Office of Lawyer Regulation v. Ann T. Bowe
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SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2010AP2527-D
In the Matter of Disciplinary Proceedings
Against Ann T. Bowe, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Ann T. Bowe,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST BOWE
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
June 24, 2011
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
ABRAHAMSON, C.J., dissents (opinion filed).
BRADLEY, J. and CROOKS, J., join dissent.
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2010AP2527-D
STATE OF WISCONSIN
:
IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Ann T. Bowe, Attorney at Law:
FILED
Office of Lawyer Regulation,
Complainant,
JUN 24, 2011
v.
A. John Voelker
Acting Clerk of
Supreme Court
Ann T. Bowe,
Respondent.
ATTORNEY
disciplinary
proceeding.
Attorney
publicly
reprimanded.
¶1
filed
PER
a
CURIAM.
five-count
The
Office
disciplinary
of
Lawyer
complaint
Regulation (OLR)
against
Attorney
Ann T. Bowe alleging professional misconduct arising from one
client
matter
license.
misconduct.
and
Attorney
seeking
Bowe
Christine
a
did
Harris
60-day
not
suspension
contest
Taylor
was
the
of
her
allegations
appointed
law
of
referee.
Following a hearing limited to the issue of discipline, Referee
No.
Taylor
recommended
the
imposition
of
a
public
2010AP2527-D
reprimand
and
costs.
¶2
No appeal has been filed.
The matter is submitted for
this court's review pursuant to SCR 22.17(2).1
We conclude the
record supports the referee's findings of fact and conclusions
of law.
We agree with the referee's recommendation to impose a
public reprimand.
We order Attorney Bowe to bear the costs of
this proceeding.
¶3
Attorney Bowe was admitted to the practice of law in
Wisconsin in 1980 and practices in Milwaukee.
Her disciplinary
history consists of a 1993 consensual private reprimand.2
¶4
Attorney Bowe's professional misconduct in this case
arises from a single client matter.
In 2006 Cynthia M. retained
Attorney Bowe to secure a divorce from her husband, John M.,
which subsequently formed the basis of the following counts:
COUNT I:
By failing to serve the summons and
petition for divorce on John, resulting in the failure
to obtain personal jurisdiction over him and the
subsequent vacatur of the Judgment more than a year
1
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
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
See Private Reprimand of Ann Bowe, 1993-24.
2
No.
2010AP2527-D
after it had been obtained, [Attorney] Bowe violated
SCR 20:1.3;3
COUNT II: By knowingly failing to serve the
summons and petition for divorce on John as required
by statute, and by prosecuting the case to judgment
without informing the Court of the jurisdictional
defect, [Attorney] Bowe violated SCR 20:3.4(c);4
COUNT III:
By signing and filing a certificate
of
compliance
with
statutory
requirements
that
asserted, "The summons and petition were served on the
respondent via the U.S. Postal Service on 03-13-06,"
knowing that the respondent had not been properly
served, [Attorney] Bowe violated SCR 20:8.4(c);5
COUNT IV:
By failing to serve or send John
divorce pleadings or notices she filed with the court,
[Attorney] Bowe violated SCR 20:3.5(b);6
3
All references to violations of the Wisconsin
Court Rules are as pled in the OLR's complaint.
Supreme
SCR 20:1.3 provides, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
4
SCR 20:3.4(c) provides, "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
5
SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
6
SCR 20:3.5(b) provides a lawyer shall not:
[C]ommunicate ex parte with such a person during
the proceeding unless authorized to do so by law or
court order or for scheduling purposes if permitted by
the court.
If communication between a lawyer and
judge has occurred in order to schedule the matter,
the lawyer involved shall promptly notify the lawyer
for
the
other
party
or
the
other
party,
if
unrepresented, of such communication; . . . ."
3
No.
2010AP2527-D
COUNT V:
By drafting and submitting in her
proposed Judgment that "all necessary parties have
been duly served and ordered to appear," and by
submitting that proposed Judgment to the Court for
execution when she knew the statement was false,
[Attorney] Bowe violated former SCR 20:3.3(a)(1)7.
¶5
As noted, the disciplinary complaint's allegations are
undisputed.
Attorney Bowe mailed a copy of the summons and
petition for divorce to John at the marital residence, along
with an acknowledgement of service of the summons and petition
for divorce for John to execute and return to Attorney Bowe.
John never executed the acknowledgement of service and Attorney
Bowe never received an executed acknowledgement of service from
John.
Because
she
did
not
serve
John
with
a
summons
and
petition for divorce in the divorce action, the circuit court
lacked personal jurisdiction over him.
¶6
Nonetheless, on June 22, 2006, knowing John had not
been served, Attorney Bowe signed and filed a certificate of
compliance
with
statutory
requirements
which
stated:
"The
summons and petition were served on the respondent via the U.S.
Postal Service on 03-13-06 . . . ."
Service of a summons and
petition for divorce by U.S Mail is not authorized by Wisconsin
statute or common law to secure personal jurisdiction over a
respondent in a divorce action.
¶7
court
In the same document, Attorney Bowe certified to the
under
penalty
of
perjury:
7
"All . . . parties
in
this
Former SCR 20:3.3(a)(1) (effective through June 30, 2007)
states a lawyer shall not knowingly "make a false statement of
fact or law to a tribunal; . . . ."
4
No.
action
have
been
compliance."
served
with
a
copy
of
this
2010AP2527-D
certificate
of
Attorney Bowe, however, had never served John with
or otherwise conveyed to him the certificate of compliance.
¶8
On June 22, 2006, Attorney Bowe prepared and caused to
be executed by the court an order for a pretrial conference,
which was required to be served upon John in advance of the
July 6, 2006, conference.
However, Attorney Bowe never served
John with or otherwise conveyed to him the order for a pretrial
conference.
On July 6, 2006, the pretrial conference was held.
John did not appear.
The court set a temporary orders motion
hearing for July 31, 2006, and a trial date of October 30, 2006.
¶9
As
subsequent
a
result
no-contact
of
a
order,
domestic
John
violence
moved
residence on or about July 11, 2006.
from
arrest
the
and
marital
Attorney Bowe's motion for
temporary orders provided, in part, that on July 11, 2006, John
was arrested and charged with battery and a no-contact order was
entered
forbidding contact
with
Cynthia
in
her
home.
Thus,
Attorney Bowe acknowledged in her motion that John no longer
resided in the marital residence.
¶10
Nonetheless, the affidavit of mailing filed with the
court indicated that on July 24, 2006, Attorney Bowe's assistant
mailed to John, at the address of the marital residence, the
notice
of
motion
and
motion
July 31, 2006, hearing.
the
notice
to
John
for
temporary
orders
for
the
When Attorney Bowe's assistant mailed
exclusively
to
the
marital
residence,
Attorney Bowe knew that John no longer resided there and that
address was no longer valid for him.
5
No.
¶11
Also, Attorney Bowe never conveyed to John notice of
the October 30, 2006, trial date.
not
2010AP2527-D
properly
served
with
the
Attorney Bowe knew John was
summons
and
petition
and
circuit court lacked personal jurisdiction over him.
not appear at trial.
the
John did
On October 30, 2006, in John's absence,
the circuit court judge granted a default divorce incorporating
the terms of Cynthia's proposed marital settlement agreement.
Attorney Bowe failed to notify the court before it granted the
default divorce that John had not been served with the summons
and petition and the court lacked personal jurisdiction over
him.
¶12
Attorney
Bowe
prepared
the
findings
conclusions of law and judgment of divorce.
"all necessary
appear."
parties
have
The judgment
residence
and
settlement,
awarding
been
listed
as
incorporated
her
the
duly
and
address
Cynthia's
marital
fact,
The judgment stated
served
John's
of
ordered
the
proposed
residence
and
to
marital
marital
requiring
John to pay $3,000 per month in child support.
¶13
the
On November 15, 2006, Attorney Bowe conveyed a copy of
proposed
judgment
to
John's
criminal
defense
attorney.
Under cover letter of November 21, 2006, Attorney Bowe conveyed
the proposed judgment to the judge for signature and entry, and
the judge signed it December 5, 2006.
On December 12, 2006, the
clerk of court entered the judgment and mailed copies to the
parties.
¶14
judgment.
John subsequently filed a motion to reopen the divorce
Following a March 12, 2008, evidentiary hearing on
6
No.
that
motion,
the
circuit
court
found
no
2010AP2527-D
evidence
of
proper
service on John, vacated the judgment, and dismissed the divorce
action.
Represented by new counsel, Cynthia initiated a second
divorce action on March 20, 2008.
Following the conclusion of
the first day of a contested trial on January 22, 2009, the
parties were granted a divorce.
At a stipulated divorce hearing
on March 10, 2009, the court approved the remaining terms of the
divorce.
¶15
At the disciplinary hearing, Cynthia testified it was
only after she
received
John's
motion
to
reopen
the
divorce
judgment that she learned for the first time John had not been
served.
She
responsibility
stated
for
the
Attorney
improper
Bowe
did
service.
not
Cynthia
take
said
any
she
needed to pay new court costs and hire a new attorney to review
her case and represent her.
divorce
judgment
had
been
Cynthia testified that because her
vacated,
her
three
children
were
fearful her husband, who had been in and out of jail, would be
allowed
back
in
the
house,
coaster
ride
emotionally
and
causing
[she]
her
was
to
all
be
on
[her]
"a
roller
three
kids
had."
¶16
paid
Cynthia stated she was unsure how much in fees she had
Attorney
financial
Bowe,
and
restitution.
Attorney
Cynthia
Bowe
said
had
not
because
provided
she
was
any
just
recovering from cancer, she did not keep track of what she paid;
however, she estimated she had paid Attorney Bowe approximately
$2,000 to $3,000.
She believed Attorney Bowe was responsible
for the $20,000 expended
on
her
7
new
attorneys,
because
they
No.
2010AP2527-D
spent a lot of time reviewing her case that otherwise would have
been unnecessary.
¶17
inquired,
On
cross-examination,
"What
makes
you
Attorney
think . . . that
Bowe's
if
Ann
attorney
Bowe
had
properly served your husband, anything that has happened in your
second divorce would not have happened in the first?"
Cynthia
answered, "I don't think anybody knows that outcome."
¶18
Attorney
Bowe testified
at
the
disciplinary
hearing
Cynthia had paid a $1,000 retainer plus $250 in costs.
Attorney
Bowe
for
acknowledged
she
was
completely
responsible
misconduct and that she had "just screwed up."
her
Attorney Bowe
said she gave in to the pressure of getting the case over, and
that she knows she should "not cut corners."
Attorney Bowe
testified she was willing to pay Cynthia's attorney fees for her
new representation.
¶19
The OLR argued in favor of a 60-day license suspension
due to the repetitive nature of Attorney Bowe's misconduct.
The
OLR claimed Attorney Bowe's many years of experience practicing
law should be considered as an aggravating factor in assessing
discipline.
The OLR stated, however, as mitigating factors, no
selfish motive of financial gain was shown, and there was no
evidence of any motive other than to try and cut corners.
Also,
it pointed out, Attorney Bowe had been cooperative with the OLR
and had shown remorse and accepted responsibility.
¶20
Nonetheless,
the
OLR
asserted
that
consistent
with
Section 6.12 of the ABA Standards, a suspension is warranted
when an attorney knows false statements are submitted to the
8
No.
court but takes no remedial
action
and
2010AP2527-D
a
potentially
causes
adverse impact in a legal proceeding.
¶21
With respect to restitution, the OLR stated:
OLR is not requesting restitution during
course of this proceeding.
If there's going to
restitution, it's going to be handled between
parties or through litigation or what have you,
OLR is not requesting restitution.
¶22
the
be
the
but
Balancing the several factors, the referee concluded a
public reprimand was sufficient discipline.
The referee noted
Attorney Bowe was privately reprimanded in 1993, but due to the
lapse
of
time,
that
disciplinary
history
was
not
a
factor.
Also, the referee stated restitution was not an issue in these
proceedings because if there would be restitution, it would be
handled in another forum.
¶23
The
referee
found,
as
aggravating
factors,
that
Attorney Bowe engaged in a pattern of misconduct arising out of
one client matter and the number of violations was significant.
However, the referee also found Attorney Bowe has a reputation
for being a conscientious and competent attorney, who is well
prepared and respected by other attorneys, court commissioners,
and
judges.
The
referee
also
found
Attorney
Bowe
is
an
experienced lawyer, having been in practice for 26 years when
the violations in this matter arose.
¶24
absence
As mitigating factors, the referee found "a complete
of
dishonest
or
selfish
motive"
and
no
evidence
indicating any financial gain, or that Attorney Bowe misled the
court for other ulterior motives.
9
The referee found, "Bowe's
No.
2010AP2527-D
testimony was contrite, humble and apologetic when she stated
that ' . . . I succumbed to the pressure of somebody who really,
really wanted to get this done instead of doing what I should
have done, which is not cut corners.'"
¶25
Also, the referee determined Attorney Bowe had been
cooperative
with
proceedings.
OLR
The
in
its
referee
investigation
found
Attorney
and
during
Bowe
these
immediately
accepted responsibility for her actions, expressed remorse, and
recognized the impact on her client.
¶26
unless
The court will affirm the referee's findings of fact
they
are
clearly
erroneous.
In
re
Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747.
de
novo.
The referee's conclusions of law are reviewed
Id.
Although
this
court
takes
into
account
the
referee's recommendation, it does not accord it great weight
because
ultimately
determine
it
appropriate
is
this
court's
discipline.
See
responsibility
In
re
to
Disciplinary
Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694
N.W.2d 894.
In its de novo review, the court considers the
seriousness of the misconduct along with the need to protect the
public, courts, and legal system from repetition of misconduct,
and
to
impress
upon
the
attorney
the
seriousness
of
the
misconduct and deter other attorneys from engaging in similar
misconduct.
In re Disciplinary Proceedings Against Alia, 2006
WI 12, ¶88, 288 Wis. 2d 299, 709 N.W.2d 399.
¶27
Upon
our
independent
review,
we
are
satisfied
the
referee's findings of fact are not clearly erroneous and the
10
No.
record supports her conclusions.
We agree with the referee's
reasoning
and
conclude
a
public
discipline
to
achieve
the
goals
Although
we
are
persuaded
a
2010AP2527-D
reprimand
of
is
attorney
suspension
is
not
sufficient
discipline.
necessary
to
protect the public and the judicial system in this instance,
Attorney Bowe is admonished that a public reprimand should not
be interpreted as indicating this court is untroubled by her
misconduct.
¶28
As noted in other cases involving misrepresentations
to a court, an attorney's duty of candor toward the tribunal is
central
to
the
court's
function.
See
In
re
Disciplinary
Proceedings Against Kohler, 2009 WI 24, ¶38, 316 Wis. 2d 17, 31,
762 N.W.2d 377; see also In re Disciplinary Proceedings Against
Kalal,
2002
WI
45,
¶1,
252
Wis. 2d 261,
643
N.W.2d 466.
Attorney Bowe's repeated misrepresentations to the court are a
serious breach of her obligations as an officer of the court.
¶29
Courts are entitled to expect strict compliance with
an attorney's fundamental duty to adhere to the truth.
Cutting
corners in this instance was not only a disservice to her client
but damaged the legal profession as well.
Bowe
should
misconduct.
be
publicly
reprimanded
We determine Attorney
for
her
professional
We conclude she should be required to pay the full
costs of this disciplinary proceeding, which were $2,728.53 as
of
March
22,
2011.
No
restitution
was
sought
and
none
is
ordered in this proceeding.
¶30
IT IS ORDERED that Ann T. Bowe is publicly reprimanded
for her professional misconduct.
11
No.
¶31
of
this
2010AP2527-D
IT IS FURTHER ORDERED that within 60 days of the date
order,
Ann
T.
Bowe
pay
to
the
Regulation the costs of this proceeding.
Office
of
Lawyer
If the costs are not
paid within the time specified and absent a showing to this
court of her inability to pay the costs within that time, the
license of Ann T. Bowe to practice law in Wisconsin shall be
suspended until further order of the court.
12
No.
¶32
to
SCR
SHIRLEY S. ABRAHAMSON, C.J.
22.17(2),
I
would
discipline and restitution.
¶33
I
am
authorized
order
2010AP2527-D.ssa
(Dissenting).
briefs
on
the
Pursuant
issues
of
I therefore respectfully dissent.
to
state
that
Justices
BRADLEY and N. PATRICK CROOKS join this dissent.
1
ANN
WALSH
No.
1
2010AP2527-D.ssa
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