Office of Lawyer Regulation v. Ryan D. Lister
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2010 WI 108 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP2766-D In the Matter of Disciplinary Proceedings Against Ryan D. Lister, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Ryan D. Lister, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST LISTER OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 1, 2010 April 15, 2010 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: BRADLEY, J., dissents (opinon filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant there was a brief and oral argument by Attorney Ryan Lister. For the complainant-respondent there was a brief by Attorney Robert G. Krohn and Roethe Pope Roethe LLP, Edgerton, and oral argument by Attorney Robert G. Krohn. 2010 WI 108 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP2766-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Ryan D. Lister, Attorney at Law: FILED Office of Lawyer Regulation, SEP 1, 2010 Complainant-Respondent, A. John Voelker Acting Clerk of Supreme Court v. Ryan D. Lister, Respondent-Appellant. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER referee's CURIAM. findings, Attorney conclusions, lawyer discipline matter. Ryan and Lister appeals recommendation in the this The referee, Richard P. Mozinski, determined the Office of Lawyer Regulation (OLR) met its burden to prove termination violations of investigation. of duties representation, Referee of diligence, and cooperation Mozinski recommends a communication, with 90-day the OLR license suspension, restitution of an unearned fee ($135.60), and costs. No. ¶2 evidence Attorney Lister supporting challenges each of the the four 2008AP2766-D sufficiency violations. of He the also objects to a 90-day suspension and argues a public reprimand would be sufficient discipline. Attorney Lister does not dispute restitution and does not challenge the imposition of costs. ¶3 After fully reviewing the matter, we conclude the record supports the referee's findings of fact and conclusions of law. We uphold the referee's determination that Attorney Lister committed four counts of misconduct as alleged in the OLR's complaint. Lister's Under the circumstances, we reject Attorney argument discipline. We that a conclude license suspension. public his reprimand misconduct is sufficient warrants a 60-day Finally, we order that Attorney Lister pay restitution of the $135.60 unearned fee together with the costs of this proceeding. ¶4 Attorney Lister was licensed to practice Wisconsin in 1976 and has practiced in Wausau. law in In 1986 he was publicly reprimanded for misconduct involving neglect of legal matters, failure to carry out a contract of employment with a client, and conduct constituting misrepresentation. Disciplinary Proceedings N.W.2d 370 (1986). Against Lister, 127 See In re Wis. 2d 453, 380 Effective June 15, 2007, Attorney Lister's license was suspended for five months for violations involving seven separate grievance investigations. See In re Disciplinary Proceedings Against Lister, 2007 WI 55, 300 Wis. 2d 326, 731 N.W.2d 254. His misconduct violated his duties of competence, 2 No. 2008AP2766-D diligence, keeping a client informed, cooperation with an OLR investigation, fees. His dishonesty. ¶5 candor to misconduct a tribunal, also and involved to refund advanced misrepresentation and Id., ¶55. The present disciplinary action arose from Attorney Lister's representation of J.H. in a federal lawsuit against Marathon County and its sheriff, relating to the jail personnel's treatment of J.H. while confined in the Marathon County jail. In 2001 J.H. had retained Attorney Lister after her arrest in Marathon County for first offense operating while intoxicated (OWI). reckless driving representation of She ultimately pled to a reduced charge of and paid J.H. in a fine. the After OWI case, completing Attorney his Lister suggested to J.H. that she sue Marathon County regarding her treatment while in jail. ¶6 On May 8, 2004, J.H. signed a contingency fee agreement providing Attorney Lister's fee would amount to onethird of any recovery. J.H. paid Attorney expended $364.40 for filing and postage. Lister $500; he He did not return to J.H. the unused portion of the $500 payment. ¶7 On January 25, 2007, Attorney Lister filed a federal lawsuit on J.H.'s behalf but never served Marathon County or the sheriff.1 The U.S. District Court for the Western District of 1 At the disciplinary hearing before the referee, Attorney Lister admitted he had "dropped the ball" and no one had been served. 3 No. Wisconsin sent Attorney Lister a notice that 2008AP2766-D a telephone pretrial conference was scheduled for March 20, 2007. ¶8 On March 20, 2007, J.H.'s federal lawsuit dismissed with prejudice for lack of prosecution. order stated March 20, the 2007, plaintiff pretrial had failed conference. to At was The dismissal appear the for the disciplinary hearing, Attorney Lister did not dispute he failed to appear for the pretrial conference, scheduling notice. but argued he had not received the He also claimed he did not receive notice of the dismissal. ¶9 The referee noted that when Attorney Lister filed his pleadings in federal court, he included a postage-paid return envelope with his Wausau address. Also, Attorney Lister had admitted the notices of the scheduling conference and dismissal were mailed by the U.S. District Court for the Western District of Wisconsin. The referee found that Attorney Lister's address had not changed before March 2007. Attorney Lister's scheduling notice assertion and The referee found incredible that dismissal he did order, not given receive the the undisputed evidence that they had been sent to Attorney Lister's law office address. ¶10 repeated J.H. testified attempts to she contact had Attorney status of her federal action. dismissal was through been unsuccessful Lister in her regarding the The first she learned of the Attorney Jay consulted regarding her federal lawsuit. 4 Kronenwetter, whom she The referee found that No. Attorney Lister had not advised J.H. the of 2008AP2766-D scheduling conference and dismissal of her federal claim with prejudice. ¶11 Attorney Kronenwetter testified he requested J.H.'s file in a June 15, 2007, telephone conversation with Attorney Lister. Attorney Kronenwetter said he confirmed his request by letter the same day. After receiving these requests, Attorney Lister did not call J.H. to confirm her permission to send the file. Also during the telephone conversation, Attorney Lister did not advise Attorney Kronenwetter the federal lawsuit had been dismissed. Sometime after June 15, 2007, Attorney Kronenwetter again telephoned Attorney Lister but was unable to reach him. Attorney Kronenwetter testified he was unable to leave a message because, each time he called, he received a recording that the voicemail box was full or unable to receive messages. ¶12 telephone Lister Eventually, discussion promised to Attorney with Kronenwetter Attorney provide the Lister, J.H. had in file. a second which Attorney When Attorney Kronenwetter eventually received J.H.'s file, it contained no indication the federal lawsuit had been dismissed. Kronenwetter dismissed testified when he he discovered accessed the J.H.'s federal lawsuit court's Attorney had been electronic docket. ¶13 Attorney Kronenwetter testified file in late September 2007. he received J.H.'s Attorney Lister, on the other hand, claimed he conveyed the file by August 15, 2007. Attorney Lister claimed he did not promptly transmit the file because 5 No. 2008AP2766-D doing so, he believed, would have been practicing law during his license suspension. He said he sought ethics advice to determine whether he could copy and transfer the file without violating a duty not to practice law during his suspension. ¶14 delivery The referee concluded the dispute over the date of of the file was immaterial because Attorney Lister provided no reasonable explanation as to why it would have taken two months to transfer the file. The referee noted the supreme court rules provide a 15-day grace period to wind up a suspended attorney's concern was practice, not so Attorney grounded. The Lister's referee claimed rejected ethical Attorney Lister's explanation as not credible, noting Attorney Lister had testified he had been busy on the day Attorney Kronenwetter had requested the file. ¶15 The OLR also presented the testimony of Attorney Dawn Lemke, a member of the OLR District 16 investigative committee, who was assigned in May 2008 to investigate J.H.'s grievance. Attorney Lister had received and replied to various letters from the OLR during its initial investigation. Attorney Lemke testified as to her subsequent unsuccessful attempts to elicit additional information from Attorney Lister regarding grievance. She said she left six voicemail messages on Attorney Lister's telephone answering system in June 2008. of Attorney Lister's outgoing telephone She said all messages "You have reached Lister Law Offices . . . ." the had stated, Attorney Lemke was unable to reach Attorney Lister and her voice mail messages were not returned. 6 No. ¶16 2008AP2766-D Attorney Lemke explained that on June 5, 2008, for example, she left a message identifying herself as a member of the OLR District 16 committee investigating J.H.'s grievance. Attorney Lemke received an outgoing recorded message by Attorney Lister, stating it was May 30 and he would be back in the office on June 2. Attorney Lemke left additional messages on Attorney Lister's phone answering service on June 6, June 9, June 10, and June 11, and each time received the same recorded voice mail message. ¶17 Finally, on June 12, she left a sixth message. On this occasion, she received a recorded message stating Attorney Lister would be back on June 12. Attorney Lemke requested Attorney Lister return her call and advised him of her previous calls. phone Attorney Lemke testified she tried calling a different number for Attorney Lister that was noted on his letterhead but, when she called that number, she learned it had been disconnected. She received no return phone call from Attorney Lister. ¶18 The referee rejected Attorney Lister's explanations in defense of the four counts. referee found experienced Attorney problems With respect to Count One, the Lister's with persuasive or credible. mail testimony that being he had received was not The referee observed the evidence of mailing raised the rebuttable presumption that the addressee had received the letter and, once that presumption had been established, the burden shifted to the party challenging receipt to present credible evidence of 7 non-receipt. See American No. 2008AP2766-D Family Mut. Ins. Co. v. Golke, 2009 WI 81, ¶36, 319 Wis. 2d 397, 768 N.W.2d 729. The referee concluded Attorney Lister's testimony was not specific as to the time frame in which the federal court notification had been sent, and a bare assertion he did not receive the federal court notice was insufficient to create credible evidence of non-receipt. As a result, the referee concluded the evidence supported Count One: By failing to have the defendants served in [J.H.]'s federal civil rights lawsuit and by failing to appear at a court telephonic scheduling conference on March 20, 2007, or file a preliminary pretrial conference report, all as required by the Federal District Court for the Western District of Wisconsin, [Attorney] Lister violated SCR 20:1.3.2 ¶19 As for Count Two, the referee noted that Attorney Lister acknowledged he had been informed the federal case was assigned to a procedurally demanding judge. The referee found Attorney Lister was perpetually unavailable to J.H. and made no reasonable efforts to keep her informed of the status of her case. The referee observed Attorney Lister admitted receiving information regarding the dismissal of the case from successor counsel while it was Attorney Lister's professional duty to have the case knowledge necessary to advise J.H. of the dismissal. The referee concluded Attorney Lister failed to fulfill that duty. As a result, the referee determined: By his failure to inform [J.H.] that the United States District Court for the Western District of Wisconsin 2 SCR 20:1.3 provides, "A lawyer shall act with reasonable diligence and promptness in representing a client." 8 No. 2008AP2766-D had dismissed her lawsuit, [Attorney] Lister violated former SCR 20:1.4(a).3 ¶20 With respect to Count Three, the referee rejected Attorney Lister's explanation that he did not timely forward J.H.'s file to Attorney Kronenwetter due to ethical concerns. See SCR 22.26(1)(d) (providing 15 days to wind up an attorney's practice following a license suspension). The referee stated it was protect incumbent upon Attorney Lister to his client's interests by making immediate arrangements to copy the 38-page file and transmit it to Attorney Kronenwetter. Therefore, the referee concluded: By failing to promptly respond to numerous requests from successor counsel to forward to successor counsel the [J.H.] case file and by failing to refund to [J.H.] the unused balance of $135.60 of the $500 retainer fee previously advanced, [Attorney] Lister violated SCR 20:1.16(d).4 ¶21 Additionally, the referee concluded, Attorney Lister's testimony that he was having a problem with his phone service 3 Former SCR 20:1.4(a) (effective through June 30, 2007) stated, "A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." 4 SCR 20:1.16(d) provides as follows: 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 or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 9 No. 2008AP2766-D was insufficient to provide any defense to Count Four. The referee said Attorney Lister received, or should have received, and responded to Lemke's six telephone calls regarding the grievance investigation. The referee noted that during June 2008 not Attorney lawyer. He Lister was presented no suspended records from demonstrating what days he had problems. Attorney Lister's constituted a failure failure to to respond cooperate investigator assigned to the grievance. and was his a phone full-time service The referee concluded to with Lemke's the inquiries District The referee concluded: By failing to return any of the six telephone messages that OLR's District 16 Committee Investigator left for [Attorney] Lister during the period June 5, 2008 through June 12, 2008, [Attorney] Lister violated SCR 21.15(4),5 22.03(2),6 and 22.04(1).7 5 SCR 21.15(4) states: Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's wilful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys. 6 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 10 16 No. ¶22 On the basis of these findings and 2008AP2766-D conclusions, Referee Mozinski concluded a 90-day suspension was warranted. He noted Attorney aggravating misconduct Lister's factor, involving charged Lister's misconduct distress to here. Thus, demeanor. which the essentially The caused J.H., disciplinary a was referee significant evident referee history was an of the same type found that Attorney of emotional degree from her concluded, testimony Attorney and Lister's misconduct resulted in harm to the client. ¶23 The referee observed Attorney Lister had provided some evidence of mitigating factors in the form of testimony from a professional colleague, Attorney Peter Rotter, who had shared office space with Attorney Lister for a time. Lister had elicited testimony from Attorney Also, Attorney Jay Kronenwetter that he believed Attorney Lister was concerned about practicing ethically and took his ethical duties seriously. The referee stated: The quandary then is how can an attorney who on the one hand exhibits a high motivation towards professional legal standards then commit repeated acts questions, furnish documents, and present information deemed relevant to the investigation. 7 any SCR 22.04(1) states: The director may refer a matter to a district committee for assistance in the investigation. A respondent has the duty to cooperate specified in SCR 21.15(4) and 22.03(2) in respect to the district committee. The committee may subpoena and compel the production of documents specified in SCR 22.03(8) and 22.42. 11 No. 2008AP2766-D of misconduct, including those in the instant case. Part of the problem appears to be [Attorney] Lister does not appreciate the need to conform to ethics standards not strictly as he perceives them, but as written. The other conclusion that can be drawn is that [Attorney] Lister needs to engage in the type of legal practice that will facilitate his ability to maintain appropriate client communication and meet deadlines. This may require some significant changes in the type and number of cases [Attorney] Lister handles in the future. (Emphasis in original.) ¶24 bore Referee Mozinski similarity to In observed re this Disciplinary disciplinary Proceedings matter Against Converse, 2004 WI 10, 268 Wis. 2d 562, 675 N.W.2d 238, which imposed a Converse 90-day had suspension. committed The similar referee noted misconduct, had Attorney a prior disciplinary history, and also had failed to cooperate with an OLR investigation. As a result, Referee Mozinski recommended Attorney Lister's license to practice law be suspended for 90 days. ¶25 On appeal, Attorney Lister presents two issues. First, Attorney Lister argues the OLR failed to meet its burden of proving each of the four counts. Second, he contends the sanction of a public reprimand is all that would be required to impress upon him the importance of complying with the rules of professional conduct. ¶26 Attorney Lister claims the referee's unsupported by the record and clearly erroneous. findings are He says his character witnesses established his dedication and strong work ethic, and his mistake in failing to serve the summons and complaint was not a failure to act with reasonable diligence. 12 No. 2008AP2766-D Attorney Lister says he told his client he had not done a civil rights action in a long time, did not want to do an action, and tried to find counsel to represent her. Attorney Lister explains his client had taken vacation time in California and was uncertain about filing the civil rights action. Attorney Lister contends he filed the action to protect her claim and, when he became aware of the dismissal, he advised Attorney Kronenwetter that he would assist in any way he could to reopen the case. Therefore, Attorney Lister claims the referee's finding of a lack of diligence is clearly erroneous. ¶27 Next, Attorney Lister argues he did not receive the federal scheduling order and the order of dismissal. He claims he zealously is experienced in federal represents his clients. court matters and Also, Attorney Lister claims, if he had received the order of dismissal, he would have moved to have the matter reopened. He says he showed full acceptance of responsibility when he offered Attorney Kronenwetter assistance in reopening the matter. did not receive the He claims the record establishes he documents and, therefore, could not be faulted for failing to keep J.H. informed. As a result, he contends, keep he did not violate his duty to his client informed as alleged in Count Two. ¶28 Next, Attorney Lister argues that Attorney Kronenwetter's testimony that he called Attorney Lister is a physical impossibility. Attorney Lister says that around June 15, 2007, the telephone number was terminated and never reinstated. He also claims he surrendered the J.H. file to 13 No. 2008AP2766-D Attorney Kronenwetter as soon as reasonably practicable. addition, he says circumstances, offered he offered financial provided to assist an explanation in to assistance reopening Attorney In of file, the the and Kronenwetter. Therefore, Attorney Lister argues, the OLR failed to prove he violated his duty to a client when terminating representation, as alleged in Count Three. ¶29 no With respect to Count Four, Attorney Lister contends evidence committee. indicates He says he his hid anything the district testimony undisputed from was that he contacted another district committee member to see whether any additional information was needed. referee failed to consider his Attorney Lister argues the reinstatement in November of 2007, and due to tremendous financial problems, he could not hire a secretary Attorney Lister and instead he claims hired numerous had a telephone problems service. with the service; it would not accept new messages and, therefore, he was not receiving messages left for him. Attorney Lister says there came a point when he changed services and corrected the problem. Attorney Lister asserts that because he did not hide anything from the district committee, the OLR failed to prove the has the burden of violations charged in Count Four. ¶30 We demonstrating are unpersuaded. its The allegations of satisfactory, and convincing evidence. referee's clearly findings erroneous. of fact In re will be OLR misconduct clear, See SCR 22.16(5). adopted Disciplinary 14 by unless Proceedings they The are Against No. 2008AP2766-D Paget, 2003 WI 26, ¶12, 260 Wis. 2d 604, 660 N.W.2d 255. review conclusions of law de novo. In re We Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. ¶31 Attorney Lister's arguments essentially challenge the referee's assessment of weight and credibility of the testimony. He asks this court to overturn the referee's determination that his testimony in support of his defenses was neither credible nor persuasive. Attorney Lister also asks the court to make inferences opposing those drawn by the referee. he asks the court to infer from his For instance, character witnesses' testimony that because he is a zealous advocate, he could not have lacked diligence in representing J.H. ¶32 Attorney Lister's standard of review. arguments neglect the court's An appeal from the referee's report is conducted under the rules governing civil appeals to the supreme court. SCR referee is 22.17(3). the When ultimate testimony arbiter of is conflicting, credibility. In the re Disciplinary Proceedings Against Pump, 120 Wis. 2d 422, 426-27, 355 N.W.2d 248 (1984). In reviewing the referee's findings of fact: The test for an appellate court to apply in matters of witness credibility is whether "the trier of facts could, acting reasonably, be convinced to the required degree of certitude by the evidence which it had a right to believe and accept as true." In re Disciplinary Proceedings Against Elverman, 2008 WI 28, ¶41, 308 Wis. 2d 524, 746 N.W.2d 793. 15 An appellate court does No. 2008AP2766-D not substitute inferences for reasonable inferences drawn by the fact-finder. Cogswell v. Robertshaw Controls Wis. 2d 243, 250, 274 N.W.2d 647 (1979). not demonstrated the referee's Co., 87 Attorney Lister has credibility assessments and inferences are clearly erroneous. ¶33 It is undisputed that Attorney Lister failed to serve the defendants in J.H.'s federal civil rights lawsuit and failed to appear at the court's telephone status conference, supporting the determination of a lack of diligence (Count One). Also, it is undisputed Attorney Lister failed to inform J.H. that her federal lawsuit was dismissed, supporting a finding that he failed to keep his client reasonably informed (Count Two). ¶34 In addition, Attorney Lister admits he did not transfer J.H.'s file to Attorney Kronenwetter for at least two months and does not dispute he failed to refund promptly J.H.'s unused retainer determination fee. that As a Attorney result, Lister the record violated termination of representation (Count Three). shows Attorney messages from Lister the failed OLR's to District return 16 his supports duties a upon The record also numerous committee telephone investigator, supporting the conclusion Attorney Lister failed to cooperate with the OLR investigator (Count Four). Therefore, we approve and adopt the referee's findings and conclusions that the OLR met its burden to prove the four counts of misconduct by evidence that is clear, satisfactory, and convincing. ¶35 Next, we consider Attorney Lister's challenge to the referee's recommendation of a 90-day suspension. 16 While we take No. 2008AP2766-D the referee's recommendation as to the discipline into account, we are not bound by it. See In re Disciplinary Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d 894. We must consider the seriousness of the misconduct, as well as the need to protect the public, courts, and legal system from repetition of misconduct and to deter attorneys from engaging in similar misconduct. See In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279 Wis. 2d 583, 694 N.W.2d 910. ¶36 Attorney Lister argues Wisconsin case law does not support the referee's recommended sanction of a 90-day license suspension. Attorney Lister relies on In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501, where the attorney advised a client to engage in activity that, if completed, could have resulted in criminal charges. A 60-day suspension was ordered. Id., ¶2. Attorney Lister argues that none of the allegations here rise to the seriousness of Nussberger case. Attorney the allegation establish activity in the his concern with ethics and Attorney Lister says it is undisputed he zealously represents his clients. matter criminal He claims his witnesses, Attorney Rotter and Kronenwetter, diligence. of arose reinstatement before he ethical manner. has He points out the allegations in this his previous practiced in suspension a very and, since his professional and He claims a public reprimand, together with costs, would constitute a substantial penalty and impress upon him the need to comply with supreme court rules. 17 No. ¶37 The OLR responds that the referee properly recommended a 90-day suspension. The OLR notes progressive discipline is endorsed by this court. The OLR 2008AP2766-D contends See Nussberger, 296 Wis. 2d 47, ¶27. Attorney Lister's misconduct is aggravated, particularly in consideration of his disciplinary history. See In re Disciplinary Proceedings Against Wells, 2000 WI 1, ¶9, 231 Wis. 2d 364, 603 N.W.2d 743 (an extended pattern of professional misconduct is an aggravating factor). ¶38 Additionally, the OLR argues that Attorney Lister does not assume personal responsibility but blames others. says Attorney Lister's claim that his telephone The OLR service defective was found by the referee to be incredible. was The OLR contends the referee properly found Attorney Lister appears not to appreciate the need to conform to ethical rules. According to the OLR, because Attorney Lister has substantial experience and has previously violated the same ethical rules, he should have been more cautious in adhering to rules of professional conduct. The OLR contends the referee appropriately addressed the harm to J.H., who was deprived of her opportunity to pursue a federal civil rights claim, causing her emotional distress. The OLR asserts mitigating that factors these elicited aggravating from the factors testimony overcome of any colleagues regarding Attorney Lister's reputation in the legal community. ¶39 We reject Attorney Lister's sanction to a public reprimand. disciplinary proceeding request to limit the This is Attorney Lister's third involving similar misconduct. The referee found the misconduct caused J.H. harm and that Attorney 18 No. Lister's excuses were not credible. 2008AP2766-D Given Attorney Lister's disciplinary history, his pattern of similar violations, and his hesitation to accept full responsibility for his violations, we are satisfied that a suspension is necessary to achieve the purposes of lawyer discipline.8 ¶40 Attorney Lister is reminded Wisconsin adheres to the practice of progressive Wis. 2d 47, ¶27. suspension is discipline. Nonetheless, necessary suspension of 60 days. and, we do See not instead, Nussberger, conclude impose a a 269 90-day minimal While we share the concerns expressed by the OLR and the referee, we note that each case must turn on its individual facts. We note Attorney Lister's argument that J.H.'s case arose before his previous suspension and, since his reinstatement, he has been very careful to practice ethically. 8 Contrary to Attorney Lister's suggestion, criminal activity is not a prerequisite for a 90-day suspension. See Converse, 268 Wis. 2d 562. Also, the endorsement of colleagues is not necessarily redeeming. Discussing lawyer discipline, the court has observed: The fact that a man has enjoyed a high reputation and won the confidence and trust of his clients does not excuse him, but rather makes his breach of trust the more culpable. The greater a man's ability, the larger his experience, the more clearly should he be able to see and distinguish the moral implications of a breach of his duty. So it is often said the higher a man rises the greater his fall when he yields to temptation or the pressure of circumstances. State v. Bradford, 217 Wis. 389, 393, 259 N.W. 109 (1935). In addition, civic work does not necessarily warrant a lesser sanction. See In re Disciplinary Proceedings Against Jones, 160 Wis. 2d 564, 577, 466 N.W.2d 890 (1991). 19 No. 2008AP2766-D Attorney Lister expresses his awareness that attorneys licensed to practice in Wisconsin are held to the highest standard of conduct and we may expect nothing less from him. We are satisfied that a 60-day license suspension, together with costs and restitution, will impress upon Attorney Lister the need to adhere to rules of professional conduct, and will deter other attorneys from engaging in misconduct. ¶41 On April 27, 2010, the OLR filed a statement seeking costs in the total sum of $9,250.86. dispute the assessment extraordinary of circumstances See SCR 22.24(1m). the Attorney Lister does not and justify to costs a has not reduction presented in costs. In addition, Attorney Lister does not object to the referee's recommendation of restitution. ¶42 Accordingly, we adopt the referee's recommendation that Attorney Lister pay full costs and restitution. ¶43 IT IS ORDERED that the license of Ryan D. Lister to practice law in Wisconsin is suspended for a period of 60 days, effective October 4, 2010. ¶44 IT IS FURTHER ORDERED that within 60 days of the date of this order, Ryan D. Lister shall pay restitution to J.H. in the total sum of $135.60. If the restitution is not paid within the time specified, Ryan D. Lister's license to practice law in Wisconsin shall remain suspended until further order of the court. ¶45 of this IT IS FURTHER ORDERED that within 60 days of the date order Ryan D. Lister pay to the Office of Lawyer Regulation the costs of this proceeding in the sum of $9,250.86. 20 No. 2008AP2766-D If costs are not paid within the time specified and absent a showing of his inability to pay, Ryan D. Lister's license to practice law in Wisconsin shall remain suspended until further order of the court. ¶46 IT IS FURTHER ORDERED that the restitution is to be paid in full prior to paying costs to the Office of Lawyer Regulation. ¶47 IT IS FURTHER ORDERED that Ryan D. Lister shall comply with SCR 22.26 regarding the duties of a person whose license to practice law in Wisconsin has been suspended. 21 No. ¶48 is ANN WALSH BRADLEY, J. Attorney Lister's third (dissenting). disciplinary 2008AP2766-D.awb Given that this proceeding involving similar misconduct, I conclude that the discipline ordered by the majority is too light. I would instead impose a 90-day suspension. ¶49 Referee Mozinski got it right when he recommended that this court impose a 90-day suspension of license as discipline. He weighed the credibility of the testimony presented and the arguments advanced. ¶50 violated The referee duties representation, of and concluded diligence, Attorney communication, cooperation Regulation investigation. that with the Lister termination Office of had of Lawyer This misconduct is similar to the misconduct for which Attorney Lister previously was disciplined by this court in 1986 and again in 2007. Proceedings Against Lister, 127 See In re Disciplinary Wis. 2d 453, 380 N.W.2d 370 (1986); In re Disciplinary Proceedings Against Lister, 2007 WI 55, 300 Wis. 2d 326, 731 N.W.2d 254. ¶51 The majority of the court acknowledges that Attorney Lister's misconduct caused harm to his client and that some of his excuses were not credible. Per curiam, ¶39. that the "Wisconsin discipline." adheres Id., ¶40. to practice of It recognizes progressive Nevertheless, it rejects the referee's recommendation and instead lessens the discipline imposed. ¶52 I think that the majority of the court is headed in the wrong direction. Accordingly, I respectfully dissent. 1 No. ¶53 2008AP2766-D.awb I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 2 No. 1 2008AP2766-D.awb
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