Office of Lawyer Regulation v. Sherman Ward Hackbarth
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2013 WI 12 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2012AP668-D In the Matter of Disciplinary Proceedings Against Sherman Ward Hackbarth, Attorney at Law: Office of Lawyer Regulation, Petitioner, v. Sherman Ward Hackbarth, Respondent. DISCIPLINARY PROCEEDINGS AGAINST HACKBARTH OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: January 25, 2013 2013 WI 12 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2012AP668-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Sherman Ward Hackbarth, Attorney at Law: FILED Office of Lawyer Regulation, JAN 25, 2013 Petitioner, Diane M. Fremgen Clerk of Supreme Court v. Sherman Ward Hackbarth, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 referee, PER CURIAM. James C. We review Boll, Jr., the recommendation that Attorney of Sherman the Ward Hackbarth be publicly reprimanded for professional misconduct. That misconduct consists of failing to act with reasonable diligence and promptness in representing a client, failing to adequately communicate with a client, failing to return an advance payment of a fee that he had not earned, and failing to respond to the OLR's investigative requests. The referee also recommended that Attorney Hackbarth be required to pay the costs No. 2012AP668-D of the proceeding, which total $436.56 as of October 15, 2012. The referee further recommended that Attorney Hackbarth be required to make restitution to the Wisconsin Lawyers' Fund for Client Protection (the Fund) in the amount of $1,000. ¶2 We adopt the conclusions of law. referee's findings of fact and We agree with the referee's conclusion that Attorney Hackbarth's professional misconduct warrants a public reprimand. We further order that Attorney Hackbarth make restitution to the Fund as described below, and that he pay the full costs of this disciplinary proceeding. ¶3 Attorney Hackbarth was admitted to practice law in Wisconsin in 2005. The most recent address he has on file with the Wisconsin State Bar October 27, of 2010, this court is in Madison, suspended Wisconsin. Attorney On Hackbarth's Wisconsin law license for his failure to cooperate with the OLR investigation of administratively comply with this matter. suspended mandatory in His June continuing 2010 legal license for his education also was failure to reporting requirements, and in October 2010 for his failure to pay bar dues and assessments and his failure to file the required trust account certification. His license remains administratively suspended. ¶4 Attorney Hackbarth did not answer or otherwise appear in this disciplinary proceeding, and the referee made findings of fact and conclusions of law in response to the OLR's motion for default judgment. 2 No. ¶5 2012AP668-D The OLR's complaint alleged that in late August or early September 2009, HJ Liquors, LLC hired Attorney Hackbarth to represent it in the acquisition of another business. HJ Liquors made it clear to Attorney Hackbarth that time was of the essence, as it expected to operate the new business in October 2009. HJ Liquors paid Attorney Hackbarth $1,000 as an advanced fee. ¶6 Attorney Hackbarth did not draft any documents or take other actions to represent HJ Liquors in the acquisition. He also failed to respond to numerous e-mails and telephone calls from HJ Liquors' principals. ¶7 On October 6, 2009, HJ Liquors terminated Attorney Hackbarth's representation and demanded a refund of the $1,000 advanced fee. Attorney Hackbarth did not refund any portion of the $1,000 advanced fee. ¶8 On October 16, 2009, HJ Liquors filed a grievance against Attorney Hackbarth with the OLR. ¶9 On November 9, 2009, Attorney Hackbarth agreed to provide information regarding HJ Liquors' grievance to the OLR. He failed to do so. ¶10 On January 14, 2010, the OLR notified Attorney Hackbarth that it was investigating HJ Liquors' grievance and required Attorney Hackbarth's response to the grievance no later than February 8, 2010. ¶11 second response Attorney Hackbarth did not respond. On March 23, 2010, the OLR sent Attorney Hackbarth a request to the by regular grievance and by certified April 3 15, mail, 2010. requiring The a OLR's No. certified letter was delivered on or March around 2012AP668-D 24, 2010. Attorney Hackbarth did not respond. ¶12 third On July 13, 2010, the OLR wrote Attorney Hackbarth a letter in the HJ Liquors matter, requiring Attorney Hackbarth's response no later than seven days from when it was served upon him. On August 3, 2010, Attorney Hackbarth was personally served with the OLR's July 13, 2010 letter, along with the OLR's January 14 and March 23, 2010 letters. Attorney Hackbarth did not respond. ¶13 In September 2010 this court ordered Attorney Hackbarth to show cause why his Wisconsin law license should not be suspended for his failure to cooperate investigation of the HJ Liquors matter. not respond. On October 27, 2010, in the OLR's Attorney Hackbarth did this court temporarily suspended Attorney Hackbarth's Wisconsin law license. ¶14 The Fund subsequently reimbursed HJ Liquors $1,000 for the advanced fee it paid to Attorney Hackbarth. ¶15 The referee held a telephone scheduling conference on July 31, 2012. Attorney The referee had previously attempted to notify Hackbarth of the time and date of the scheduling conference via a letter sent to Attorney Hackbarth's last known address on file with the State Bar of Wisconsin, and to two other addresses one Milton, Wisconsin. in Madison, Wisconsin, and another in Attorney Hackbarth did not appear at the scheduling conference. 4 No. ¶16 2012AP668-D At the July 31, 2012 scheduling conference, the OLR moved for default judgment. The referee orally granted the motion. ¶17 making On September findings recommendation Hackbarth. declared of for 5, 2012, fact, the referee conclusions disciplinary filed of sanctions law, against a report and a Attorney The referee recommended that Attorney Hackbarth be in Hackbarth default. violated SCR The referee 20:1.31 by determined failing to that Attorney advance the interests of HJ Liquors in its business acquisition attempt. The referee further determined that Attorney Hackbarth violated SCR 20:1.4(a)(2), (3), and (4)2 and SCR 20:1.4(b)3 by failing to communicate in any way with the principals of HJ Liquors after receipt of the $1,000 advanced fee. The referee further 1 SCR 20:1.3 states, "A lawyer shall act with reasonable diligence and promptness in representing a client." 2 SCR 20:1.4(a)(2), (3), and (4) states as follows: A lawyer shall: . . . (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests by the client for information; . . . 3 SCR 20:1.4(b) states, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 5 No. 2012AP668-D determined that Attorney Hackbarth violated SCR 20:1.16(d)4 by failing to refund the $1,000 advanced fee paid by or on behalf of HJ Liquors when he failed to perform any of the work for which he Attorney 4 was hired. Hackbarth The referee further SCR 22.03(2) violated determined that (6)5 via and 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. 5 SCR 22.03(2) and (6) states: (2) 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 questions, furnish documents, and present any information deemed relevant to the investigation. . . . (6) In the course of the investigation, the respondent's wilful failure to provide relevant 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. 6 No. 2012AP668-D SCR 20:8.4(h)6 by failing to respond to the OLR's January 14, 2010, March 23, 2010, or July 13, 2010 letters. ¶18 Based on the determinations of misconduct, the referee recommended that Attorney Hackbarth be publicly reprimanded. The referee also recommended that Attorney Hackbarth be ordered to reimburse the Fund in the amount of $1,000 for the payment the Fund made to HJ Liquors due to Attorney Hackbarth's court review misconduct. ¶19 The matter is now before this referee's report and recommendation. so this matter is submitted set the No appeal has been filed, to not to the the court pursuant to SCR 22.17(2).7 ¶20 unless We will they are clearly aside erroneous. referee's In re fact findings Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We review conclusions of law de novo. Id. Finally, we determine the appropriate level of discipline given 6 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); . . . ." 7 SCR 22.17(2) provides as follows: 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. 7 No. 2012AP668-D the particular facts of each case, independent of the referee's recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶21 We adopt the findings of fact and conclusions of law set forth in the referee's report. referee's failed recommended to present In addition, we accept the sanctions. a defense Because despite Attorney being Hackbarth given multiple opportunities to do so, we declare him to be in default. We agree with the referee that Attorney Hackbarth has engaged in the serious misconduct alleged warranting a public reprimand. in the OLR's complaint, We also deem it appropriate to require Attorney Hackbarth to make restitution to the Fund in the amount of $1,000. extraordinary Finally, because this case presents no circumstances, we require pay the full costs of this matter. Attorney Hackbarth to See SCR 22.24(1m) (supreme court's general policy upon a finding of misconduct is to impose all costs upon the respondent attorney). ¶22 IT IS ORDERED that Sherman Ward Hackbarth is publicly reprimanded for his professional misconduct. is reminded that his license administratively suspended. practice Wisconsin, court law that in he has to Before he must satisfied his Attorney Hackbarth practice law Attorney provide remains Hackbarth evidence obligations to relating may this to continuing legal education reporting, bar dues and assessments, and trust account certification, see SCR 22.28(1), or, alternatively, that he has obtained waivers from the Board of 8 No. Bar Examiners of his continuing legal 2012AP668-D education reporting obligation and from the State Bar of Wisconsin of his bar dues and assessments and trust account certification obligations. ¶23 IT IS FURTHER ORDERED that within 60 days of the date of this order, Sherman Ward Hackbarth shall pay restitution to the Wisconsin Lawyers' Fund for Client Protection in the amount of $1,000. ¶24 IT IS FURTHER ORDERED that within 60 days of the date of this order, Sherman Ward Hackbarth shall pay to the Office of Lawyer Regulation the costs of this proceeding. ¶25 IT IS FURTHER ORDERED that the restitution is to be completed prior to paying costs to the Office of Lawyer Regulation. ¶26 IT IS FURTHER ORDERED that the director of the Office of Lawyer Regulation shall advise the court if there has not been full compliance with all conditions of this order. 9 No. 1 2012AP668-D
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