Office of Lawyer Regulation v. Andrew J. Bryant

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2015 WI 7 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP312-D In the Matter of Disciplinary Proceedings Against Andrew J. Bryant, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Andrew J. Bryant, Respondent. DISCIPLINARY PROCEEDINGS AGAINST BRYANT OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: January 28, 2015 2015 WI 7 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP312-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Andrew J. Bryant, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JAN 28, 2015 v. Diane M. Fremgen Clerk of Supreme Court Andrew J. Bryant, Respondent. ATTORNEY disciplinary proceeding. Attorney's license suspended. ¶1 PER SCR 22.14(2)1 1 CURIAM. and SCR This case 22.17(2)2 on is a before us stipulation pursuant between to the SCR 22.14(2) states: The respondent may by answer plead no contest to allegations of misconduct in the complaint. The referee shall make a determination of misconduct in respect to each allegation to which no contest is pleaded and for which the referee finds an adequate factual basis in the record. In a subsequent disciplinary or reinstatement proceeding, it shall be (continued) No. parties, Attorney Andrew Regulation (OLR). J. Bryant 2013AP312-D and the Office of Lawyer In the stipulation, Attorney Bryant pled no contest to 37 of 38 counts of misconduct alleged in the OLR's third amended complaint. The referee issued a report recommending that the court suspend Attorney Bryant's license to practice law restitution for to three two years, clients order as set Attorney forth Bryant herein, to and pay order Attorney Bryant to pay the full costs of this proceeding, which total $9,175.05 as of September 2, 2014. ¶2 We approve stipulation and adopt conclusions of the the law. We recommendations stipulated agree stated findings that of Attorney in the fact and Bryant's professional misconduct warrants a three-year suspension of his Wisconsin law license. We further order that Attorney Bryant make restitution to M.W. and M.C. as outlined below, and that he pay the full costs of this disciplinary proceeding. conclusively presumed that the respondent engaged in the misconduct determined on the basis of a no contest plea. 2 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 No. ¶3 Attorney Wisconsin in Bryant admitted to He most recently practiced of 1992. was 2012, 2013AP312-D practice law as a in solo attorney in Verona. ¶4 In January Attorney Bryant received a consensual private reprimand for misconduct that included lack of competence, lack of diligence, failure to consult with his client regarding representation the were means to be On June 24, which pursued, client adequately informed. ¶5 by the and objectives failure the keep to of his Private Reprimand No. 2012-01. 2014, this court suspended Attorney Bryant's license for a period of four months for 15 counts of misconduct including: practice of law while his license was administratively suspended; failure to obtain a written conflict waiver; failure to account violations; utilize a lack diligence; of written fee agreement; failure to trust provide a client's file to successor counsel; lack of competence; failure to make reasonable efforts to expedite litigation; failure to keep his client reasonably informed; failure to explain matters sufficiently; knowingly disobeying circuit court scheduling and sanction orders; conduct intended merely to harass or delay; and misrepresentation. In re Disciplinary Proceedings Bryant, 2014 WI 43, 354 Wis. 2d 684, 847 N.W.2d 833. Against We imposed certain conditions on Attorney Bryant's future reinstatement in that matter. ¶6 complaint Id, ¶52. His license remains suspended. On February 8, 2013, the OLR filed the disciplinary giving rise to this decision. The complaint was amended several times; the third, and final, amended complaint 3 No. 2013AP312-D was filed January 24, 2014, and contained some 255 separately numbered paragraphs connection with describing Attorney 38 Bryant's counts of misconduct representation of in seven clients. ¶7 Before an evidentiary hearing was conducted on the complaint, Attorney Bryant withdrew his answers and entered into the stipulation now before the court, in which the parties agreed to dismiss Count 13 and Attorney Bryant pled no contest to the remaining 37 counts. ¶8 The referee, James C. Boll, accepted all of the factual allegations of the complaint as his findings of fact. Based on those facts, the referee concluded that Attorney Bryant had engaged in 37 separate acts of professional misconduct. ¶9 Given the volume of the factual findings and legal conclusions made by the referee, we do not repeat them all here. It is sufficient to provide the following brief summary of each client matter followed by summary information concerning the serious misconduct committed by Attorney Bryant. Matter of J.N. (Counts 1-2) ¶10 petition On August 8, 2008, J.N. and her husband filed a joint for divorce in Dane County circuit court. J.N. retained Attorney Bryant, signed a fee agreement, and paid an advanced fee. During the representation, Attorney Bryant engaged in trust account violations by failing to provide J.N. with an accounting, notice, or statement before disbursing trust account funds, and failed to respond to the OLR's requests for information concerning the ensuing grievance. 4 No. 2013AP312-D Matter of M.W. (Counts 3-11) ¶11 In April of 2010, M.W. retained Attorney Bryant to represent her in a divorce proceeding. Attorney Bryant failed to provide M.W. with any timely periodic invoices, and disbursed attorney's fees and trust account funds to himself providing M.W. an itemized bill or accounting. without He also failed to communicate with his client, failed to act with diligence in the representation, failed to provide M.W. with an accounting after final distribution of the trust property, failed to comply with a court commissioner's order, which resulted in his client being held himself in contempt, attorney's and fees. converted Attorney client Bryant funds further to pay failed to respond to the OLR's requests for information about the ensuing grievance, resulting license. Office in of the Lawyer temporary suspension Regulation v. of Andrew his J. law Bryant, Sup. Ct. Case No. 2012XX946-D. Matter of M.C. (Counts 12-15) ¶12 In April of 2009, M.C. hired Attorney Bryant to pursue claims against her former employer for termination based upon gender and for denial of employer insurance benefits for longterm disability substantive benefits. action in Attorney M.C.'s case, Bryant and failed repeatedly to take failed respond to her requests for information about her case. to He further failed to respond to the OLR's requests for information regarding the ensuing grievance, suspension of his law license. resulting in the temporary Office of Lawyer Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D. 5 No. 2013AP312-D Matter of G.G. (Counts 16-24) ¶13 In December of 2008, G.G., a City of Madison employee, slipped and fell on an icy restaurant stoop, sustaining injury. In 2009, G.G. hired Attorney Bryant to pursue a worker's compensation claim and a third-party personal injury lawsuit on his behalf. Attorney Bryant failed to prepare a written contingent fee agreement and, other that purportedly hiring an investigator meaningful to pursue action on evidence, the failed matter. take failed He to to any other return his client's calls or otherwise respond to requests for information. Ultimately, the statute of limitations on both the worker's compensation and the third-party claims expired. ¶14 In May of 2010, G.G. also hired Attorney Bryant to represent him in divorce proceedings. Attorney Bryant failed to prepare a written fee agreement, improperly paid himself $2,000 in attorney's communicate fees with from G.G. trust regarding account the funds, status of failed the to divorce proceedings, failed to respond to requests for information, and engaged in trust account violations. He then failed to respond to the OLR's requests for investigation relating to the ensuing grievance, resulting in the temporary suspension of his license to practice law. Office of Lawyer Regulation v. Andrew Bryant, Sup. Ct. Case No. 2012XX493-D. Matter of K.R. (Counts 25-30) ¶15 In March of 2010, K.R. hired Attorney Bryant to pursue an employment discrimination claim against his former employer. Attorney Bryant failed to prepare 6 a written contingent fee No. 2013AP312-D agreement, failed to pursue his client's claim, and repeatedly failed to respond to his client's requests for information. He further failed to respond to the OLR's requests for information regarding the ensuing grievance, resulting in suspension of his license to practice law. the temporary Office of Lawyer Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D. Matter of A.C. (Counts 31-34) ¶16 injury On at August his terminated. 15, place 2001, of A.C. suffered employment work-related was and a subsequently Attorney Bryant agreed to represent A.C. in his effort to pursue a discrimination claim with the Equal Rights Division of the Wisconsin Department of Workforce Development. ¶17 On March agreement. After 25, 2011, A.C. Attorney signed Bryant a filed contingent his appearance, A.C. never heard from him again. notice fee of Attorney Bryant failed to respond to requests of successor counsel to relinquish A.C.'s file, and then failed to respond to the OLR's requests for information relating to the ensuing grievance, resulting in the temporary suspension of Attorney Bryant's law license. Office of Lawyer Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D. Matter of J.F. (Counts 35-38) ¶18 In December of 2009, J.F. hired Attorney Bryant to pursue a personal injury claim on J.F.'s behalf. contingent fee agreement. Attorney Bryant J.F. signed a then repeatedly failed to communicate with J.F. and took no action on the case. He also failed to respond to the OLR's requests for information 7 No. 2013AP312-D relating to the ensuing grievance, resulting in the temporary suspension of his license to practice law. Office of Lawyer Regulation v. Andrew J. Bryant, Sup. Ct. Case No. 2012XX946-D. ¶19 Bryant The stipulation provided SCR 20:1.1, and the Attorney executed referee Bryant by the OLR concluded failed and that, to Attorney contrary provide to competent representation during his work on the matters of G.G. (Count 16) and K.R. (Count 25). ¶20 The stipulation provided and the referee concluded that, contrary to SCR 20:1.3, Attorney Bryant failed to take meaningful action or advance following client matters: (Count 17), K.R. his client's interests in the M.W. (Count 3), M.C. (Count 12), G.G. (Count 26), A.C. (Count 31), and J.F. (Count 35). ¶21 The stipulation provided and the referee concluded that, contrary to SCR 20:1.4(a)(3), Attorney Bryant failed to keep the following clients reasonably informed about the status of their matter: M.W. (Count 4), G.G. (Count 18), K.R. (Count 27), A.C. (Count 32), and J.F. (Count 36). ¶22 The stipulation provided and the referee concluded that, contrary to SCR 20:1.4(a)(4), Attorney Bryant failed to promptly comply with reasonable requests by information in the following client matters: the client for M.W. (Count 5), G.G. (Count 19), K.R. (Count 28), A.C. (Count 32), and J.F. (Count 37). ¶23 that, The stipulation contrary to SCR provided 20:1.4(b), 8 and the Attorney referee Bryant concluded failed to No. 2013AP312-D explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation during his work on the matters of M.C. (Count 14) and G.G. (Count 20). ¶24 that, The stipulation contrary improperly to SCR accepted provided and 20:1.5(b)(1) advanced the and fees referee (2), without concluded Attorney Bryant communicating in writing the basis or rate of the fee and expenses and failed to communicate in writing the purpose and effect of the advanced fees received in the matter of G.G. (Count 21). ¶25 that, The stipulation contrary to Attorney Bryant advanced payment SCR and 20:1.15(b)(4) failed of provided to fees properly in trust the and hold in referee SCR 20:1.15(g)(1), unearned the concluded matters fees and of J.N. (Count 1), M.W. (Count 6), and G.G. (Count 23). ¶26 The stipulation provided and the referee concluded that, contrary to SCR 20:1.15(d)(1) and (2), Attorney Bryant converted client funds to pay himself attorney's fees during his work on the M.W. matter (Counts 7 and 8). ¶27 that, The contrary stipulation to SCR provided 20:1.16(d), and the Attorney referee Bryant concluded failed to respond to multiple written requests to relinquish a client file during his representation of A.C. (Count 33). ¶28 The stipulation provided and the referee concluded that, contrary to SCR 20:1.5(c), Attorney Bryant failed to enter into a written contingent fee agreement during his work on the matters of G.G. (Count 22) and K.R. (Count 29). 9 No. ¶29 The stipulation provided and the 2013AP312-D referee concluded that by knowingly and without justification disobeying a court's order, resulting in the issuance of a court order finding his client in contempt, Attorney Bryant violated SCR 20:3.4(c) referee concluded during his work on the M.W. matter (Count 9). ¶30 that, The stipulation contrary to SCR provided and 20:8.4(c), the Attorney Bryant engaged in dishonesty, fraud, deceit, or misrepresentation during his work on the M.W. matter (Count 10). ¶31 The stipulation provided and the referee concluded that, contrary to SCR 22.03(2), SCR 22.03(6), and SCR 20:8.4(h), Attorney Bryant failed to provide relevant information to the OLR in a timely fashion, and failed to answer questions fully or otherwise provide information following matters: J.N. requested (Count 2), by M.W. the OLR, (Count in 11), the M.C. (Count 15), G.G. (Count 24), K.R. (Count 30), A.C. (Count 34), and J.F. (Count 38). ¶32 Attorney Bryant pled no contest to the above counts of misconduct. The parties' stipulation recited that Attorney Bryant understands the allegations of the complaint, that he enters the stipulation freely, knowingly, and voluntarily, and that he understands that he had a right to contest the matters and consult with and be represented by counsel. also explicitly health/medical stated issues in the are not misconduct. 10 stipulation a defense Attorney Bryant that to his the mental alleged No. ¶33 was 2013AP312-D The parties stipulated that a three-year suspension appropriate recommended discipline. restitution as The referee stipulated by agreed, the and parties, also noting that Attorney Bryant did not dispute that he owed restitution to these clients.3 The referee further recommended the imposition of full costs, which total $9,175.05 as of September 2, 2014. ¶34 and Because no appeal was filed from the referee's report recommendation, SCR 22.17(2). our review proceeds pursuant to 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. Disciplinary Proceedings 305 Wis. 2d 71, Against Inglimo, 740 N.W.2d 125. We 2007 review conclusions of law, however, on a de novo basis. we determine particular the facts appropriate of each level case, of Proceedings Against Widule, 2003 WI 34, the Id. discipline independent recommendation, but benefitting from it. WI of the In re 126, ¶5, referee's Finally, given the referee's In re Disciplinary ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. 3 In the OLR's restitution statement filed September 3, 2014, the OLR advises the court that it does not seek restitution in the matters of J.N., K.R., A.C., and J.F. because there was no fee dispute and/or reasonably ascertainable restitution amount, explains the reasons for the reduced request for restitution in the matter of M.W., and explains that it withdraws its request for restitution to G.G. and to the Wisconsin Lawyers' Fund for Client Protection. 11 No. ¶35 to which 2013AP312-D We adopt the findings of fact and conclusions of law the parties have stipulated and as adopted by the referee. ¶36 Turning to the sanction, we accept the parties' stipulation that a three-year suspension is an appropriate level of discipline in light of the facts of this case. presence of prior discipline, the number of Given the counts of misconduct, the number of clients affected by the misconduct, and the seriousness of the misconduct, a lengthy suspension is clearly required. ¶37 Because circumstances this and no case objection presents to costs no has extraordinary been filed, we further determine that Attorney Bryant should be required to pay the full costs of this matter. See SCR 22.24(1m) (supreme court's general policy upon a finding of misconduct is to impose all costs upon the respondent attorney). ¶38 ordered Finally, to pay we agree restitution that as Attorney stipulated Bryant by should the be parties: $10,312.20 to M.W. and $5,000 to M.C. ¶39 IT IS ORDERED that the license of Andrew J. Bryant to practice law in Wisconsin is suspended for a period of three years, effective the date of this order. ¶40 IT IS FURTHER ORDERED that within 60 days of the date of this order, Andrew J. Bryant shall pay to the Office of Lawyer Regulation the imposed costs of this proceeding. 12 No. ¶41 2013AP312-D IT IS FURTHER ORDERED that within 60 days of the date of this order, Andrew J. Bryant shall pay $10,312.20 to M.W. and $5,000 to M.C. as restitution. ¶42 IT IS FURTHER ORDERED that the restitution specified above is to be completed prior to paying costs to the Office of Lawyer Regulation. ¶43 IT IS FURTHER ORDERED that Andrew J. Bryant shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶44 IT IS FURTHER ORDERED that compliance with conditions of this order is required for reinstatement. SCR 22.28(2). 13 all See No. 1 2013AP312-D