Office of Lawyer Regulation v. Richard A. Engelbrecht
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2008 WI 29 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2597-D In the Matter of Disciplinary Proceedings Against Richard A. Engelbrecht, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Richard A. Engelbrecht, Respondent. DISCIPLINARY PROCEEDINGS AGAINST ENGELBRECHT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: April 8, 2008 2008 WI 29 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2597-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Richard A. Engelbrecht, Attorney at Law: FILED Office of Lawyer Regulation, APR 8, 2008 Complainant, v. David R. Schanker Clerk of Supreme Court Richard A. Engelbrecht, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 Office PER CURIAM. of Lawyer Engelbrecht Regulation concerning disciplinary complaint. Engelbrecht's lack violations. We review the stipulation filed by the of (OLR) misconduct The and Attorney charged misconduct diligence, in Richard a involves misrepresentation A. six-count Attorney and other The parties have stipulated that the appropriate discipline is a two-year suspension of Attorney Engelbrecht's No. 2007AP2597-D license to practice law in Wisconsin, together with restitution of $1,000. ¶2 Pursuant to SCR 22.12(2), we approve the stipulation and adopt the stipulated facts and conclusions of law. We agree that Attorney Engelbrecht's disciplinary history and the serious nature of his misconduct warrants the suspension of his license to practice law for a term of two years, along with the imposition of $1,000 in restitution. ¶3 Attorney Engelbrecht was admitted to practice law in June of 1974 and most recently practiced in Green Bay. disciplinary history includes: His (1) a 1989 consensual private reprimand related to neglect, misrepresentations to his clients and the Board of Attorneys Professional Responsibility (BAPR), and the failure to keep his clients reasonably informed; (2) a 60-day license suspension in December 2000 for practicing law while his license noncompliance with had been administratively continuing legal suspended education for requirements, misrepresentation on his reinstatement petition, and the failure to cooperate with the BAPR in an investigation; and (3) trust account violations, lack of diligence, and the failure to provide full information during an investigation, resulting in a six-month license suspension in January 2007.1 His law license remains under suspension. 1 See In re Disciplinary Proceedings Against Engelbrecht, 2000 WI 120, 239 Wis. 2d 236, 618 N.W.2d 743, and In re Disciplinary Proceedings Against Engelbrecht, 2007 WI 2, 298 Wis. 2d 323, 725 N.W.2d 630. 2 No. ¶4 The misconduct Engelbrecht's Attorney charged representation Engelbrecht about of here E.M. filing involves After an 2007AP2597-D Attorney consulting equal rights with complaint alleging discrimination by a former employer, E.M. filed a pro se complaint with the Equal Employment Opportunity Commission. In May 2005 the pro se claim was dismissed. The dismissal notice informed E.M. that he had the right to file a civil action against his former employer within 90 days or lose his right to do so. ¶5 again In and August hired employer. 2005 him E.M. to paid E.M. file met the Attorney with suit Attorney against Engelbrecht Engelbrecht E.M.'s $500. former Attorney Engelbrecht filed the summons and complaint on behalf of E.M. in Brown County circuit court. E.M. made two additional payments to Attorney Engelbrecht amounting to $500. ¶6 service Attorney Engelbrecht failed, however, to arrange for of the complaint. On January 24, 2006, Attorney Engelbrecht informed E.M. that the summons and complaint were never served, obtain service. and asserted it was E.M.'s responsibility to E.M. objected, indicating he would have no idea how to obtain service. ¶7 The case was scheduled for a status conference the following day. Attorney Engelbrecht and E.M. arrived at the courthouse together before it opened. After the doors opened, Attorney Engelbrecht went to the judge's chambers alone. When he returned, Attorney Engelbrecht advised E.M. that the action had been dismissed but that Attorney Engelbrecht would refile 3 No. it. 2007AP2597-D On February 14, 2006, the circuit court issued a written order dismissing E.M.'s action without prejudice. ¶8 Attorney deadline. Engelbrecht did not inform E.M. of any In March 2006 E.M. inquired in a letter to Attorney Engelbrecht why he had not yet refiled the complaint. Attorney Engelbrecht did not respond. ¶9 E.M. thereafter filed a grievance with the OLR. In a response to the OLR, Attorney Engelbrecht enclosed a fabricated letter he claimed he had sent E.M. The letter indicated that E.M. had the responsibility to serve a copy of the authenticated summons and complaint date. The letter on also his former indicated employer that by a Attorney specified Engelbrecht "respect[ed] your decision to pursue the adverse decision from the office of the EEOC on your own and wish you well in your efforts." Attorney Engelbrecht failed to cooperate with the efforts of the investigative committee. ¶10 Subsequently, the OLR filed a six-count disciplinary complaint against Attorney Engelbrecht. by failing to obtain service of a Count one charges that summons and complaint on behalf of E.M., resulting in the dismissal of the employment discrimination suit, Attorney Engelbrecht violated former SCR 20:1.3, requiring an attorney to "act with reasonable diligence 4 No. and promptness in representing a client." failing to inform failing to E.M. notify that E.M. in he a did 2 not timely 2007AP2597-D Count two states by obtain fashion service, that by Attorney Engelbrecht would not refile the complaint, and by failing to respond to E.M.'s violated SCR March 20:1.4(a), 2006 which letter, requires Attorney a lawyer Engelbrecht to keep his client "reasonably informed about the status of a matter and promptly comply with [the client's] reasonable requests for information." ¶11 the Count three charges that by failing to return to E.M. $1,000 in fees and costs after Attorney Engelbrecht's failure to pursue the lawsuit resulted in dismissal, Attorney Engelbrecht violated SCR 20:1.16(d),3 which requires a lawyer, upon termination of representation, to take reasonable steps to 2 Effective July 1, 2007, substantial changes were made to the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys, SCR Chapter 20. See S. Ct. Order 04-07, 2007 WI 4, 293 Wis. 2d xv, 726 N.W.2d Ct.R-45 (eff. July 1, 2007); and S. Ct. Order 06-04, 2007 WI 48, 297 Wis. 2d xv, 730 N.W.2d Ct.R.-29 (eff. July 1, 2007). Because the conduct underlying this case arose prior to July 1, 2007, unless otherwise indicated, all references to the supreme court rules will be to those in effect prior to July 1, 2007. 3 Former SCR 20:1.16(d) provides: 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 No. protect a client's misrepresenting responsibility purported to to letter 20:8.4(c), which interest. E.M. that E.M., states it and four had service, obtain to Count Attorney that been by charges the violated involving by client's fabricating Engelbrecht "conduct 2007AP2597-D the SCR dishonesty, fraud, deceit or misrepresentation" constitutes misconduct. ¶12 Count five states by misrepresenting in his initial written response to the OLR that it was the client, rather than Attorney summons Engelbrecht, and who complaint, was and responsible for serving providing the OLR by with the a fabricated letter, Attorney Engelbrecht violated SCR 22.03(6).4 This rule states a misrepresentation investigation is misconduct. made during an Count six charges that by failing to cooperate with the OLR's investigative committee, Attorney Engelbrecht violated SCR 22.04(1),5 which requires a lawyer's cooperation. ¶13 The OLR and Attorney misconduct charged in counts 4 SCR 22.03(6) provides: Engelbrecht one through stipulated six and to the agreed the Investigation. In the course of the investigation, the respondent's wilful 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 22.04(1) states, in pertinent part, that "[t]he director may refer a matter to a district committee for assistance in the investigation. A [lawyer] has the duty to cooperate specified in SCR 21.15(4) and 22.03(2) in respect to the district committee. . . ." 6 No. 2007AP2597-D appropriate level of discipline would be a two-year suspension of Attorney Engelbrecht's license to practice law in Wisconsin, along with his payment of $1,000 in restitution to the Wisconsin Lawyers' Fund for Client Protection, which had approved payment to E.M. in November stipulation, the 2007. OLR Based does not on Attorney seek the Engelbrecht's costs of this disciplinary proceeding. ¶14 that In he the fully stipulation understands Attorney the Engelbrecht misconduct represents allegations, the ramifications of the stipulated level of discipline, his right to contest the matter and his right to consult with counsel. represents he entered into the stipulation He knowingly and voluntarily, and that his entry into the stipulation represents his admission of the misconduct charged. ¶15 We We adopt the stipulated facts and conclusions of law. conclude the misconduct and Attorney Engelbrecht's disciplinary history warrants the suspension of his license to practice law in Wisconsin for a term of two years, together with $1,000 in restitution to the Wisconsin Lawyers' Fund for Client Protection. Attorney In reaching Engelbrecht's this conclusion, misconduct we involves consider a that number of aggravating factors, including his recent disciplinary history. Attorney Engelbrecht's misconduct is serious because it exhibits dishonest cooperate evidence process, and selfish with and the using motives, multiple disciplinary deceptive indifference to agency, practices making 7 offenses, failure submitting during restitution, a to false disciplinary and harm to No. clients. which 2007AP2597-D Attorney Engelbrecht kept $1,000 of his client's money he did not earn and attempted to disguise his own culpability. Attorney Engelbrecht failed to respond to several letters phone and calls from the OLR's investigator. In addition, Attorney Engelbrecht misrepresented to the OLR that it was his client who had failed to obtain service. Attorney Engelbrecht submitted a fabricated letter in support of that misrepresentation. We note that Attorney Engelbrecht was cooperative with the OLR during the litigation of this matter, however, and admitted his misconduct and accepted responsibility. ¶16 In accepting the parties' stipulated discipline, we consider In re Disciplinary Proceedings Against Graf, 2003 WI 122, ¶¶2-3, 265 Wis. 2d 376, 667 N.W.2d 340, in which a two-year suspension was imposed based upon Attorney Graf's misrepresentation to his client that he filed a complaint and conducted witness misconduct by interviews. practicing Attorney law during Graf an compounded his administrative and temporary disciplinary suspension and by his misrepresentation that he had not practiced during his suspension. Attorney Graf had been privately reprimanded in 2001 for practicing law under an administrative suspension and noncooperation and, in 2002, his license had again been ordered suspended after his failure to pay the costs of his disciplinary proceeding. ¶17 periods Other cases with similar misconduct involving shorter of disciplinary suspension histories. did not For involve example, 8 attorneys in In re with recent Disciplinary No. 2007AP2597-D Proceedings Against Danielson, 2006 WI 33, ¶2, 290 Wis. 2d 12, 712 N.W.2d 671, Attorney Danielson's law license was suspended for six months. Her misconduct involved failures to pursue an insurance claim after the client had paid a $500 retainer, to respond to OLR inquiries and to notify her client of her license suspension. Attorney Danielson's case did not involve misrepresentation and did not involve prior discipline. ¶18 Also, in In re Disciplinary Proceedings Against Lister, 2007 WI 55, 300 Wis. 2d 326, 731 N.W.2d 254, Attorney Lister committed 17 violations, including a false statement to the court, failures to communicate with clients, a lack of competent and diligent representation, and failure to respond during the OLR's investigation. The evidence showed a disturbing pattern of failing to act diligently on behalf of the client and failing to communicate with his clients about the status of their matters. had received reprimand a prior over reprimand years for similar Id. Attorney he also was for five months; the the discipline imposed during 30 years of practice. suspended earlier conduct, was license was 20 Although Attorney Lister and Lister's occurred Id., ¶78. only ordered to pay restitution of $12,209 and costs of $10,132.35. Id., ¶2. ¶19 In light of the seriousness of Attorney Engelbrecht's misconduct and his recent disciplinary history, we conclude that the stipulated two-year suspension of Attorney Engelbrecht's license to practice law, together with restitution of $1,000, is appropriate discipline. 9 No. ¶20 IT Engelbrecht IS to ORDERED that practice law in the license Wisconsin of is 2007AP2597-D Richard suspended A. for a period of two years, effective the date of this order. ¶21 IT IS FURTHER ORDERED that to the extent he has not done so, Attorney Engelbrecht comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶22 IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Engelbrecht shall pay restitution to the Wisconsin Lawyers' Fund $1,000. for Client Protection in the sum of If restitution is not paid within the time specified and absent a showing to this court of his inability to pay restitution within that time, the license of Attorney Engelbrecht to practice law in Wisconsin shall remain suspended until further order of this court. 10 No. 1 2007AP2597-D
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