Office of Lawyer Regulation v. Carlos A. Gamino
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2011 WI 42 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP2430-D In the Matter of Disciplinary Proceedings Against Carlos A. Gamiño, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Carlos A. Gamiño, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST GAMIà O OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: June 15, 2011 2011 WI 42 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP2430-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Carlos A. Gamiño, Attorney at Law: FILED Office of Lawyer Regulation, Complainant-Respondent, JUN 15, 2011 v. A. John Voelker Acting Clerk of Supreme Court Carlos A. Gamiño, Respondent-Appellant. ATTORNEY reinstatement proceeding. Attorney's license reinstated with conditions. ¶1 referee, PER CURIAM. Timothy L. We review Vocke, that the recommendation Attorney Carlos A. of the Gamiño's petition seeking the reinstatement of his license to practice law in Wisconsin be granted. review 1 this matter pursuant No appeal has been filed so we to SCR 22.17(2).1 After SCR 22.17(2) states: If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or No. 2006AP2430-D consideration of the referee's report and the entire record, we agree that Attorney Gamiño's petition for reinstatement should be granted, but we impose conditions on his reinstatement as set forth herein. We direct that the costs of the reinstatement proceeding, which total $7,827.83 as of December 13, 2010, be paid by Attorney Gamiño. ¶2 Attorney Wisconsin in 1997. Gamiño was licensed to practice law in His law license was suspended for six months effective January 24, 2006, because he was found to have engaged in a sexual relationship with a client in one matter and a sexual relationship with a juvenile client's mother in another matter. See In re Disciplinary Proceedings Against Gamiño, 2005 WI 168, 286 Wis. 2d 558, 707 N.W.2d 132. He also made false representations about his conduct to a court and to the Office of Lawyer Regulation (OLR) investigators in that matter. Attorney Gamiño was publicly reprimanded on April 28, 2006, for failure to act with reasonable diligence, failure to immediately refund unearned fees, contacting a client after receiving notice that successor counsel had been retained in one matter, and for a trust account violation. Against Gamiño, 2006 WI See In re Disciplinary Proceedings 32, 290 Wis. 2d 1, 712 N.W.2d 873. Attorney Gamiño's petition for reinstatement was granted by this court on September 5, 2007. See In re Disciplinary Proceedings remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter. 2 No. 2006AP2430-D Against Gamiño, 2007 WI 115, 305 Wis. 2d 1, 737 N.W.2d 662. In 2008 Attorney Gamiño was suspended for 18 months for five counts of misconduct relating to his handling of a family law matter in which he failed to obtain information essential to ensure an equitable division of property in a divorce proceeding. See In re Disciplinary Proceedings Against Gamiño, 2008 WI 107, 314 Wis. 2d 514, 753 N.W.2d 521. This misconduct was committed in 2004 and 2005. ¶3 On April 15, 2010, Attorney Gamiño filed a petition seeking reinstatement of his license to practice law. opposed the petition. Public hearings on the The OLR reinstatement petition were held on September 20, November 2, and November 9, 2010. On November 23, 2010, the referee filed a report recommending the court grant the petition for reinstatement. ¶4 Supreme court rule 22.31(1) provides the standards to be met for reinstatement.2 2 Specifically, the petitioner must SCR 22.31(1) provides as follows: The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following: (a) That he or she has the moral character to practice law in Wisconsin. (b) That his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest. (c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to [(4m)] and 22.29(5), are substantiated. 3 No. 2006AP2430-D show by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that he or she has complied with SCR 22.26 and the terms of the order of suspension. SCRs 22.29(4)(a) through In addition to these requirements, (4m)3 provide additional requirements (d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26. 3 SCRs 22.29(4)(a) through (4m) state: The petition for reinstatement shall show all of the following: (a) The petitioner desires petitioner's license reinstated. to have the (b) The petitioner has not practiced law during the period of suspension or revocation. (c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated. (d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities. (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach. (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards. (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent 4 No. that a petition additional for reinstatement requirements are must show. effectively 2006AP2430-D All of these incorporated into SCR 22.31(1). ¶5 we will When we review a referee's report and recommendation, adopt a referee's clearly erroneous. findings of fact unless they are Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. ¶6 The OLR did not dispute that Attorney Gamiño had met several of the Gamiño desires criteria to needed have his for reinstatement. license Attorney reinstated, see SCR 22.29(4)(a); Attorney Gamiño has not practiced law during the period of suspension, see SCR 22.29(4)(b); Attorney Gamiño them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts. (h) The petitioner has fully complied requirements set forth in SCR 22.26. with the (j) The petitioner's proposed use of the license if reinstated. (k) A full description of all of the petitioner's business activities during the period of suspension or revocation. (4m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin lawyers' fund for client protection for all payments made from that fund, or, if not, the petitioner's explanation of the failure or inability to do so. 5 No. 2006AP2430-D has complied fully with the terms of the order of suspension and will continue to comply with them until his license is reinstated, see SCR 22.29(4)(c);4 Attorney Gamiño has maintained competence and learning in the law by attendance at identified educational activities, see SCR 22.29(4)(d); Attorney Gamiño has stated his proposed use of his license if reinstated, see SCR 22.29(4)(j); and Attorney Gamiño provided a full description of all of his business activities during the period of Gamiño worked at suspension, see SCR 22.29(4)(k). ¶7 During his suspension, Attorney Gentile Automotive Group in Racine as a finance director. also continued to manage Gamiño Enterprises, rental business owned by the Gamiño family. a real estate During his day off he is the primary caregiver to his four young children. appeared to be no dispute that Attorney He Gamiño There established compliance with the requirements set forth in SCR 22.26. See SCR 22.29(4)(h). ¶8 The OLR opposed Attorney Gamiño's petition on the grounds that he had failed to meet several of the criteria for reinstatement. Attorney Gamiño's license was suspended for professional misconduct based on the manner in which he jointly represented a married couple in a divorce proceeding that resulted in a divorce agreement that was patently unfair to the 4 There was some question as to whether Attorney Gamiño had satisfied the requirement of obtaining adequate continuing legal education credits as directed by the court in its decision suspending Attorney Gamiño's license to practice law in 2008 but the referee concluded he has obtained sufficient credits. 6 No. wife, N.B. Subsequently, N.B. filed for 2006AP2430-D bankruptcy and eventually obtained a judgment against Attorney Gamiño for some $13,000. ¶9 The OLR opposed Attorney Gamiño's reinstatement based on its concerns regarding: (1) whether Attorney Gamiño obtained the appropriate CLE-EPR credits required by the court and as a condition to reinstatement; (2) whether Attorney Gamiño had misrepresented his financial status in regard to payment of the bankruptcy estate claim; and (3) the OLR's opinion that Attorney Gamiño had not shown any remorse as to N.B. all relevant to whether Attorney These factors are Gamiño satisfied SCR 22.29(4)(e) (requiring Attorney Gamiño to establish that his conduct since the suspension or revocation has been exemplary and above reproach), SCR 22.29(4)(f) (requiring Attorney Gamiño to establish that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards), SCR 22.29(4)(g) (requiring Attorney Gamiño to establish that he can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the court), and SCR 22.29(4m) (requiring settled that all Attorney claims of Gamiño persons has made injured misconduct, including reimbursement to the restitution or harmed Wisconsin to by or his Lawyers' Fund for Client Protection for all payments made from that fund, 7 No. or, if not, Attorney Gamiño's explanation his of 2006AP2430-D failure or inability to do so). ¶10 The referee considered testimony and evidence on each of these points. First, with respect to the question of the number of CLE credits the referee acknowledged that Attorney Gamiño had not filed appropriate forms with the Board of Bar Examiners (BBE), but testimony from BBE staff indicated Attorney Gamiño had, as of the date of the evidentiary hearing, completed in excess of the number of credits he was required to take to satisfy this court's conditions set forth in its prior decision and those needed for reinstatement. ¶11 With respect to concerns regarding whether Attorney Gamiño accurately disclosed his financial situation, the referee stated that he was persuaded of the accuracy of the Gamiños' financial sheets, situation income tax based on the referee's returns, and the review credible of budget testimony of Attorney Gamiño's wife, also an attorney. ¶12 A troubling concern articulated by the OLR pertained to Attorney Gamiño's alleged attitude toward his misconduct in the N.B. matter. Unfortunately, the referee did not extensive findings relating to this issue, stating: I thought that, based upon the testimony, Carlos Gamiño is both remorseful and embarrassed. He brought up something that apparently had not been addressed before at the hearing on the 20th of September, and that was the [family he represented] were not simply clients but apparently acquaintances and probably friends of his parents going back into the 1960s. 8 make No. ¶13 A longstanding acquaintance in no 2006AP2430-D way absolves Attorney Gamiño of the need to adhere to professional standards. However, the record reflects that Attorney Gamiño did acknowledge his misconduct with respect to his handling of the N.B. matter and that he felt "immense remorse" regarding the matter. The testimony to which the referee refers reflects that Attorney Gamiño testified that his parents' acquaintance with the victim of his misconduct contributed to his embarrassment regarding the matter. The record also reflects that Attorney Gamiño has entered into a payment plan to pay the judgment due to N.B. credibility Accordingly, based determinations, on the these referee findings, including made following the conclusions of law: I conclude, as a matter of law, that [Attorney Gamiño has] met his burden of proof as found in Supreme Court Rule 22.31 as follows: 1) That he has the moral character to practice law in the State of Wisconsin; 2) That [Attorney Gamiño's] resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; 3) That his representations in the petition, including the representations required by [SCR 22.29(4)(a)-(4m)] and 22.29(5), when taken into account with the filing of the amendment today in his behalf by his attorney, are substantiated; and 4) That he has complied fully with the terms of the order of suspension or revocation as well as with the requirements of Supreme Court Rule 22.26. 9 No. ¶14 The court has carefully evaluated 2006AP2430-D whether Attorney Gamiño has indeed met the requirements for reinstatement of his license to practice law in Wisconsin. very serious misconduct vulnerable clients. and publicly misconduct he relationships committed and its impact on some Attorney Gamiño has been suspended twice reprimanded has We remain troubled by the once included with in the last five misrepresentation, female clients in years. improper vulnerable His sexual personal situations, failure to act with reasonable diligence, failure to immediately receiving refund notice unearned successor trust account violation. fees, counsel contacting had been a client retained, after and a However, the referee was persuaded that Attorney Gamiño has met the requirements for reinstatement and we defer to a referee's credibility determinations. Therefore, upon careful consideration of the entire record, we agree that Attorney Gamiño has met his burden of proof with respect to the elements necessary to justify reinstatement. ¶15 We stress that we expect the exemplary behavior which Attorney Gamiño has exhibited during the period of his suspension to continue once he resumes the practice of law, and we remind him of the concept of progressive discipline that will be applied should he fail to adhere to the standard of conduct we expect of all attorneys licensed to practice in Wisconsin. dQbQecQQQaQ¢YW VSTQQHI AFEDB 97 62 542 ¡ #0)'( ¡ #¢#" £ ¡ ¨ ©§¥¢¤¡¢ d R b P ` P X U R P 7 G @ C @ A @ 8 £ ¥ 1 ¨ 3 1 ¨ & & ¨ % ¥ ¥ $ £ ! ¨ ¨ ¦ £ See, e.g., X h P b ` X 5QQaQP gS X f ¶16 In addition, in view of his disciplinary history, lingering concerns about his attention to detail as evidenced by 10 No. difficulties education establishing requirements, compliance and in with the 2006AP2430-D continuing interests of legal ensuring protection of the public, we conclude that Attorney Gamiño's reinstatement to the practice of law should be conditioned upon his supervision by a licensed attorney for a period of two years following his reinstatement. The supervising attorney cannot be a member of Attorney Gamiño's family or the family of his wife. ¶17 IT IS ORDERED that Carlos A. Gamiño's license to practice law in Wisconsin is reinstated effective the date of this order. ¶18 IT IS FURTHER ORDERED that the reinstatement of Attorney Carlos A. Gamiño's license to practice law is subject to the following conditions: 1. For a period of two years from the date he resumes the practice of law, Attorney Gamiño shall engage in the practice of law in Wisconsin under the direct supervision of a licensed attorney who is not a family member and who is acceptable to and approved by the Office of Lawyer Regulation.5 2. the Within ten days of the date Attorney Gamiño resumes practice supervising of law, attorney Attorney with copies Gamiño of shall all of provide this his court's decisions relating to Attorney Gamiño's license to practice law, including our decision in this case. 5 This condition on Attorney Gamiño's intended to preclude him from practicing members. 11 practice is not law with family No. 3. the 2006AP2430-D Attorney Gamiño's supervising attorney shall have all duties generally held by a supervising attorney under SCR 20:5.1(b). 4. Attorney Gamiño's supervising attorney shall file quarterly reports with the Office of Lawyer Regulation. 5. If Attorney Gamiño changes his place of residence or employment at any time during the two-year period, he shall promptly notify the Office of Lawyer Regulation. 6. If Attorney Gamiño fails to comply with any of the foregoing terms and conditions, his license may be suspended. ¶19 IT IS FURTHER ORDERED that within 60 days of the date of this order, Carlos A. Gamiño 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 his inability to pay the costs within that time, the license of Carlos A. Gamiño to practice law in Wisconsin shall be suspended until further order of the court. ¶20 were IT IS FURTHER ORDERED that Exhibits 2, 3, 4, and 5 sealed financial by the information referee and because shall they remain contain confidential personal unless ordered by the court. ¶21 IT IS FURTHER ORDERED that that within 60 days of the date of this order, Carlos A. Gamiño shall contact the State Bar of Wisconsin to make arrangements regarding payment of any past due State Bar dues and assessments, if any. 12 No. 1 2006AP2430-D
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