee incorporating We Rose Attorney review Marie a report Baron Pierquet's no on and recommendation April contest 11, plea 2005, and stipulations executed by the parties, recommending that Attorney Mark G. Pierquet receive a public reprimand for professional misconduct and that the court impose certain conditions upon Attorney Pierquet's practice of law. No. ¶2 the Having independently referee's factual stipulations. We reviewed findings agree the 2004AP2998-D record, we accept recommendation Attorney that and Pierquet's upon conduct violated the rules of professional conduct and we further agree that a public reprimand and the imposition of conditions is the appropriate discipline for Attorney Pierquet's misconduct. We also conclude that Attorney Pierquet should be required to pay the costs of the Office of Lawyer Regulation (OLR) proceeding, which total $810.72 as of April 28, 2005. ¶3 Attorney Wisconsin in Pierquet was admitted to He not September 2001. the complaint has practice law previously in been disciplined. ¶4 As OLR alleged and the referee subsequently found, the client in this matter, R.G., allegedly sustained injuries while office in January 2000. undergoing treatment at a doctor's In 2001 an attorney in Menasha referred R.G. to Attorney Pierquet and a colleague who would serve as his co-counsel. ¶5 explained Attorney Pierquet and his colleague met with R.G. and that they would jointly represent R.G. Attorney Pierquet would investigate and plead the case; his colleague was responsible for the trial. ¶6 R.G. agreed to retain Attorney colleague on a contingent fee basis. Pierquet and his Attorney Pierquet asserts that he reduced the contingent fee to writing, but was unable to produce a copy. R.G. does not recall signing a contingent fee 2 No. 2004AP2998-D agreement, but does recall that he asked Attorney Pierquet for a copy and did not receive one. ¶7 On July 9, 2002, Attorney Pierquet filed a complaint on behalf of R.G. in the Outagamie County Circuit Court. January 9, 2003, seeking dates opposing to depose counsel R.G.'s wrote expert Attorney witnesses. On Pierquet, Attorney Pierquet failed to respond to that letter. ¶8 Attorney On March Pierquet 10, and 2003, opposing Pierquet witnesses for depositions. agreed counsel to spoke provide the with expert On March 27, 2003, opposing counsel wrote Attorney Pierquet, again seeking deposition dates for the expert witnesses, and also seeking a stipulation to modify the scheduling order. Attorney Pierquet failed to respond to that letter. ¶9 Opposing counsel called Attorney Pierquet on April 7th, April 11th, and April 15, 2003, to inquire about the stipulation for modifying the scheduling order. Attorney Pierquet failed to return these calls. ¶10 On April 16, 2003, opposing counsel wrote to Attorney Pierquet requesting a response and informing Attorney Pierquet that failure to respond would result in a motion to the court. Attorney Pierquet did not respond. ¶11 On May 13, 2003, opposing counsel filed a motion to dismiss R.G.'s complaint, or in the alternative to modify the scheduling order and compel discovery. the motion on July 2, 2003. The circuit court heard The court then limited R.G.'s witnesses, ordered R.G. to provide opposing counsel the theory 3 No. 2004AP2998-D of liability by July 14, 2003, and imposed costs of $400 on R.G. to compensate opposing counsel for the costs of bringing the motion. ¶12 Pierquet On July 2, 2003, opposing counsel spoke with Attorney about dismissing the lawsuit. On July 9, 2003, opposing counsel sent Attorney Pierquet a stipulation and order for dismissal. ¶13 Attorney Pierquet failed to provide opposing counsel the theory of liability by July 14, 2003, as ordered by the court. ¶14 On August 8, 2003, without consulting his client, Attorney Pierquet signed a stipulation to dismiss R.G.'s case with prejudice. On August 27, 2003, based upon stipulation, the circuit court dismissed the lawsuit. this Attorney Pierquet did not inform either R.G. or his own colleague that he had stipulated to dismissal of the case. ¶15 In September 2003 Attorney Pierquet's colleague received notice of a trial date for R.G.'s case. He informed Attorney prepare trial. Pierquet that he required more time to for Attorney Pierquet then informed his colleague that due to the lack of notice, the court had removed the case from the calendar and would reschedule it later. This information was false, as Attorney Pierquet knew. ¶16 On or about September 9, 2003, R.G. called Attorney Pierquet to ask what he should wear to court. Attorney Pierquet did not inform R.G. that he had stipulated to dismissal, and 4 No. 2004AP2998-D instead told R.G. that the case was progressing smoothly toward conclusion. ¶17 On or about October 8, 2003, R.G. contacted Attorney Pierquet, stating that he had learned that his case had been dismissed. He sought an explanation from Attorney Pierquet. Attorney Pierquet falsely stated to R.G. that he had not signed a stipulation dismissing the case. ¶18 At this point Attorney Pierquet's colleague conducted a case search and confirmed that a stipulation for dismissal had been entered in R.G.'s case. who initially gave a He confronted Attorney Pierquet, noncommittal response, but subsequently admitted signing the stipulation. ¶19 The disciplinary Pierquet alleged five Attorney Pierquet agreed complaint counts to of plead filed against misconduct. no contest Attorney Eventually, to these five counts. In March 2005 the parties executed a stipulation and no contest plea agreeing, with minor clarifications, that the factual allegations set forth in the complaint were accurate. The referee thus concluded that there was an adequate factual basis in the record to show that Attorney Pierquet had committed misconduct in respect to each of the five allegations set forth by the OLR. Subsequently, the stipulation regarding discipline. 5 parties entered a second No. ¶20 2004AP2998-D The stipulation stated, and the referee concluded that by failing to reduce his contingent fee agreement with R.G. to writing, Attorney Pierquet violated SCR 20:1.5(c).1 ¶21 In addition, the parties stipulated and the referee concluded that by failing to properly prosecute R.G.'s lawsuit, by failing to respond to discovery requests, and by failing to comply with a court-ordered deadline, Attorney Pierquet failed to provide competent representation in violation of SCR 20:1.1,2 and also failed to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3.3 1 SCR 20:1.5(c) provides: A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and if there is a recovery, showing the remittance to the client and the method of its determination. 2 SCR 20:1.1 provides that "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." 3 SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 6 No. ¶22 2004AP2998-D lawsuit In addition, by stipulating to the dismissal of R.G.'s with prejudice without consulting or informing his client, the parties stipulated and the referee concluded that Attorney Pierquet failed to abide by a client's decisions concerning the objectives of a representation and consult with the client as to the means by which they are to be pursued in violation of SCR 20:1.2(a).4 ¶23 The stipulation provided and the referee also concluded that by stating to R.G. that the case was progressing, and by denying that he had signed a stipulation for dismissal when in fact he had signed a stipulation for dismissal and the case had been dismissed, Attorney Pierquet engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of SCR 20:8.4(c).5 4 SCR 20:1.2(a) provides: Scope of representation. A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a client of all offers of settlement and abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of liberty, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 5 SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 7 No. ¶24 Finally, the parties stipulated and 2004AP2998-D the referee concluded that by failing to inform his co-counsel that he had dismissed the case and by misleading co-counsel into believing the case was pending and that the trial would be rescheduled, Attorney fraud, Pierquet deceit, or engaged in conduct misrepresentation involving in dishonesty, violation of SCR 20:8.4(c). ¶25 providing The parties eventually that Attorney reached Pierquet a second would stipulation receive a public reprimand for his misconduct and that certain conditions would be imposed on Attorney Pierquet's practice of law. reasons for Specifically, the parties stipulated that: For a period of two years following the date of the Supreme Court's final order, Pierquet shall continue medical treatment, and shall comply with all treatment recommendations; and Six months after the date of the Supreme Court's final order, and every six months thereafter until two years after the Court's order, Pierquet shall provide full medical treatment records to OLR. ¶26 The stipulation sets forth the medical these conditions and the referee accepted the stipulation as part of her recommendation regarding discipline. Based on our review of the record, we agree that a public reprimand with the imposition of the conditions described herein is appropriate in this matter. We further conclude that Attorney Pierquet should be required to pay the costs of this proceeding. ¶27 IT IS ORDERED that Attorney Mark publicly reprimanded for professional misconduct. G. 8 Pierquet is No. ¶28 2004AP2998-D IT IS FURTHER ORDERED that the following conditions are imposed upon Attorney Pierquet's license to practice law in Wisconsin: For a period of two years following the date of the Supreme Court's final order, [Attorney] Pierquet shall continue medical treatment, and shall comply with all treatment recommendations; and Six months after the date of the Supreme Court's final order, and every six months thereafter until two years after the Court's order, [Attorney] Pierquet shall provide full medical treatment records to [the] OLR. ¶29 IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Mark G. Pierquet 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 an inability to pay the costs within that time, the license of Attorney Mark G. Pierquet to practice law in Wisconsin shall be suspended until further order of the court. 9 No. 1 2004AP2998-D
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