Office of Lawyer Regulation v. Jeffrey A. Reitz
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2013 WI 27 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP1576-D & 2011AP1764-D In the Matter of Disciplinary Proceedings Against Jeffrey A. Reitz, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Jeffrey A. Reitz, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST REITZ OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 29, 2013 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant, there was a brief filed by Jeffrey A. Reitz, pro se. For the Office of Lawyer Regulation, there was filed by Julie M. Spoke, Office of Lawyer Regulation. a brief 2013 WI 27 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 2010AP1576-D & 2011AP1764-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Jeffrey A. Reitz, Attorney at Law: Office of Lawyer Regulation, FILED Complainant-Respondent, MAR 29, 2013 v. Diane M. Fremgen Clerk of Supreme Court Jeffrey A. Reitz, Respondent-Appellant. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER CURIAM. Attorney Jeffrey A. Reitz appealed from a referee's report concluding that he engaged in professional misconduct and recommending that his license to practice law in Wisconsin be suspended for 12 months. This case was originally on the December 4, 2012 oral argument calendar. It was removed from the calendar after it was discovered that Attorney Reitz and the Office of Lawyer Regulation (OLR) were in agreement that the referee erroneously included factual findings in her report Nos. 2010AP1576-D & 2011AP1764-D that arose out of counts of misconduct that had been previously dismissed by the OLR. The parties were directed to file a stipulation identifying the specific findings of fact in the referee's report that related to dismissed counts and thus should not be considered by this court in reaching its final decision. The parties filed their stipulation on December 10, 2012, and identified 47 paragraphs in the referee's report that they believe considered. were erroneously included and should not be The parties also pointed out that paragraph two of the referee's report should be corrected to reflect the fact that Attorney Reitz was admitted to practice law in 1981 rather than 2001. ¶2 We agree with the parties that the 47 paragraphs from the referee's report identified in their stipulation related to counts that were dismissed by the OLR and thus should not be considered by the court in rendering its decision. We conclude that the referee's remaining findings of fact are supported by satisfactory and convincing evidence. the appropriate sanction to We further determine that impose for Attorney Reitz's misconduct is a ten-month suspension of his license to practice law in Wisconsin. In addition, we conclude that the full costs of the proceeding, which are $6,943.09 as of December 13, 2012, should be assessed against Attorney Reitz. We further conclude that, as part of the sanction for his misconduct, Attorney Reitz should be required to distribute all funds in his trust accounts to their rightful owners or, if those individuals cannot be located, Attorney Reitz should be required to transmit those 2 Nos. funds to the state treasurer's 2010AP1576-D & 2011AP1764-D office as unclaimed or unidentifiable property. ¶3 Attorney Wisconsin in 1981 Reitz and was admitted practices in to practice Milwaukee. disciplined on two prior occasions. He law has in been In 2005, his license was suspended for five months for multiple counts of failure to act with reasonable diligence and promptness in representing a client; having a client who was not represented by counsel sign a release of Attorney Reitz's partner, prospectively limiting the partner's liability for malpractice; knowingly assisting another attorney in violating the rules of professional conduct; two counts of failure to keep a client reasonably informed about the status of a matter and failure to comply with reasonable requests for dishonesty, information; deceit, fraud, engaging or in conduct misrepresentation; involving failure to explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation; and failure to take steps reasonably practicable to protect a client's interests upon termination of representation. Disciplinary Proceedings Against Reitz, 2005 WI In re 39, 279 Wis. 2d 550, 694 N.W.2d 894. ¶4 In 2009, Attorney Reitz's license was suspended for 90 days based on a finding that he had engaged in 15 counts of misconduct with regard to 15 separate clients. All of the counts involved Attorney Reitz's failure to give a chiropractor written notice that settlement proceeds had been received in several cases and by failing 3 to promptly deliver to the Nos. 2010AP1576-D & 2011AP1764-D chiropractor the amount he was entitled to receive in accordance with documents signed by both the clients and Attorney Reitz's law firm entitling the chiropractor to payment out of settlement proceeds. In re Disciplinary Proceedings Against Reitz, 2009 WI 90, 320 Wis. 2d 460, 769 N.W.2d 566. ¶5 On June 28, 2010, the OLR filed a complaint against Attorney Reitz alleging multiple counts of misconduct. amended complaint was filed on September 1, 2010. complaint alleged 30 counts of misconduct. An The amended A separate complaint alleging five counts of misconduct was filed on August 2, 2011. The two cases were consolidated and Kim M. Peterson was appointed referee. ¶6 On March 30, 2012, the parties filed a stipulation whereby Attorney alleged in the Reitz August pled 2, no 2011 contest to complaint. all He five also counts pled no contest to 17 counts alleged in the September 1, 2010 amended complaint. The OLR agreed to dismiss the remaining 13 counts in the amended complaint. that the The stipulation provided, "Reitz agrees referee may [c]omplaint . . . and the adequate factual basis use the [a]mended in the record allegations of the [c]omplaint . . . as an for of a determination misconduct as to each misconduct count to which Reitz has pled no contest." ¶7 and The stipulation also provided that the OLR director Attorney Reitz agreed that the appropriate level of discipline to impose for Attorney Reitz's misconduct in the two cases was a ten-month suspension of his license to practice law 4 Nos. in Wisconsin. 2010AP1576-D & 2011AP1764-D The OLR director and Attorney Reitz also agreed that an appropriate condition of discipline was that Attorney Reitz be required, prior to petitioning for reinstatement, to provide the OLR with documentation that all funds in his trust account have been distributed to the rightful owners or, if those individuals cannot be located, that the funds be escheated to the state treasurer's office as unclaimed or unidentifiable property. The parties jointly requested the referee to file a report finding facts based on Attorney Reitz's no contest pleas, and the parties requested the referee to recommend that Attorney Reitz's license be suspended for ten months. ¶8 All five counts of misconduct alleged in the August 2011 complaint arose out of Attorney Reitz's representation of J.B. and/or P.B. In July 2007 J.B. and P.B. hired Attorney Reitz to represent J.B. in a personal injury case arising out of a motorcycle accident that occurred in Illinois. In July 2009 this court ordered Attorney Reitz's license suspended for 90 days effective September 14, 2009. By letter dated August 4, 2009, the OLR reminded Attorney Reitz of his obligations under SCR 22.26 stemming from his suspension, requiring him to notify all clients in pending matters both of the suspension and of his inability to act as their attorney after September 14, 2009. Attorney Reitz did not notify either J.B. or P.B. that his wrote to J.B. license was suspended. ¶9 On August 28, 2009, Attorney Reitz asking his consent to have Attorney James E. Parrot "assist us" with the case. The letter did not mention Attorney Reitz's 5 Nos. upcoming suspension. "Client Consent to 2010AP1576-D & 2011AP1764-D Attorney Reitz drafted a document titled Employment of Another signed by J.B. on August 31, 2009. Lawyer," which was The agreement referred to the Reitz law firm's role as "co-counsel" with Attorney Parrot and said Reitz's performance of firm legal "will retain services" and responsibility "will share for evenly the with [A]ttorney James E. Parrot in the attorney's contingency fee." On September 15, 2009, a day after Attorney Reitz's license suspension began, Attorney Reitz sent J.B.'s file to Attorney Parrot. ¶10 On October 9, 2009, the OLR received an affidavit from Attorney Reitz in which he said he had notified, by certified mail, all of his clients in pending matters. clients did not include either J.B. or P.B. The list of On December 15, 2009, the OLR received a second affidavit from Attorney Reitz in connection with his reinstatement request. In that affidavit Attorney the Reitz SCR 22.26 said following he had the complied suspension with of his provisions license. of He acknowledged that notice had inadvertently not been sent to J.B. ¶11 medical In early 2008, P.B. spoke to Attorney Reitz about a malpractice claim arising from possible damage she suffered on January 22, 2002. radial nerve On January 22, 2003, P.B. filed an action against a hospital in Illinois. She was originally represented in that case by Attorney Michael Lavelle of Chicago. ¶12 handle Attorney Reitz made a verbal agreement with P.B. to her case. There was no 6 written fee agreement. On Nos. March 29, 2008, Attorney Reitz's 2010AP1576-D & 2011AP1764-D employee wrote to Attorney Lavelle to formally ask to assume representation of P.B. The file was subsequently picked up from Attorney Lavelle's office. ¶13 From time to time Attorney Reitz would refer medical malpractice cases to Attorney Bill Walker. Attorney Walker met with Attorney Reitz's employee to discuss P.B.'s case. ¶14 P.B.'s case was voluntarily dismissed in April 2008 due to the ill health of Attorney Lavelle. Under Illinois law, there was a one-year deadline to reopen the case. A May 9, 2008 letter from Attorney Reitz's office to Attorney Lavelle stated that P.B.'s Walker. malpractice suit would be handled by Attorney That same day Attorney Reitz's office sent a letter to P.B. advising her the malpractice suit was being reviewed by Attorney Walker. ¶15 declined Attorney Walker did review the malpractice suit but to represent P.B. In mid-May 2008 Attorney Walker advised Attorney Reitz of his opinion that there were a number of substantial obstacles evidence of negligence. to the case, including insufficient Attorney Walker returned the case file to Attorney Reitz on May 22, 2008. Attorney Walker's office informed P.B. that the file had been returned to Attorney Reitz. ¶16 Attorney Reitz did not personally share with P.B. the negative evaluation of the medical malpractice claim by Attorney Walker. P.B. made repeated, frequent calls to Attorney Reitz's office asking about her malpractice suit. to return the calls. Attorney Reitz failed Each time P.B. would call Attorney Reitz's office, she was informed by a paralegal that Attorney Reitz was 7 Nos. 2010AP1576-D & 2011AP1764-D aware of the April 8, 2009 deadline to reopen the case and that he was handling the matter. Attorney Reitz allowed the April 8, 2009 deadline to pass without taking any action. ¶17 The OLR's August 2011 complaint alleged the following counts of misconduct with respect to Attorney Reitz's handling of J.B. and P.B.'s cases: [COUNT ONE:] By failing to timely notify [J.B.], a client in a pending matter, of the suspension of his law license, Reitz violated SCR 22.26(1)(a) and (b)1 and SCR 20:8.4(f).2 [COUNT TWO:] By filing an affidavit with [the] OLR containing misrepresentations concerning his compliance with the terms and conditions of the suspension, Reitz violated SCR 20:8.4(c).3 1 SCR 22.26(1)(a) and (b) states as follows: (1) On or before the effective date of license suspension or revocation, an attorney whose license is suspended or revoked shall do all of the following: (a) Notify by certified mail all clients being represented in pending matters of the suspension or revocation and of the attorney's consequent inability to act as an attorney following the effective date of the suspension or revocation. (b) Advise the clients to seek legal advice of their choice elsewhere. 2 SCR 20:8.4(f) provides that it is professional misconduct for a lawyer to "violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers; . . . ." 3 SCR 20:8.4(c) says it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . . ." 8 Nos. 2010AP1576-D & 2011AP1764-D [COUNT THREE:] By repeatedly failing to return client [P.B.'s] telephone calls and failing to provide requested information to her concerning the status of his efforts to reopen her medical malpractice claim or find an attorney to represent her in the matter, Reitz violated SCR 20:1.4(a)(3) and (4).4 [COUNT FOUR:] By failing to explain to client [P.B.] the ramifications of another attorney's negative assessment of the client's medical malpractice claim and failing to share that malpractice specialist's written evaluation of the claim with the client, Reitz violated SCR 20:1.4(b).5 [COUNT FIVE:] By failing to timely notify his client that he was unilaterally abandoning his efforts to reopen her medical malpractice claim or to find another attorney to handle her claim and failing to return her medical malpractice claim file to her, Reitz violated SCR 20:1.16(d).6 4 SCR 20:1.4(a)(3) and (4) states a lawyer shall "(3) keep the client reasonably informed about the status of a matter; [and] (4) promptly comply with reasonable requests by the client for information; . . . ." 5 SCR 20:1.4(b) provides: A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 6 SCR 20:1.16(d) provides: 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 Nos. ¶18 2010AP1576-D & 2011AP1764-D By virtue of the March 30, 2012 stipulation, Attorney Reitz pled no contest to all five counts. ¶19 Eight of the counts of misconduct in the September 1, 2010 amended complaint, to which Attorney Reitz pled no contest, involved untimely delivery of client trust account funds. In 1999, Attorney Reitz joined Michael Mandelman's law firm. The firm practiced primarily and criminal law. Prior to his association with Attorney Reitz, in the area of personal injury Mandelman had client trust accounts at M&I and TCF banks. When Attorney used Reitz Mandelman's M&I joined trust the firm account in as 1999, the its active firm trust account. Mandelman did not close the TCF trust account until December 2006. In December 2002 Mandelman and Attorney Reitz stopped using the M&I trust account and opened a new trust account at Tri City Bank. The M&I account remained dormant for at least six years. ¶20 In May of 2005, while Attorney Reitz's license was suspended, Mandelman stopped using the Tri City Bank account and opened a new trust account at Pyramax Bank. trust The Tri City account then remained dormant for more than three years. Mandelman's license to practice months effective June 21, 2006. law was suspended for nine Prior to that time a new trust account was opened at Pyramax Bank in the name of Reitz, Parker and Lawent, S.C. (RPL). of undistributed client In July and August of 2008, a majority funds in Mandelman's account were transferred to the RPL trust account. 10 Pyramax trust Nos. ¶21 2010AP1576-D & 2011AP1764-D The OLR's September 1, 2010 amended complaint alleged that Attorney Reitz failed to distribute trust account checks to clients for periods ranging from one to more than seven years; deposited monthly settlement payments in his client trust account but failed to distribute the funds; failed to negotiate with subrogated carriers; failed to take steps necessary to resolve the division of ownership of trust account funds; failed to pay a client money withheld from a 2002 personal injury settlement until at least October 2008; and failed to distribute or reissue 47 uncashed checks written on his client trust account between 2000 and 2005; and, as of July 30, 2008, having an additional 14 checks outstanding for periods of at least three months and up to two years after Mandelman's suspension. ¶22 The OLR alleged, and by virtue of his March 30, 2012 stipulation Attorney Reitz agreed, that 20:1.15(b) (in effect prior to 1, July he violated SCRs 2004),7 20:1.15(d)(1) (effective July 1, 2004),8 and 20:1.3.9 7 SCR 20:1.15(b) (in effect prior to July 1, 2004) stated as follows: Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property. 8 SCR 20:1.15(d)(1) provides: 11 Nos. ¶23 By virtue of his 2010AP1576-D & 2011AP1764-D stipulation, Attorney Reitz also admitted disbursing funds from his trust account that created negative balances with respect to the subsidiary accounts for two clients and with respect to a law firm subsidiary account for bank charges. He also admitted distributing funds such that there was a $9,000 shortage in funds that should have been held for clients Attorney in Reitz the RPL trust admitted account violating as of SCRs July 31, 2008. 20:1.15(e)(5)a. (effective July 1, 2004),10 20:1.15(f)(1)b. (effective July 1, 2004 through December 31, 2009),11 and SCR 20:1.15(a) (effective prior to July 1, 2004).12 Notice and disbursement. Upon receiving funds or other property in which a client has an interest, or in which the lawyer has received notice that a 3rd party has an interest identified by a lien, court order, judgment, or contract, the lawyer shall promptly notify the client or 3rd party in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, the lawyer shall promptly deliver to the client or 3rd party any funds or other property that the client or 3rd party is entitled to receive. 9 SCR 20:1.3 states "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 10 SCR 20:1.15(e)(5)a. provides: Standard for trust account transactions. A lawyer shall not disburse funds from any trust account unless the deposit from which those funds will be disbursed has cleared, and the funds are available for disbursement. 11 SCR 20:1.15(f)(1)b. provides: A subsidiary ledger shall be maintained for each client or matter for which the lawyer receives trust 12 Nos. 2010AP1576-D & 2011AP1764-D funds, and the lawyer shall record each receipt and disbursement of that client's funds and the balance following each transaction. A lawyer shall not disburse funds from the trust account that would create a negative balance with respect to any individual client or matter. 12 SCR 20:1.15(a) (effective prior to July 1, 2004) provided as follows: Safekeeping property. A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state. 13 Nos. ¶24 Attorney Reitz also 2010AP1576-D & 2011AP1764-D admitted, by virtue of his stipulation, that by failing to create and retain complete trust account records for SCR 20:1.15(e)(6).13 provide RPL trust the He RPL further account trust account, admitted records that requested he by by violated failing the OLR to and providing only incomplete and inaccurate records, he violated SCR 20:1.15(e)(7),14 13 20:8.4(h),15 and 22.03(6).16 He also SCR 20:1.15(e)(6) provides: Record retention. A lawyer shall maintain complete records of trust account funds and other trust property and shall preserve those records for at least 6 years after the date of termination of the representation. 14 SCR 20:1.15(e)(7) provides: Production of records. All trust account records have public aspects related to a lawyer's fitness to practice. Upon request of the office of lawyer regulation, or upon direction of the supreme court, the records shall be submitted to the office of lawyer regulation for its inspection, audit, use, and evidence under any conditions to protect the privilege of clients that the court may provide. The records, or an audit of the records, shall be produced at any disciplinary proceeding involving the lawyer, whenever material. Failure to produce the records constitutes unprofessional conduct and grounds for disciplinary action. 15 SCR 20:8.4(h) states it is professional misconduct for a lawyer to "fail to cooperate in the investigation of a grievance filed with the office of lawyer regulation as required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR 22.04(1); . . . ." 16 SCR 22.03(6) provides: In the respondent's course of the investigation, the wilful failure to provide relevant 14 Nos. admitted that by State Bar overdraft of falsely certifying Wisconsin reporting dues agreements 2010AP1576-D & 2011AP1764-D on his statement with the fiscal that OLR, he year had and by 2007 filed falsely certifying on his fiscal year 2008 State Bar of Wisconsin dues statement that he had complied with the trust account recordkeeping requirements for the listed accounts, he violated SCR 20:1.15(i)(4).17 ¶25 Attorney Reitz further admitted that by depositing earned legal fees for clients into his client trust account and distributing those fees through the trust account instead of through the SCR 20:1.15(a) law firm's (effective business prior to account, July SCR 20:1.15(b)(3) (effective July 1, 2004).18 1, he violated 2004), and He also admitted that by depositing checks to his client trust account that were information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance. 17 SCR 20:1.15(i)(4) provides: Suspension for non-compliance. The failure of a state bar member to file the certificate is grounds for automatic suspension of the member's membership in the state bar in the same manner provided in SCR 10.03(6) for nonpayment of dues. The filing of a false certificate is unprofessional conduct and is grounds for disciplinary action. 18 SCR 20:1.15(b)(3) provides: Lawyer funds. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay monthly account service charges, may be deposited or retained in a trust account. 15 Nos. 2010AP1576-D & 2011AP1764-D payable to Attorney Mandelman, written on checks from an account from a California law firm that were allegedly in payment of law firm fees, he violated SCR 20:1.15(a) (effective prior to July 1, 2004), and SCR 20:1.15(b)(3) (effective July 1, 2004). ¶26 Attorney Reitz further admitted that by failing to file tax returns and pay tax on income earned by the RPL law firm he violated the standard of professional conduct established in cases, including In re Disciplinary Proceedings Against Owens, 172 Wis. 2d 54, 56, 492 N.W.2d 157 (1992), contrary to SCRs 20:8.4(f) and 20:8.4(c). ¶27 In addition, Attorney Reitz admitted that by failing to file an action on behalf of a client prior to the expiration of the statute of limitations, he violated SCR 20:1.3. The client subsequently obtained a money judgment against Attorney Reitz for $101,190.17. He admitted to another violation of SCR 20:1.3 by failing to either obtain and present a settlement offer to a minor child's parents, place the matter in litigation, or advise the clients he did not believe the case was worth pursuing and that they should pursue another attorney if they wished to proceed. Although a $5,000 offer to settle the claim had been tendered, Attorney Reitz never presented the offer to the minor's parents. ¶28 On June 15, 2012, the referee found that the parties' stipulation set determination of forth an adequate misconduct for each Attorney Reitz had pled no contest. factual of the basis counts for a to which The referee concluded that a 12-month suspension, rather than the ten months proposed by 16 Nos. 2010AP1576-D & 2011AP1764-D the parties, was an appropriate sanction for Attorney Reitz's misconduct. The referee said the misconduct was serious and the trust account records maintained by Attorney Reitz were in a serious state of disarray. The referee said that due to the poor recordkeeping, Attorney Reitz's law firm overpaid itself fees from one trust account balance. account, resulting in a negative trust The referee also said Attorney Reitz's client trust accounts were used as a personal checkbook for the law firm's attorneys, with payments accounts to both Attorney Reitz being and made his from partner the on trust numerous occasions. ¶29 The referee said despite the fact that Attorney Reitz has been disciplined on two other occasions, he has continued to fail to comply with supreme court rules. especially disturbing investigated by that while the OLR for The referee found it Attorney trust account still committing additional misconduct. Reitz was violations being he was The referee concluded that the severity of the misconduct, the need to protect the public, and seriousness the of need his to misconduct suspension is appropriate. a condition provide the impress upon Attorney demonstrates that Reitz a the 12-month The referee also recommended that as of reinstatement OLR with Attorney sufficient Reitz documentation be to required to demonstrate that all funds in his trust accounts were distributed to the rightful owner, and the referee suggests that if Attorney Reitz's license is reinstated, the OLR should monitor his trust account activity for at least two years. 17 Nos. ¶30 2010AP1576-D & 2011AP1764-D Attorney Reitz appealed raising two issues: (1) are many of the factual findings of the referee unsupported by the record and improperly relied upon in forming a basis for her recommendations; and (2) are the recommendations for sanction of the referee appropriate under the facts and findings of this case. ¶31 Attorney referee's Reitz's findings of appeal fact did relating not to misconduct to which he pled no contest. challenge those counts the of He argued, however, that many of the referee findings of fact related to the 13 counts of misconduct which were dismissed by the OLR. As to the appropriate sanction, Attorney Reitz argued that the ten-month suspension recommended by the parties, rather than the 12-month suspension recommended by the referee, was an appropriate level of discipline. ¶32 The OLR agreed that many of the referee's findings of fact related to misconduct counts that were dismissed. The OLR also agreed that a ten-month suspension was appropriate. In response to a court order, on December 10, 2012, the parties filed a stipulation identifying the findings of fact in the referee's report that relate to counts that were dismissed. ¶33 A referee's findings of fact will not be set aside unless clearly erroneous. novo. Conclusions of law are reviewed de See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. free to regardless impose of whatever the discipline referee's it deems recommendation. 18 This court is appropriate, See In re Nos. 2010AP1576-D & 2011AP1764-D Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶34 After careful review of the entire record, we agree with the parties that the referee's findings of fact identified in their December 10, misconduct that were 2012 stipulation dismissed. As related a result to counts we deem of those findings of fact clearly erroneous and will not consider them in reaching our decision in this case. remaining findings findings support engaged in all of the fact and legal We adopt the referee's further determine conclusion of the counts of that professional that those Attorney Reitz misconduct set forth in the parties' stipulation. ¶35 impose We now turn to the appropriate level of discipline to for Attorney Reitz's professional misconduct. The majority of the misconduct counts in this case involve trust account violations. comment to property SCR of Trust account violations are serious. 20:1.15 others with fiduciary." Attorney provides, "A lawyer the care required Reitz has admitted of that must a The hold the professional he failed to create and retain complete trust account records and that he provided only incomplete and inaccurate records to the OLR in the course of its investigation. trust account Carolina violations, Supreme S.C. 242, 516 presents clear we In a recent case involving found instructive Court's holding in S.E.2d 661 (1999): "When and convincing Matter evidence of the Miles, disciplinary of South trust 335 counsel account violations or other inadequate recordkeeping, a lawyer's records 19 Nos. 2010AP1576-D & 2011AP1764-D must be sufficiently detailed to overcome the allegations." at 663. Id. See In re Disciplinary Proceedings Against Weigel, 2012 WI 124, ¶47, 345 Wis. 2d 7, 823 N.W.2d 798. ¶36 Attorney Weigel's trust account violations resulted in the revocation of his license to practice law in Wisconsin. By Attorney Weigel's own admission, his law firm's trust account ran a deficit of between $100,000 and $1,000,000 for over 13 years. that We stated, "A six- or seven-figure deficit in an account holds client proportions" aggravated and funds "it pattern is would of an be ethical difficult failure to misconduct. . . ." of epic a more imagine As a result, we concluded that any sanction less than revocation would undermine the public's confidence in the honesty and integrity of the bar. Id., ¶52. Although Attorney Reitz's misconduct, in the management of his trust accounts and otherwise, is serious, it does not reach the "epic proportions" of the Weigel case and thus warrants a lesser sanction. ¶37 The OLR cited a number of cases in support of its recommendation that a ten-month license suspension would be an appropriate level of discipline. The OLR notes that in In re Disciplinary Proceedings Against Van Groll, 2005 WI 140, 286 Wis. 2d 41, 704 N.W.2d 905, the attorney's license was suspended for one year for nine counts of misconduct arising out of his handling of client trust truthful information funds, failing during the OLR's to provide full investigation, and filing false State Bar of Wisconsin certifications, and failing to file income tax returns for five years. 20 In the OLR's opinion, Nos. 2010AP1576-D & 2011AP1764-D Attorney Reitz's misconduct is less serious than Attorney Van Groll's. ¶38 The OLR also notes that in In re Disciplinary Proceedings Against Scanlan, 2006 WI 38, 290 Wis. 2d 30, 712 N.W.2d 877, the attorney's license was suspended for six months for misconduct arising out of nine grievance matters consisting of practicing law while suspended, failing to deposit advanced fees in a trust account, failing to return an unearned fee, and failing to timely respond to the OLR's investigation. ¶39 similar The OLR also believes that Attorney Reitz's conduct is to that at issue in In re Disciplinary Proceedings Against Schuster, 2006 WI 21, 289 Wis. 2d 23, 710 N.W.2d 458, in which the attorney's license was suspended for nine months for various trust account issues and making misrepresentations to the OLR. The OLR says Attorney Reitz's misconduct is aggravated by the fact that he committed more violations than did Attorneys Scanlan or Schuster, and he also has a more serious disciplinary history. In mitigation of Attorney Reitz's misconduct, the OLR notes that Attorney Reitz has the absence of a dishonest or selfish motive and has cooperated with the OLR during the course of this disciplinary proceeding. ¶40 Upon careful consideration, we conclude that a ten- month suspension of Attorney Reitz's license to practice law in Wisconsin is an appropriate sanction. A ten-month suspension is generally consistent with the level of discipline imposed in prior cases and adheres to the imposing progressive discipline. 21 court's general practice of We agree with the referee that Nos. 2010AP1576-D & 2011AP1764-D Attorney Reitz should be required to pay the full costs of the proceeding. We disburse funds all also deem in it his appropriate trust to require to their accounts him to rightful owners; if the rightful owners cannot be located, to transfer the funds to the state treasurer's unidentifiable property. recommended condition that of office as unclaimed or Although the parties and the referee these disbursements Attorney Reitz's should be reinstatement, made we as find a it appropriate to order the payments made as part of the sanction as well as a condition of reinstatement. We also agree with the referee the that, upon his resumption of practice of law Attorney Reitz's trust account should be subject to monitoring by the OLR for a period of two years. ¶41 practice IT IS ORDERED that the license of Jeffrey A. Reitz to law in Wisconsin is suspended for a period of ten months effective May 3, 2013. ¶42 IT IS FURTHER ORDERED that Jeffrey A. Reitz shall distribute all funds in his trust accounts to their rightful owners. If the rightful owners cannot be located, Jeffrey A. Reitz shall transfer those funds to the state treasurer's office as unclaimed or unidentifiable property. Jeffrey A. Reitz shall provide documentation to the OLR that all funds in his trust accounts have been so distributed. ¶43 IT IS FURTHER ORDERED that within 60 days of the date of this order, Jeffrey A. Reitz shall pay to the Office of Lawyer Regulation the costs of $6,943.09. 22 this proceeding, which are Nos. ¶44 IT IS FURTHER ORDERED that 2010AP1576-D & 2011AP1764-D Jeffrey A. Reitz shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended. ¶45 practice IT IS FURTHER ORDERED that, upon his resumption of the of law, Jeffrey A. Reitz's trust account shall be subject to monitoring by the OLR for a period of two years. ¶46 IT IS FURTHER ORDERED that compliance conditions of this order is required for reinstatement. 22.29(4)(c). 23 with all See SCR Nos. 1 2010AP1576-D & 2011AP1764-D
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