Office of Lawyer Regulation v. Glenn J. Blise
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2010 WI 34 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2604-D In the Matter of Disciplinary Proceedings Against Glenn J. Blise , Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Glenn J. Blise, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST BLISE OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 12, 2010 February 23, 2010 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant there were briefs by Glenn J. Blise. For the complainant-respondent there was a brief by Robert G. Krohn and Roethe Pope Roethe LLP, Edgerton, on behalf of the Office of Lawyer Regulation. 2010 WI 34 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2604-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Glenn J. Blise, Attorney at Law: FILED Office of Lawyer Regulation, Complainant-Respondent, MAY 12, 2010 v. David R. Schanker Clerk of Supreme Court Glenn J. Blise, Respondent-Appellant. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. Attorney Glenn J. Blise appeals the referee's report recommending a public reprimand, together with restitution and costs. filed a six-count The Office of Lawyer Regulation (OLR) complaint against Attorney misconduct with respect to one client matter. was appointed referee. Blise alleging John R. Decker Referee Decker concluded the OLR met its burden to prove four counts, three of which involve Attorney Blise's failure to properly communicate with his client and a No. 2007AP2604-D fourth charging his failure to refund an unearned fee. Referee Decker concluded, however, that two counts alleging failure to disclose facts and provide information during the OLR investigation should be dismissed due to lack of proof. ¶2 Attorney Blise raises one issue. He contends the referee erroneously exercised his discretion in denying Attorney Blise's request to adjourn the disciplinary hearing when Attorney Blise was suffering the effects of chemotherapy. ¶3 Our review of the denial of an adjournment motion is confined to whether the record supports the referee's exercise of discretion. While we may have ruled differently, we do not set aside the referee's decision to deny the motion, given the narrow scope of appellate review and the record before us. referee's findings misconduct are of fact and unchallenged; we conclusions uphold them of on law The as to appeal. We impose a public reprimand, restitution, and costs. ¶4 Attorney Glenn Blise was admitted to practice law in Wisconsin in 1988. Attorney Blise communicate with He has practiced law in Kenosha. was publicly clients. reprimanded See Public for Reprimand In 2003 failing of to Glenn J. Blise, No. 2003-18. ¶5 Attorney The OLR's Blise's complaint 2002 charges criminal misconduct defense of his arising from client, S.W. Following the disciplinary hearing, the referee concluded the OLR proved four of the six alleged violations, as follows: ¢ By failing to communicate with S.W. about the status of his case and failing 2 to promptly comply with No. reasonable requests the post-conviction for information relief with efforts, 2007AP2604-D respect Attorney to Blise violated SCR 20:1.4(a);1 ¢ By failing to respond to repeated requests from S.W. to discuss the status of his appeal, and by assuming without confirmation or explanation that S.W. did not wish to risk further proceedings after a successful appeal, Attorney Blise failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions in violation of SCR S.W. that 20:1.4(b);2 ¢ By failing to give reasonable notice to Attorney Blise was abandoning appellate efforts, and by not allowing time for other counsel to be employed before the appeal deadlines were missed, Attorney 1 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 Chapter 20 of the Wisconsin Supreme Court Rules will be to those in effect prior to July 1, 2007. SCR 20:1.4(a) provided, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." 2 SCR 20:1.4(b) stated, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 3 No. 2007AP2604-D Blise failed to take steps reasonably practicable to protect a client's interests, contrary to SCR 20:1.16(b);3 ¢ By failing to refund the $5,000 portion of the fee not earned at the time he abandoned his representation of S.W., Attorney Blise failed to refund an advance payment of a fee that had not been earned, contrary to SCR 20:1.16(d).4 ¶6 The referee concluded, however, the OLR had not established two counts alleging misconduct during the course of the OLR those investigation. two counts. public reprimand. As The referee discipline, recommends the referee dismissal of recommends a The referee also recommends Attorney Blise pay $5,000 restitution to S.W. for the unearned fees and the costs of this proceeding. 3 SCR 20:1.16(b) provided, in part, "Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, . . . ." 4 SCR 20:1.16(d) stated: 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 or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 4 No. ¶7 2007AP2604-D The sole issue on appeal is whether Referee Decker erroneously exercised his discretion in denying Attorney Blise's motion to adjourn the disciplinary hearing. review the record to examine the Accordingly, we events surrounding the scheduling of the disciplinary hearing. ¶8 The OLR filed the disciplinary Attorney Blise in November 2007. was scheduled diagnosed to undergo with a In September 2008 Attorney malignant emergency against The disciplinary hearing was initially set for October 6, 2008. Blise complaint brain surgery. As tumor referee adjourned the October 6, 2008, hearing. was result, a and the The referee held proceedings in abeyance pending a determination of Attorney Blise's post-surgical condition. ¶9 A scheduling conference was held on January 21, 2009. Attorney Blise was undergoing chemotherapy at the time. scheduling never conference, knows how Attorney chemotherapy Blise will stated affect that him, he At the because may flexibility with respect to scheduling the hearing date.5 he need With that said, the parties agreed the disciplinary hearing could be set for Monday, March 23, 2009. ¶10 On March 19, 2009, the Thursday before the hearing, Attorney Blise alerted the OLR's counsel that his chemotherapy schedule had been altered and he was suffering from the effects 5 The parties have not provided the court with a record of the January 21, 2009, scheduling conference; we accept Attorney Blise's statement in his appellate brief that he had made this statement. 5 No. of chemotherapy. 2007AP2604-D Attorney Blise requested an adjournment of the March 23 hearing, anticipating enough to participate. he would not be feeling well The next day, March 20, in a three-way telephone conference with counsel, the referee declined to rule on the adjournment request due to the short notice, the inability to make a record, and the possibility that Attorney Blise's condition would change by the following Monday. ¶11 On scheduled Monday, March disciplinary 23, hearing, 2009, the at the referee parties' arguments regarding adjournment. outset of the considered the The OLR registered its objection, noting that Attorney Blise had provided a medical update in January 2009 advising he had resumed, in some form, the practice of could be law and scheduled. sympathetic to had The Attorney agreed OLR's Blise's the disciplinary counsel suffering explained from hearing he recovery was from cancer, yet no medical confirmation of the problems associated with the effects of chemotherapy had been received. The OLR acknowledged Attorney Blise stated on the telephone he had been suffering from diarrhea, nausea, and some vertigo. The OLR stated, however, it was unclear whether these symptoms affected Attorney Blise's ability to participate by telephone. observed disabled, Attorney and Blise coherently was not hospitalized, articulated his did position. The OLR not The seem OLR stated Attorney Blise's demeanor on the telephone indicated he appeared quite capable of defending himself. ¶12 The OLR argued it had not been totally heartless and had suggested many accommodations. 6 The OLR noted it had offered No. 2007AP2604-D Attorney Blise the choice of the hearing location and a delayed starting time. Also, the OLR said, Attorney Blise should be afforded whatever breaks he needed. to forego questioning Attorney In addition, the OLR agreed Blise if he would agree deposition transcript could be received as evidence. said Attorney Blise showed no interest in the his The OLR suggested accommodations and simply stated he would not participate in the hearing. ¶13 The OLR pointed out that two witnesses had traveled from the Kenosha and Chicago areas to attend the hearing, had been waiting for the hearing for some time and, because of the claim for restitution, the hearing encompassed more than simply discipline. he would The OLR argued that Attorney Blise's position that need to choose the day to schedule the hearing according to his chemotherapy schedule essentially afforded him the power to veto any day that would be scheduled. suggested the matter should proceed and, if The OLR Attorney Blise wished to cross-examine witnesses by telephone, the OLR had no objection. ¶14 Attorney Blise responded he would obtain a doctor's excuse for not participating in the hearing that day. Attorney Blise said it had been six months since his surgery and he would be undergoing chemotherapy until the end of the year. He advised he would never know beforehand how chemotherapy would affect his ability to participate. He stated he had telephoned the OLR the previous week to advise he was not feeling well, in 7 No. 2007AP2604-D order to avoid witnesses having to travel unnecessarily from out of town. ¶15 Attorney Blise explained that while he may have felt well enough to participate for a short time, he was concerned with the morning. length of the hearing, which could last the whole He noted he had the right to testify on his own behalf and intended to exercise that right. He explained that due to his symptoms, he anticipated he would need frequent breaks and would be distracted by his discomfort. He requested the hearing be rescheduled for sometime in April 2009, and wished to have flexibility with respect to setting the hearing date due to his chemotherapy regimen. ¶16 The referee determined the record was inadequate to justify the type of adjournment Attorney Blise had proposed. The referee ruled that Attorney Blise should proceed on the speakerphone and, if he needed breaks, he should not hesitate to take them. would obtain Attorney Blise replied he would not proceed and medical verification participate that morning. that he was not fit to The referee proceeded to conduct the hearing in Attorney Blise's absence. ¶17 The following day, Attorney Blise submitted a letter requesting the referee excuse his absence from the hearing, and stating he would be able to proceed in the future as long he could have two weeks after his chemotherapy to deal with its unpleasant side effects. His letter was accompanied doctor's medical verification, dated March 23, stating: 8 by his No. 2007AP2604-D This is to certify that Glenn Blise is currently under my care for treatment of his brain tumor. He is receiving monthly chemotherapy, the last cycle of which was delayed related to low blood counts. Please excuse him from the hearing that he had scheduled on March 23, 2009. Please work with Glenn in regards to scheduling required hearings around his monthly chemotherapy schedule. ¶18 On April 6, 2009, the OLR submitted a post-hearing brief and cover letter, noting its brief was in keeping with the referee's directions following the March 23 hearing. provided copies of the letter and brief to The OLR Attorney Blise. Attorney Blise did not submit a post-hearing brief. ¶19 On May 27, 2009, this court requested the referee to provide a status update. Copies of the request for a status update were sent to the parties. The next docket entry is August 12, 2009, at which time the referee filed his report and recommendation. ¶20 In his report, Referee Decker concluded that Attorney Blise had not provided a medical justification for his absence from the hearing. The referee found, "The doctor's letter did not advise that [Attorney] Blise's medical condition precluded his participation in that day's hearing or otherwise describe medical limitations on his activities." The referee noted Attorney Blise had appeared pro se throughout the disciplinary proceedings. The referee concluded from the hearing was not justified. Attorney Blise's absence The referee made findings and conclusions in support of the four counts of professional misconduct and recommended a public reprimand be imposed. 9 No. ¶21 2007AP2604-D On appeal, Attorney Blise argues his medical condition warranted an adjournment. He states that during his treatment he effects experiences patients, vomiting. such the as side nausea, often diarrhea, suffered weakness, by cancer fatigue, and He contends his chemotherapy in March 2009 had been rescheduled, which meant he would be experiencing the side effects during the week of March 23, 2009. ¶22 Attorney Blise says that after the March 20 telephone conference, he understood the purpose of the March 23 hearing would be to make a record for the adjournment. He believed that by securing a doctor's explanation for his absence, a future hearing date could be set. Attorney Blise states his discomfort after chemotherapy causes him to lose focus and to be unable to participate effectively during the hearing. As a result, he argues, the OLR's accommodations offered little in the way of realistic alternatives, given the circumstances. ¶23 Attorney Blise objects to proceeding without the opportunity to cross-examine witnesses or testify on his own behalf.6 to by He argues that cross-examination in person, as opposed telephone, is significant. He says he offered an alternative date as early as April 2009 but, instead, counsel and the referee participate. plowed forward without allowing him to He asks the record be reopened to permit him to cross-examine the witnesses and to testify on his own behalf. 6 The referee accepted Attorney Blise's deposition testimony into evidence. 10 No. ¶24 2007AP2604-D In reviewing a referee's decision on an adjournment request, we apply the same standards an appellate court employs when reviewing a circuit court's decision. The referee's role is the same as that of a trial judge in a civil action. See In re Disciplinary Proceedings Against Haberman, 128 Wis. 2d 390, 382 N.W.2d 439 (1986). The referee has the powers of a judge trying a civil case and conducts the hearing as a trial of a civil action to the court. See SCR 22.16(1). civil procedure and evidence apply. ¶25 The rules of Id. As in a civil trial, the grant of an adjournment in an attorney disciplinary hearing is a matter of discretion and, to overturn the referee's ruling, prejudice must be shown. A continuance delaying a trial is not a matter of course. An adjournment must be warranted, and a request for such adjournment is ". . . always addressed to the sound discretion of the trial court, and prejudice must be made to appear in order to set aside its ruling thereon." Smith v. Plankinton de Pulaski, 71 Wis. 2d 251, 257, 238 N.W.2d 94, 98 (1976) (citations omitted). ¶26 Appellate review of a discretionary decision is deferential: "We will sustain a discretionary decision so long as the circuit court has examined the relevant facts, applied a proper standard of a law, and, conclusion using that a a demonstrated reasonable rational process, reached judge could reach." Indus. Roofing Serv., Inc. v. Marquardt, 2007 WI 19, ¶84, 299 Wis. 2d 81, 726 N.W.2d 898. ¶27 There is no dispute that at the time of his adjournment request, Attorney Blise was undergoing chemotherapy 11 No. for cancer. 2007AP2604-D There is no dispute he could not anticipate how he would respond to his treatments. effects of chemotherapy nausea, and vertigo. accommodations as cause As Attorney Blise stated, the discomfort, including diarrhea, Attorney Blise was certainly entitled to well as understanding with respect challenges he faces while making his recovery. to the We sympathize with the challenges Attorney Blise faces with treatment and very well may have ruled differently. Our role on appeal, however, is not to substitute our discretion for that of the referee. See SCR 22.16(1). We must examine the record to determine whether a rational basis exists for the referee's decision to proceed. ¶28 The record reflects the referee's understanding that Attorney Blise disease and was undergoing experiencing treatment the associated with chemotherapy. of discomfort a very and dangerous difficulties The referee had postponed the disciplinary hearing from October 6, 2008, to March 23, 2009, when it was agreement. rescheduled with Attorney Blise's cautious We conclude the referee was entitled to find that the medical verification did not address whether Attorney Blise was medically incapacitated and unable to participate in the March 23 hearing. conclude the Also, we conclude the referee was entitled to medical verification did not support Attorney Blise's proposal to adjourn subject to postponement due to the unpredictable treatment schedule and its effects. indicates the referee understood the effects of The record chemotherapy would cause discomfort, be distracting, and were unpredictable. 12 No. However, the record also the demonstrates 2007AP2604-D referee's consideration of the obligation to balance the needs of Attorney Blise with those of the lawyer regulation system, the grievant, and the witnesses. were willing permitting time, to a accommodate choice frequent telephone. The record shows the OLR and the referee of breaks Attorney hearing as Blise's location, requested, a and discomfort delayed by starting participation by We conclude the record fails to reveal the referee erroneously exercised his discretion. ¶29 telephone Attorney Blise argues the proposed accommodation of a hearing was prejudicial, however, because it would eliminate his opportunity to cross-examine witnesses in person. Attorney Blise does not, however, identify what fact-finding is disputed. raised. He He does not submitted OLR's arguments. indicate no what post-hearing defense brief he would have challenging the He made no offer of proof and does not suggest any evidence he would submit if granted a new hearing. In the absence of a demonstrated factual dispute, we conclude Attorney Blise does not show prejudice by the referee's order denying a second adjournment. See Smith v. Plankinton de Pulaski, 71 Wis. 2d at 257 ("prejudice must be made to appear in order to set aside" the court's denial of an adjournment). As a result, we decline to set aside the referee's determination. We approve and adopt the referee's findings of fact and conclusions of law as to four counts of misconduct, appeal. 13 which are unchallenged on No. ¶30 2007AP2604-D We independently determine the appropriate discipline. See In re Disciplinary Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d 894. We consider the seriousness of the misconduct, the need to protect the public, courts, and legal system from the repetition of misconduct, the need to impress upon the attorney the seriousness of the misconduct, and the need to deter other attorneys from engaging in similar Against misconduct. Arthur, 2005 See WI In 40, re ¶78, Disciplinary 279 Wis. 2d Proceedings 583, 694 N.W.2d 910. Upon our independent review, we are satisfied the recommended sanction discipline conclude for the the of four record a public counts supports of the reprimand is misconduct. referee's appropriate We further recommendation of $5,000 restitution for unearned attorney fees. ¶31 this We determine Attorney Blise shall pay the costs of proceeding. Under SCR 22.24(1m),7 the policy is to impose costs on the respondent. court's general To award less than full costs, the court must find "extraordinary circumstances." Id. Attorney Blise has not objected to costs, has not claimed 7 SCR 22.24(1m) reads, in part: The court's general policy is that upon a finding of misconduct it is appropriate to impose all costs, including the expenses of counsel for the office of lawyer regulation, upon the respondent. In cases involving extraordinary circumstances the court may, in the exercise of its discretion, reduce the amount of costs imposed upon a respondent. 14 No. 2007AP2604-D extraordinary circumstances to justify a reduction, and has not requested a deferment of his obligation to pay costs.8 ¶32 IT IS ORDERED that Glenn J. Blise be publicly reprimanded for his professional misconduct. ¶33 IT restitution IS in FURTHER the total ORDERED sum that of Glenn $5,000 to J. Blise pay If the S.W. restitution is not paid within 60 days of this order, Glenn J. Blise's license to practice law in Wisconsin shall be suspended until further order of the court. ¶34 of this IT IS FURTHER ORDERED that within 90 days of the date order, Glenn J. Blise pay to Regulation the costs of this proceeding. the Office of Lawyer If 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, Glenn J. Blise's license to practice law in Wisconsin shall be suspended until further order of the court. ¶35 IT IS FURTHER ORDERED that the restitution is to be paid in full prior to paying costs to the Office of Lawyer Regulation. 8 On February 25, 2010, the OLR filed a statement seeking costs of $12,308.38. Attorney Blise has filed no objection as to costs. 15 No. 1 2007AP2604-D
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