Office of Lawyer Regulation v. David G. Stokes

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2012 WI 105 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2011AP2537-D In the Matter of Disciplinary Proceedings Against David G. Stokes, Attorney at Law: Office of Lawyer Regulation, Complainant, v. David G. Stokes, Respondent. DISCIPLINARY PROCEEDINGS AGAINST STOKES OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: August 17, 2012 2012 WI 105 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2011AP2537-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against David G. Stokes, Attorney at Law: Office of Lawyer Regulation, FILED Complainant, AUG 17, 2012 v. Diane M. Fremgen Clerk of Supreme Court David G. Stokes, Respondent. ATTORNEY disciplinary proceeding. Attorney's license revoked. ¶1 PER CURIAM. Pending before the court is a report and recommendation filed on March 6, 2012, by Referee Lisa Goldman. The report recommends this court revoke the license of Attorney David G. Stokes to practice law in Wisconsin. stipulated that revocation is appropriate. The parties have We agree that revocation is appropriate and direct Attorney Stokes to pay the costs of this proceeding which total $1,562.12 as of March 26, 2012. No. ¶2 Attorney Stokes was licensed Wisconsin on October 17, 1978. to 2011AP2537-D practice law in In May 1982 Attorney Stokes was privately reprimanded for improperly discussing a client's legal matter in the context of another client matter. In 1995 he was publicly reprimanded competent diligent representation for failing of a to provide client and for failing communicate with a client in a criminal appeal matter. Disciplinary Proceedings N.W.2d 507 (1995). Against Stokes, 190 and to In re Wis. 2d 480, 526 Attorney Stokes' license to practice law in Wisconsin was summarily suspended pursuant to SCR 22.20(1) by this court on September 27, 2011, due to Attorney criminal conviction as more fully described below. Stokes' His license is currently suspended. ¶3 On October 6, 2010, Attorney Stokes was charged in Dane County circuit court with the commission of two felonies. State v. Stokes, Dane County Circuit Court Case No. 2010CF1663. He was charged § 943.20(1)(d) with and felony (3)(c), theft, for contrary billing the to Wis. Stat. Wisconsin State Public Defender's Office (SPD) for 691 hours of work which he did not perform, consisting of 628 fraudulent billing entries in more than 40 client matters over a nearly four-year period, and for which he received more than $19,600. He was also charged with § 946.31(1)(c), perjury, contrary to Wis. Stat. for allegedly giving false testimony under oath before the judge in the John Doe proceeding investigating billings. 2 Attorney Stokes' SPD No. ¶4 in the 2011AP2537-D On May 16, 2011, upon stipulation to the facts alleged criminal felony theft. motion. complaint, Attorney Stokes was convicted of The perjury charge was dismissed on the State's Prior to his sentencing hearing, Attorney Stokes repaid the SPD $19,630.01. probation with Attorney Stokes was sentenced to two years' several conditions including six months incarceration, fines and costs in the amount of $6,423, and a prohibition on Attorney Stokes from working for the SPD or as a contract attorney for any government or non-profit organization. ¶5 for Attorney Stokes' criminal conviction formed the basis this court's order summarily suspending Attorney Stokes' license to practice law effective September 27, 2011, as well as an ensuing lawyer disciplinary complaint filed on November 2, 2011, alleging one count of violating SCR 20:8.4(b).1 The Office of Lawyer Regulation (OLR) sought revocation of Attorney Stokes' law license. about December 1, Attorney Stokes filed an answer on or 2011, admitting all allegations, with clarification as to one paragraph. ¶6 Stokes Meanwhile, in addition to the OLR complaint, Attorney was also under additional grievances. investigation by the OLR for five On or about December 21, 2011, Attorney Stokes filed a petition for revocation by consent, together with an appendix detailing the alleged 1 misconduct, in which he SCR 20:8.4(b) states it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . . ." 3 No. admitted he could not successfully defend 2011AP2537-D against allegations of misconduct reflected by the grievances. the The OLR filed a response in support of the petition for revocation by consent on the same day. ¶7 Two of the pending grievances were filed by Brian Locke and relate to Mr. Locke's claims of fraudulent billing, allegations that Attorney Stokes committed perjury and falsified evidence during the John Doe proceeding, and allegations that Attorney Stokes refused to answer discovery requests and lied to the court in Mr. Locke's malpractice action against Attorney Stokes. ¶8 The third grievance was filed by Attorney Deborah Smith, director of the assigned counsel division of the SPD, relating to fraudulent billing and echoing the claims stated in the Locke grievance. ¶9 The fourth grievance was filed by the U.S. Trustee, who provided numerous examples of Attorney Stokes' incompetence as an attorney practicing before the Western District of Wisconsin Bankruptcy Court. ¶10 client, The fifth and final grievance was filed by a former S.M., who contended that Attorney Stokes failed to properly represent her in a foreclosure action and improperly deposited her advanced fees in his business account. ¶11 appointed. On December She 5, identified 2011, that Referee neither Lisa party Goldman had was discussed restitution and, on January 23, 2012, sent a letter asking the 4 No. parties to state their position on restitution. 2011AP2537-D On January 26, 2012, the OLR responded that it did not seek restitution. ¶12 The referee filed her report on March 6, 2012. respect to the OLR complaint, the referee found With that by fraudulently billing the SPD for work he did not perform and by accepting more resulting in than a $19,600 felony § 943.20(1)(d) and from theft the SPD (3)(c), that work, under conviction for Wis. Stat. Attorney Stokes violated SCR 20:8.4(b). ¶13 In his petition for consensual license revocation, Attorney Stokes has conceded that he could not defend against the five grievances that were under investigation at the time he filed his petition. The parties have stipulated that revocation is appropriate. ¶14 The referee recommended that the court leave the issue of restitution open with regard to Attorney Stokes' clients in the bankruptcy matters in the Western District of Wisconsin. U.S. District Court for the On March 26, 2012, after the referee filed her report, the OLR filed a document addressing the issue of restitution. the recommendation The OLR asked the court not to adopt regarding restitution to the bankruptcy clients, explaining that the bankruptcy court has examined the circumstances, ordered refunds in several cases, and has verified that Attorney Stokes complied with those orders for refunds. ¶15 Stokes However, the OLR now requests the court order Attorney to make $200 restitution 5 to S.M., explaining that No. subsequent investigation revealed it seek restitution in this amount. would be 2011AP2537-D appropriate to The OLR explains that this request was not made before the referee filed her report because the petition for consensual license revocation was filed before the grievances were submitted to the Preliminary Committee for a determination of cause to proceed. Review However, because this request was made subsequent to the filing of the referee's report, the report does not contain any factual findings concerning restitution to S.M. ¶16 When reviewing a report and recommendation in an attorney disciplinary proceeding, we affirm a referee's findings of fact unless they are found to be clearly erroneous. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We review the referee's conclusions of law, however, on a de novo basis. Id. We determine the appropriate level of discipline given the particular facts of each case, independent benefiting from it. of the referee's recommendation, but See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶17 Upon consideration of the entire record, we accept the referee's findings of fact and agree that the facts support the legal conclusion that Attorney Stokes engaged in the professional misconduct alleged in the OLR's complaint filed on November 2, recommendation 2011. that We we also accept agree Attorney consensual license revocation. 6 with Stokes' the referee's petition for No. ¶18 severest 2011AP2537-D Attorney Stokes' professional misconduct warrants the level of discipline that we impose, namely, the revocation of his license to practice law in Wisconsin. We concur with the referee, who noted: This referee is troubled by Stokes' willingness to lie, forge signatures, and fraudulently bill the SPD in furtherance of his own personal goals. He lied to a sitting court in the midst of a John Doe investigation. He lied to the SPD in order to line his pockets with extra, unearned[] cash. He forged client signatures on documents he later filed with the Western District of Wisconsin Bankruptcy Court. Equally disturbing are the allegations that his filings were filled with mistakes, and that the court personnel could not decipher the filings, or process his client's cases appropriately. . . . To consider anything less than a revocation of his license to practice law would unduly depreciate the seriousness of his misconduct and fail to deter others from engaging in similar conduct. ¶19 With respect to the remaining questions regarding restitution, we decline to hold the matter of restitution open with respect to the bankruptcy cases, and we decline to grant the OLR's belated request to order Attorney Stokes to pay $200 in restitution to S.M. Finally, we further determine that Attorney Stokes should be required to pay the full costs of this proceeding. ¶20 SCR 22.24(1m). IT IS ORDERED that the license of David G. Stokes to practice law in Wisconsin is revoked, effective the date of this order. 7 No. ¶21 2011AP2537-D IT IS FURTHER ORDERED that within 180 days of the date of this order, David G. Stokes shall pay to the Office of Lawyer Regulation the costs of this proceeding. ¶22 already IT IS FURTHER ORDERED that to the extent he has not done so, David G. Stokes shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked. 8 No. 1 2011AP2537-D