PER CURIAM.
¶ 1. We review the findings of fact, conclusions of law, and recommendations of Referee
Catherine M. Rottier for sanctions, pursuant to SCR 22.17(2).
Attorney Virginia Rose Ray was found to have engaged in professional misconduct in the course of her practice of law in violation of the Rules of Professional Conduct. The referee recommended a five-month suspension of her license to practice law, the payment of restitution, and the payment of the costs of the Office of Lawyer Regulation (OLR).
¶ 2. We approve the findings of fact and conclusions of law of the referee. However, we determine that the misconduct of Attorney Ray warrants the imposition of a six-month suspension of her license.
¶ 3. Attorney Ray was licensed to practice law in Wisconsin in 1988. Pursuant to
In re Disciplinary Proceedings Against Ray,
2002 WI 116, 256 Wis. 2d 19, 651 N.W.2d 727, her license was suspended for 60 days. The suspension has not yet been lifted because she has not satisfied the conditions of the order and has not petitioned for such relief. That case involved 12 ethical violations. Six concerned Attorney Ray's failure to cooperate with the Board of Attorneys Professional Responsibility, two were trust account violations, two were excessive fee violations, and two were violations of the prohibition against an offensive personality and failure to maintain respect.
¶ 4. The current disciplinary matter concerns three counts arising out of matters that occurred prior to imposition of the 2002 suspension: (1) charging an
unreasonable fee, in violation of SCR 20:1.5(a);
(2) improper termination of representation, in violation of SCR 20:1.16(d);
and (3) refusal to cooperate with the OLR's investigation of the grievance, in violation of
SCR 21.15(4)
and SCR 22.03.
Neither side has appealed from the referee's report.
¶ 5. The court will adopt the referee's findings of fact unless they are clearly erroneous.
In re Disciplinary Proceedings Against Charlton,
174 Wis. 2d 844, 498 N.W.2d 380 (1993). The court does not grant deference to the referee's conclusions of law and reviews them on a de novo basis.
In re Disciplinary Proceedings Against Norlin,
104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court also may impose whatever sanction it sees fit regardless of the referee's recommendation.
In re Dis
ciplinary Proceedings Against Widule,
2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 6. This case concerns Attorney Ray's representation of a divorce client. She and her client entered into a written agreement under which he would pay her a flat fee of $5000 for representation through entry of the judgment of divorce.
¶ 7. Per the agreement, Attorney Ray began representing the client in January 2002. Most of her efforts thereafter were devoted to an attempt to free the client from a default judgment for which she was not responsible. However, the client was still entitled to proceed to trial but only on financial matters arising out of the divorce.
¶ 8. In mid-April Attorney Ray sought to withdraw from representing the client. She apparently had become aware of financial matters concerning the client that were contrary to representations he had made to her. The client apparently did not object to Attorney Ray withdrawing and she indicated she would assist him in finding new counsel. She also told the client she would refund $4000 of the retainer.
¶ 9. The two were not immediately successful in obtaining new counsel and that required Ray to continue to represent him as necessary. By early May the client had new counsel and that ended Attorney Ray's representation. She agreed to facilitate the change in counsel but now refused to refund any of the retainer. This led the client to submit a grievance to the OLR.
¶ 10. The OLR sent letters to Ray in July and August 2002 requesting a response but she did not respond. She was also asked to attend a district committee meeting a few months later but did not attend.
¶ 11. The OLR alleged in count one that the original fee arrangement was unreasonable. However,
the referee found that the OLR offered no evidence proving that Attorney Ray charged more than other attorneys would have charged for the same services. Rather, the OLR had conceded that the $5000 was unreasonable only because it was intended to cover for services through entry of judgment and Attorney Ray did not provide services for that period.
¶ 12. Accordingly, the referee concluded, as a matter of law, that the OLR had not met its burden of proof on count one since there was nothing inherently unreasonable about the fee.
¶ 13. We do not find the referee's findings of fact to be clearly erroneous. We further agree with the referee's conclusion that there was no violation of SCR 20:1.5(a).
¶ 14. The OLR further alleged in count two that Attorney Ray improperly terminated her representation given that SCR 20:1.16(d) requires that an attorney refund any unearned advance payment of fee.
¶ 15. The referee found as a matter of fact that there had been no refund of the unearned fee and further concluded, as a matter of law, that the rule was violated.
¶ 16. With respect to the exact amount of the unearned fee, the referee concluded that Attorney Ray had spent at least 12.5 total hours in representing the client and, at a reasonable rate of $200 per hour, the value of her services was $2500. The referee therefore concluded that the remaining $2500 should be refunded to the client.
¶ 17. The referee's findings of fact with respect to this count are not clearly erroneous. Given the evidence
presented at the hearing, the establishment of $2500 as the unearned fee is reasonable. We further agree with the referee that there was, as a matter of law, a violation of SCR 20:1.16(d).
¶ 18. The OLR further alleged in count three that Attorney Ray failed to cooperate with the investigation of the grievance. Given that she admitted her lack of cooperation, the referee found and concluded that a violation of SCR 21.15(4) and SCR 22.03 had occurred.
¶ 19. The OLR had asked that the referee recommend a nine-month suspension, restitution of $4000 to the client, and payment of the costs of the disciplinary proceeding.
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PER CURIAM.
¶ 1. We review the findings of fact, conclusions of law, and recommendations of Referee
Catherine M. Rottier for sanctions, pursuant to SCR 22.17(2).
Attorney Virginia Rose Ray was found to have engaged in professional misconduct in the course of her practice of law in violation of the Rules of Professional Conduct. The referee recommended a five-month suspension of her license to practice law, the payment of restitution, and the payment of the costs of the Office of Lawyer Regulation (OLR).
¶ 2. We approve the findings of fact and conclusions of law of the referee. However, we determine that the misconduct of Attorney Ray warrants the imposition of a six-month suspension of her license.
¶ 3. Attorney Ray was licensed to practice law in Wisconsin in 1988. Pursuant to
In re Disciplinary Proceedings Against Ray,
2002 WI 116, 256 Wis. 2d 19, 651 N.W.2d 727, her license was suspended for 60 days. The suspension has not yet been lifted because she has not satisfied the conditions of the order and has not petitioned for such relief. That case involved 12 ethical violations. Six concerned Attorney Ray's failure to cooperate with the Board of Attorneys Professional Responsibility, two were trust account violations, two were excessive fee violations, and two were violations of the prohibition against an offensive personality and failure to maintain respect.
¶ 4. The current disciplinary matter concerns three counts arising out of matters that occurred prior to imposition of the 2002 suspension: (1) charging an
unreasonable fee, in violation of SCR 20:1.5(a);
(2) improper termination of representation, in violation of SCR 20:1.16(d);
and (3) refusal to cooperate with the OLR's investigation of the grievance, in violation of
SCR 21.15(4)
and SCR 22.03.
Neither side has appealed from the referee's report.
¶ 5. The court will adopt the referee's findings of fact unless they are clearly erroneous.
In re Disciplinary Proceedings Against Charlton,
174 Wis. 2d 844, 498 N.W.2d 380 (1993). The court does not grant deference to the referee's conclusions of law and reviews them on a de novo basis.
In re Disciplinary Proceedings Against Norlin,
104 Wis. 2d 117, 310 N.W.2d 789 (1981). The court also may impose whatever sanction it sees fit regardless of the referee's recommendation.
In re Dis
ciplinary Proceedings Against Widule,
2003 WI 34, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 6. This case concerns Attorney Ray's representation of a divorce client. She and her client entered into a written agreement under which he would pay her a flat fee of $5000 for representation through entry of the judgment of divorce.
¶ 7. Per the agreement, Attorney Ray began representing the client in January 2002. Most of her efforts thereafter were devoted to an attempt to free the client from a default judgment for which she was not responsible. However, the client was still entitled to proceed to trial but only on financial matters arising out of the divorce.
¶ 8. In mid-April Attorney Ray sought to withdraw from representing the client. She apparently had become aware of financial matters concerning the client that were contrary to representations he had made to her. The client apparently did not object to Attorney Ray withdrawing and she indicated she would assist him in finding new counsel. She also told the client she would refund $4000 of the retainer.
¶ 9. The two were not immediately successful in obtaining new counsel and that required Ray to continue to represent him as necessary. By early May the client had new counsel and that ended Attorney Ray's representation. She agreed to facilitate the change in counsel but now refused to refund any of the retainer. This led the client to submit a grievance to the OLR.
¶ 10. The OLR sent letters to Ray in July and August 2002 requesting a response but she did not respond. She was also asked to attend a district committee meeting a few months later but did not attend.
¶ 11. The OLR alleged in count one that the original fee arrangement was unreasonable. However,
the referee found that the OLR offered no evidence proving that Attorney Ray charged more than other attorneys would have charged for the same services. Rather, the OLR had conceded that the $5000 was unreasonable only because it was intended to cover for services through entry of judgment and Attorney Ray did not provide services for that period.
¶ 12. Accordingly, the referee concluded, as a matter of law, that the OLR had not met its burden of proof on count one since there was nothing inherently unreasonable about the fee.
¶ 13. We do not find the referee's findings of fact to be clearly erroneous. We further agree with the referee's conclusion that there was no violation of SCR 20:1.5(a).
¶ 14. The OLR further alleged in count two that Attorney Ray improperly terminated her representation given that SCR 20:1.16(d) requires that an attorney refund any unearned advance payment of fee.
¶ 15. The referee found as a matter of fact that there had been no refund of the unearned fee and further concluded, as a matter of law, that the rule was violated.
¶ 16. With respect to the exact amount of the unearned fee, the referee concluded that Attorney Ray had spent at least 12.5 total hours in representing the client and, at a reasonable rate of $200 per hour, the value of her services was $2500. The referee therefore concluded that the remaining $2500 should be refunded to the client.
¶ 17. The referee's findings of fact with respect to this count are not clearly erroneous. Given the evidence
presented at the hearing, the establishment of $2500 as the unearned fee is reasonable. We further agree with the referee that there was, as a matter of law, a violation of SCR 20:1.16(d).
¶ 18. The OLR further alleged in count three that Attorney Ray failed to cooperate with the investigation of the grievance. Given that she admitted her lack of cooperation, the referee found and concluded that a violation of SCR 21.15(4) and SCR 22.03 had occurred.
¶ 19. The OLR had asked that the referee recommend a nine-month suspension, restitution of $4000 to the client, and payment of the costs of the disciplinary proceeding. It contended that progressive discipline was required given that Attorney Ray previously had been suspended, thereby demonstrating a pattern of misconduct particularly with respect to failing to cooperate with the OLR.
¶ 20. The referee concluded that a nine-month suspension "is too much and verges on the punitive, rather than the rehabilitative." The referee therefore recommended a five-month suspension along with restitution of $2500 and payment of the costs.
¶ 21. We agree that restitution and payment of costs is an appropriate part of the sanction to be imposed in this case. However, we believe that a five-month suspension is insufficient and that the period of suspension should be six months.
¶ 22. Prior disciplinary cases have frequently followed a progressive discipline scheme.
See e.g., In re Disciplinary Proceedings Against Louderman,
230 Wis. 2d 200, 601 N.W.2d 625 (1999) (public reprimand follows three private reprimands). Given that this is Attorney Ray's second disciplinary matter, a suspension
in excess of the previous two-month suspension is clearly warranted. A six-month suspension will require Attorney Ray, pursuant to SCR 22.28(3),
to formally petition for reinstatement, rather than simply be reinstated upon the OLR's affirmation that she has complied with the conditions of the suspension order. Given her substantial recent disciplinary hearing, a full reinstatement proceeding under SCR 22.29
will serve to verify to the legal community and the public that
Attorney Ray can again be entrusted with the responsibilities that accompany the practice of law in this state. This will he in addition to any conditions she must yet satisfy to be relieved from the 2002 suspension.
¶ 23. IT IS ORDERED that the license of Attorney Virginia Rose Ray to practice law in Wisconsin is suspended for a period of six months, effective the date of this order.
¶ 24. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ray shall refund to the client involved in this matter the unearned retainer of $2500.
¶ 25. IT IS FURTHER ORDERED that Attorney Ray shall comply with the provisions of SCR 22.26 concerning the duties of an attorney whose license to practice law has been suspended, to the extent she has not already done so arising out of the prior suspension.
¶ 26. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Ray shall pay to the OLR the costs of this proceeding in the amount of $4721.59.