Office of Lawyer Regulation v. Maureen B. Fitzgerald

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2008 WI 101 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP181-D In the Matter of Disciplinary Proceedings Against Maureen B. Fitzgerald, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Maureen B. Fitzgerald, Respondent. DISCIPLINARY PROCEEDINGS AGAINST FITZGERALD OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: July 17, 2008 2008 WI 101 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP181-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Maureen B. Fitzgerald, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JUL 17, 2008 v. David R. Schanker Clerk of Supreme Court Maureen B. Fitzgerald, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 to SCR PER CURIAM. 22.12 by the We review the stipulation filed pursuant Office of Attorney Maureen B. Fitzgerald. misconduct complaint alleged and by agrees the to OLR a Lawyer Regulation (OLR) and Attorney Fitzgerald admits the in 60-day a six-count license disciplinary suspension plus restitution. ¶2 Attorney Fitzgerald was admitted to practice law in Wisconsin in 1995 and most recently practiced in Milwaukee. On No. May 9, 2006, Fitzgerald's this license court to temporarily practice law suspended due cooperate with an OLR investigation. 2008AP181-D to her Attorney failure to On June 2, 2006, this court suspended Attorney Fitzgerald's license for 90 days for numerous instances of misconduct. See In re Disciplinary Proceedings Against Fitzgerald, 2006 WI 58, 290 Wis. 2d 713, 714 N.W.2d 925. Attorney Fitzgerald's license remains under suspension. ¶3 The disciplinary complaint alleges misconduct arising from Attorney Fitzgerald's actions while her license was under suspension. After her May 9, 2006, suspension, while performing work on a contract basis for the Office of the State Public Defender (SPD), Attorney Fitzgerald appeared in circuit court in Milwaukee County on four separate client matters. ¶4 Three appearances took place on May 15, 2006. In the first matter, Attorney Fitzgerald billed the SPD for 1.7 hours of work and suspension. $266, of was $68 for work performed after the In the second matter, she was paid a flat fee of which suspension. paid The $86.80 SPD was has for not work recouped performed the after $154.80 her Attorney Fitzgerald received for work performed after her suspension on these two cases.1 ¶5 On December 4, 5, and 6, 2006, Attorney Fitzgerald appeared on behalf of a fourth client in a motion hearing in 1 In the third matter, Attorney Fitzgerald was paid a flat fee; however, the payment in the third matter does not form a basis for a disciplinary count. 2 No. Milwaukee County and on January 25, 2007, she 2008AP181-D appeared as counsel at his sentencing. ¶6 On March 27, 2007, the OLR sent Attorney Fitzgerald a letter informing her that the OLR was investigating her potential practice of law while under suspension and requesting certain information. On April 9, 2007, the OLR sent a second letter by first-class mail informing Attorney Fitzgerald that the OLR was expanding its investigation and pursuant to SCR 22.03(2), she was required to provide a written response by May 2, 2007. Attorney Fitzgerald failed to respond to the OLR's correspondence. ¶7 On May 7, 2007, the OLR sent Attorney Fitzgerald a third letter via first-class mail and certified mail informing her of her duty to cooperate with the OLR and requesting a response by May 17, 2007. mail receipt (signed by The OLR received a signed certified "CTA/C. Lathrop") on May 8, 2007, acknowledging delivery of the May 7 letter. The letter sent via first-class was mail to Attorney Fitzgerald not returned. Attorney Fitzgerald failed to respond to the OLR's letter of May 7, 2007. ¶8 Counts 1 through 3 of the disciplinary complaint charge (1) by appearing on behalf of clients while her license to practice law was suspended, Attorney Fitzgerald violated SCR 22.26(2);2 2 (2) by billing the SPD and accepting payment SCR 22.26(2) provides: An attorney whose license to practice law is suspended or revoked or who is suspended from the 3 for No. 2008AP181-D appearances made on behalf of two clients while her license to practice law was suspended, Attorney Fitzgerald violated SCR 20:8.4(c);3 and (3) by failing to respond to correspondence from the OLR requesting information, Attorney Fitzgerald violated SCR 22.03(2).4 ¶9 involve Counts Attorney 4 through 6 Fitzgerald's of the disciplinary misconduct with complaint respect representation of a client in Jefferson County. to her On July 24, 2007, the Jefferson County clerk of circuit court received an unsigned facsimile transmission ("fax") entering a not guilty practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law. 3 SCR 20:8.4(c) states it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 4 SCR 22.03(2) provides: Upon commencing an investigation, the director shall notify the respondent of the matter being investigated unless in the opinion of the director the investigation of the matter requires otherwise. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct within 20 days after being served by ordinary mail a request for a written response. The director may allow additional time to respond. Following receipt of the response, the director may conduct further investigation and may compel the respondent to answer questions, furnish documents, and present any information deemed relevant to the investigation. 4 No. plea on behalf of client P.N. 2008AP181-D The header on the fax indicated it came from Attorney Fitzgerald. ¶10 On the same day, the Jefferson County clerk telephoned Attorney Fitzgerald to ascertain the name and state bar number of the attorney representing P.N. Attorney Fitzgerald indicated to the clerk that she was unsure who from her firm would be representing the client and asked that any notice of a hearing be sent to her. notices could The clerk informed Attorney Fitzgerald that no be sent without the attorney information. Attorney Fitzgerald stated she would provide the clerk with the information. ¶11 On July 25, 2007, the clerk had not yet received information from Attorney Fitzgerald and left a message for her. When the clerk checked for Attorney Fitzgerald's bar number on the State Bar of Wisconsin's Web site, the clerk learned Attorney Fitzgerald's license to practice law was suspended. July 31, 2007, the OLR sent Attorney Fitzgerald a On letter informing her of the nature of its investigation and requesting information. ¶12 Attorney Fitzgerald did not respond. On August 27, 2007, the OLR sent Attorney Fitzgerald a second letter via first-class mail and certified mail reminding her of her duty to cooperate with the OLR and requesting a response. The OLR received a signed certified mail receipt (by "J. Purnell") on August 28, 2007, acknowledging receipt of the OLR's August 27, 2007 letter. The letter sent by first-class mail Attorney had not been returned. respond. 5 Fitzgerald failed to No. ¶13 2008AP181-D The disciplinary complaint in count 4 charges that by entering the not guilty plea by fax on P.N.'s behalf while her license was 22.26(2). County suspended, Count clerk of Attorney 5 charges circuit that court Fitzgerald by violated misleading about her the SCR Jefferson license status, indicating she was a member of a firm and failing to clarify she would not be representing P.N., Attorney Fitzgerald violated SCR 20:8.4(c). Count 6 charges that by failing to respond to the OLR's letters, Attorney Fitzgerald violated SCR 22.03(2). ¶14 By her stipulation, Attorney Fitzgerald admits the misconduct alleged and agrees to the level of discipline sought by the OLR: the SPD. a 60-day suspension and restitution of $154.80 to The stipulation bargaining or negotiations. states it does not reflect plea Attorney Fitzgerald states that she fully understands her right to contest the matter and consult with counsel, her entry into the stipulation is knowing and voluntary, and she understands the misconduct allegations and ramifications should this court impose the agreed upon discipline.5 5 It appears that the stipulation contains a misstatement on page 9, paragraph 35, in which it refers to Attorney Fitzgerald's understanding of the ramifications of a "private reprimand." The disciplinary complaint, however, seeks a 60-day license suspension and restitution. Also, paragraph 34 of the stipulation states, "Fitzgerald agrees to the level of discipline sought by the OLR: 60-day suspension and restitution of $154.80 to the SPD." The OLR's memorandum in support of the stipulation recommends a 60-day suspension and restitution. In view of the record, we conclude that the stipulation's isolated reference to a private reprimand is an inconsequential misstatement. 6 No. ¶15 with The OLR states that a 60-day suspension is consistent this Against 2008AP181-D court's opinion Engelbrecht, N.W.2d 743. 2000 Attorney reprimanded in In WI re Disciplinary 120, Engelbrecht, privately 239 who for Proceedings Wis. 2d 236, had been 618 previously misconduct including misrepresentation, received a 60-day suspension for appearing at a trial and compliance Attorney filing with a brief during continuing Engelbrecht had a suspension legal failed also education to for non- requirements. notify the court or opposing counsel of his suspension, made misleading statements to the Board of Bar Examiners, and failed to cooperate in the Board of Attorneys Professional Responsibility's investigation. See id., ¶1. The OLR contends Attorney Fitzgerald's misconduct resembles that charged in the Engelbrecht case because not only did she practice during her suspension, but her prior discipline involved issues of dishonesty and noncooperation. ¶16 This court approves stipulated facts stipulated discipline. misconduct warrants license to and practice the conclusions We of determine the suspension law for 60 $154.80 restitution to the SPD. OLR does not seek costs. stipulation, law, the of days the seriousness Attorney and the imposes and adopts the of the Fitzgerald's imposition of In view of the stipulation, the Costs of this proceeding will not be imposed. ¶17 Fitzgerald IT to IS ORDERED practice that law in the license Wisconsin is of suspended period of 60 days, effective the date of this order. 7 Maureen for B. a No. ¶18 2008AP181-D IT IS FURTHER ORDERED that, to the extent she has not yet done so, Attorney Fitzgerald comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶19 of this Office of provided IT IS FURTHER ORDERED that within 60 days of the date order, the that Attorney State if Fitzgerald Public Defender restitution is make in not restitution the paid sum of within to the $154.80, the time specified and absent a showing to this court of her inability to pay restitution within that time, her license to practice law in Wisconsin shall remain suspended court. 8 until further order of the No. 1 2008AP181-D

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