Office of Lawyer Regulation v. Michael M. Rajek

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2020 WI 81 SUPREME COURT OF WISCONSIN CASE NO.: 2018AP1418-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Michael M. Rajek, Attorney at Law: Office of Lawyer Regulation, Petitioner, v. Michael M. Rajek, Respondent. DISCIPLINARY PROCEEDINGS AGAINST RAJEK OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: Per Curiam. NOT PARTICIPATING: ATTORNEYS: October 20, 2020 2020 WI 81 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP1418-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Michael M. Rajek, Attorney at Law: FILED Office of Lawyer Regulation, Petitioner, OCT 20, 2020 v. Sheila T. Reiff Clerk of Supreme Court Michael M. Rajek, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 PER CURIAM. We review Referee Allan Beatty's report recommending we publicly reprimand Attorney Michael M. Rajek for professional misconduct and require him to pay the full costs of this proceeding, which are $8,151.08 as of February 20, 2020. Attorney Rajek has filed an objection to the recommended costs. ¶2 We adopt the referee's findings of fact and conclusions of law. We agree that Attorney Rajek's professional misconduct a warrants public reprimand and we deny Attorney No. 2018AP1418-D Rajek's objection to costs and order him to pay the full costs of this proceeding. The Office of Lawyer Regulation (OLR) did not seek restitution in this matter and none is ordered. ¶3 Attorney Wisconsin in professional Rajek 1974. was He has misconduct. admitted to previously In 1986, practice been he law in disciplined for received a private reprimand for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Private Reprimand 1986-5. In 2006, he received a public reprimand for committing a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Public Reprimand of Michael J. Rajek, No. 2006-4 (electronic copy available 001848.html). at In 2015, he was found to have committed five counts of professional conduct, but we imposed no discipline because of the Disciplinary technical Proceedings nature of Against the violations. Rajek, 2015 WI In 18, re 361 Wis. 2d 60, 859 N.W.2d 439. ¶4 complaint stemming On July alleging from 30, four Attorney criminal proceeding. 2018, the counts Rajek's OLR of filed a professional representation of disciplinary misconduct D.W. in a D.W. was charged in August 2011 with three felonies and a misdemeanor in Sawyer County. In September 2011, D.W. hired Attorney Rajek to represent him. There was an oral agreement that D.W. would pay Attorney Rajek a retainer fee of $30,000. No fee agreement was 2 signed at that time. On No. 2018AP1418-D September 22, 2011, D.W.'s wife paid Attorney Rajek a $5,000 advanced fee for D.W.'s representation. D.W.'s cash bond of $25,000 balance was pledged Rajek's fee.1 as payment of the of Attorney At some point, a fee agreement was signed, dated September 25, 2012. ¶5 On September 24, 2012, D.W. pled no-contest to one felony count and the misdemeanor and the State dismissed the other two felony counts. two years of D.W. was convicted and sentenced to incarceration and four years of extended supervision on the felony, and to nine months of jail time for the misdemeanor. ¶6 On January 28, 2013, Attorney Rajek filed a notice of intent to pursue postconviction relief on D.W.'s behalf. 13, 2013, Attorney Rajek filed a notice of appeal. On May In mid-July of 2013, a friend of D.W.'s family who is an Illinois attorney, contacted Attorney Rajek at the family's behest to ask about the status of D.W.'s appeal. ¶7 court of On July 22, 2013, Attorney Rajek filed a motion in the appeals seeking a briefing extension. The motion mentions the Illinois lawyer's request to review D.W.'s file. The court extended the deadline until September 24, 2013. Attorney Rajek then failed to timely file an appellate brief. On October 10, 2013, the court of appeals issued an order Subsequently the Sawyer County Clerk of Court issued a check dated March 14, 2013, in the amount of $19,859.11 to Attorney Rajek, after D.W. was sentenced and released from his bond. The amount of this check was the balance from D.W.'s $25,000 cash bail after fees and costs were subtracted. 1 3 No. 2018AP1418-D stating that unless the brief was filed within five days, or an extension requested, the court would dismiss D.W.'s appeal. October 14, 2013, Attorney Rajek requested another On briefing extension and also moved to withdraw as D.W.'s counsel, stating that D.W.'s family intended to retain the Illinois lawyer as appellate counsel. However, the Illinois attorney had not agreed to represent D.W. ¶8 On October 17, 2013, the court of appeals denied Attorney Rajek's motion to withdraw, noting that the prospective lawyer was not licensed in Wisconsin. The court granted another briefing extension until December 16, 2013. On December 13, 2013, Attorney Rajek requested and received yet another briefing extension. ¶9 On December 26, 2013, Attorney Rajek filed the appellate brief, in which he challenged an aspect of D.W.'s sentencing. Attorney The Rajek State had not moved to dismiss first filed a the appeal because postconviction motion. Attorney Rajek did not respond and on February 6, 2014, the appeal was dismissed because a postconviction motion was a prerequisite to the sentencing challenge. ¶10 which the Attorney Rajek then filed a motion for reconsideration court of appeals granted, extending the filing a postconviction motion until April 11, 2014. time for On April 11, 2014, Attorney Rajek filed a postconviction motion. The circuit court conducted a hearing on that motion in July 2014. The court corrected an error relating to pre-sentence credit and adjusted the sentence structure in a manner favorable to D.W. 4 No. ¶11 Two years Attorney Rajek. later, D.W. filed In August 2016, a 2018AP1418-D grievance against the OLR contacted Attorney Rajek, requiring a written response to D.W.'s grievance and a copy of the entire case essentially the next year, respond submitted only or file in the Attorney D.W. Rajek partial matter. either responses to For failed the to OLR's repeated requests for information. Attorney Rajek took the position false that D.W. was making representations. Eventually, the OLR filed a complaint and Referee Beatty was appointed. ¶12 were Litigation ensued. preparing for an On May 17, 2019, while the parties evidentiary hearing in this matter, Attorney Rajek notified the referee that he needed to take an immediate six-week medical leave. request, canceled suspended other the The referee acceded to the scheduled deadlines. At a evidentiary July 2019 hearing, and teleconference, Attorney Rajek requested another 30-day delay to address medical needs. ¶13 The evidentiary hearing in this matter was conducted on October 28, 2019. disciplinary D.W. had died during the pendency of this proceeding. evidentiary hearing. D.W.'s wife testified at the As relevant here, D.W.'s wife acknowledged that the signature on the fee agreement was D.W.'s, but she disputed that he had signed the fee agreement on September 25, 2012. D.W.'s correspondence Rajek. wife so D.W. also testified could request that his she file had from drafted Attorney She testified that D.W. never received his file. 5 For No. 2018AP1418-D his part, Attorney Rajek flatly disputed the OLR's charges and denied receiving a written D.W.'s successor counsel request testified for his that he file only from D.W. received a "thin" quantity of documents regarding D.W.'s case from Attorney Rajek. ¶14 After the post-hearing briefs. a report. evidentiary hearing, both parties filed On January 31, 2020, Referee Beatty filed After making certain factual findings, the referee concluded that Attorney Rajek had violated three of the four counts of misconduct alleged by the OLR. Specifically, the referee concluded that: By failing to communicate to D.W., in writing, the scope of his representation and the basis or rate of his fee or expenses for which D.W. would be responsible, before or within a reasonable time after commencing the representation, Attorney Rajek violated SCR 20:1.5(b)(l)2 (Count One). By failing to make a timely filing of a motion for postconviction relief, resulting in the dismissal of 2 SCR 20:1.5(b)(1) provides: The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate as in the past. If it is reasonably foreseeable that the total cost of representation to the client, including attorney's fees, will be $1000 or less, the communication may be oral or in writing. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client. 6 No. D.W.'s appeal, (Count Two). Attorney Rajek violated SCR 2018AP1418-D 20:1.33 By failing to timely provide the OLR with a written response to D.W.'s grievance and by willfully failing to furnish requested documents, Attorney Rajek violated SCR 22.03(2)4 and SCR 22.03(6)5, enforced via SCR 20:8.4(h)6 (Count Four). ¶15 However, the referee concluded that the OLR failed to prove Count Three, which alleged that Attorney Rajek violated SCR 20:1.16(d).7 The referee determined there was not sufficient SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client." 3 4 SCR 22.03(2) provides: 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. SCR 22.03(6) provides: "In the course of the investigation, the respondent's willful 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." 5 SCR 20:8.4(h) provides: "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)." 6 7 SCR 20:1.16(d) provides: 7 No. 2018AP1418-D evidence that D.W. had sent Attorney Rajek the letter demanding his file. ¶16 for The referee then considered the appropriate discipline Attorney Rajek's discipline for misconduct. Determining appropriate professional misconduct requires an assessment of: (1) the seriousness, nature, and extent of the misconduct; (2) the level of discipline needed to protect the public, the courts, and the legal system from repetition of the attorney's misconduct; (3) the need to impress upon the attorney the seriousness of the misconduct; and (4) the need to deter other attorneys from committing similar misconduct. In re Disciplinary Proceedings Against Hammis, 2011 WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884. On balance the referee agreed that a public reprimand was appropriate, together with the imposition of costs. ¶17 No appeal was filed so our review proceeds pursuant to SCR 22.17(2).8 In conducting our review, we affirm the referee's 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. 8 SCR 22.17(2) provides: 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 8 No. 2018AP1418-D findings of fact unless they are found to be clearly erroneous, and we review the referee's conclusions of law on a de novo basis. WI See In re Disciplinary Proceedings Against Inglimo, 2007 126, ¶5, whatever 305 Wis. 2d 71, sanction recommendation. we See see In 740 fit re N.W.2d 125. regardless Disciplinary We of the may impose referee's Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶18 Based upon our review, we accept the referee's findings of fact and conclusions of law in this matter and agree that Attorney Rajek committed the three counts of professional misconduct, as determined by the referee. We dismiss Count Three. ¶19 In recommending a public reprimand, the referee stated that it was "understandable that Attorney Rajek was frustrated by the [D.W.] grievance and the subsequent investigation." The referee acknowledged that D.W. "was a difficult and troubled person who However, committed the referee a very also serious observed and that dangerous Attorney offense." Rajek has demonstrated a pattern of difficulty completing tasks on time. ¶20 On balance, we agree that a public reprimand is sufficient to address this misconduct and is consistent with case law. No. See, e.g., Public Reprimand of Joseph E. Schubert, 2017-7 (electronic copy available 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. 9 at No. 2018AP1418-D reprimanding attorney with previous private (publicly reprimand for failing to file a timely postconviction motion or notice of appeal with and failure to communicate his client); Public Reprimand of John R. Dade, No. 2012-1 (electronic copy available at 002427.html) (publicly reprimanding attorney with prior discipline for failing to perform work for a criminal defendant, failing to communicate, client's file). and failing to timely deliver the This is, however, the fourth time Attorney Rajek has committed professional misconduct. We warn him that our policy of progressive discipline suggests that if he faces professional discipline again, the court is unlikely to consider a reprimand sufficient. ¶21 court's Finally, we address the question of costs. general practice to assess the full It is this costs of a disciplinary proceeding against the attorney being disciplined. SCR 22.24(1m). After the OLR filed its statement on costs, which were $8,151.08 as of February 20, 2020, Attorney Rajek filed a timely objection noting that OLR counsel had failed to attend a deposition on August 27, 2019, which he claims "cost my office $2,325.00" although "damages" were incurred. he does not explain how these On June 18, 2020, this court issued an order directing the OLR to provide a status update regarding the pending objection and afforded Attorney Rajek an opportunity to respond. 10 No. ¶22 2018AP1418-D On June 25, 2020, the OLR filed a response advising the court that it had not received Attorney Rajek's objection. The OLR provided the requested itemization of costs and agreed that Attorney Rajek should not be held responsible for the costs of the deposition in question, but explained those costs were not included in the statement of costs. ¶23 On July 30, belatedly objecting expenses attributable questioning the cost 2020, to Attorney being to the of a Rajek ordered to OLR counsel witness the faxed pay a the fees Attorney OLR letter called and Hendrix; at the evidentiary hearing; and disputing certain charges recorded by the referee. He also seeks reimbursement from the OLR for a retainer he claims he had to refuse because he was scheduled to attend the deposition at which the OLR failed to appear.9 ¶24 In its reply, the OLR declined to produce verified time stamps and original documents from OLR's file noting that our rules do not contemplate discovery in matters involving cost objections. SCR 22.24(2). Moreover, our rules explicitly define "costs" as including "fees and expenses of counsel for the office of lawyer regulation." SCR 22.001(3). To the extent Attorney Rajek implies counsel for the OLR stands to benefit financially by handling this case, the OLR notes that the OLR counsel derive no personal monetary benefit from handling lawyer On July 31, 2010, Attorney Rajek faxed a nearly identical document entitled Second Objection to Statement of Costs. 9 11 No. 2018AP1418-D regulation cases; cost collections inure to the OLR and the Wisconsin court system. ¶25 We reject Attorney Rajek's objection to the witness fees of J.W. He claims that "no proof of [J.W.'s] expense has been shown or that she was a necessary witness." belies this claim. The itemization of costs The record the OLR included the witness' expense voucher and hotel receipt. time of the deceased. evidentiary hearing, the grievant, filed At the D.W., was J.W. is his widow and she had personal knowledge of some facts and circumstances relevant to this proceeding. We accept be the OLR's determination that her necessary and helpful to the referee Rajek's objection Similarly, we to flatly costs would and we reject attributable reject testimony Attorney to Attorney this Rajek's objection to two of the referee's cost entries. witness. unsupported Finally, we decline to "reimburse" Attorney Rajek for his unsupported claim that he incurred "damages" and "lost income" of $8,040 in connection with defending himself in this matter. ¶26 After reviewing the record and the OLR's documentation, we conclude that the costs submitted by the OLR are reasonable under the circumstances of this case. Given the nature of the proceedings before the referee and the fact that there was a full evidentiary hearing, we conclude that the OLR's counsel fees, witness fees, and disbursements are justified. We deny Attorney Rajek's objection and conclude that he should bear the full costs of this proceeding. 12 No. ¶27 IT IS ORDERED that Attorney Michael M. 2018AP1418-D Rajek is publicly reprimanded. ¶28 IT IS FURTHER ORDERED that within 60 days of the date of this order, Michael M. Rajek shall pay to the Office of Lawyer Regulation the costs of $8,151.08 as of February 20, 2020. 13 this proceeding, which are No. 1 2018AP1418-D