Disciplinary Proceedings v. Akey
This text of 531 N.W.2d 322 (Disciplinary Proceedings v. Akey) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Attorney disciplinary proceeding; attorney publicly reprimanded. ,
[2]*2We review the recommendation of the referee that Attorney Thomas N. Akey be publicly reprimanded as discipline for professional misconduct. That misconduct consisted of his neglect of client legal matters, his failure to consult with and inform his clients of action he was taking on their behalf and his failure to communicate with them the progress of those matters. We determine that the recommended public reprimand is appropriate discipline to impose for Attorney Akey's failure to meet his professional responsibilities to his clients.
Attorney Akey was licensed to practice law in Wisconsin in June, 1974 and practices in Minocqua. In 1990, he consented to a private reprimand from the Board of Attorneys Professional Responsibility (Board) for having neglected a client's legal matter. The referee in the instant proceeding, Attorney John E. Shannon, Jr., adopted findings of fact to which the parties had stipulated.
In April, 1986, a couple retained Attorney Akey to represent them in a claim against a company from which they had purchased a home. The clients asserted that because of its numerous defects, they had to move their family from the home.
In mid-December, 1986, the seller filed a foreclosure action against the clients and Attorney Akey filed an answer in which he asserted affirmative defenses and requested dismissal. When the court ordered that the affirmative defenses be designated as a counterclaim in an amended pleading within 20 days, Attorney Akey, without informing his clients of that order, did not file a counterclaim, deciding instead to file a separate action against the seller.
On February 17,1988, Attorney Akey appeared at the trial in the foreclosure action and moved to dismiss [3]*3his clients' answer and affirmative defenses without prejudices and to allow a default judgment to be entered against them. Two days later, Attorney Akey filed a separate action against the seller. When the court issued a default judgment and subsequently confirmed the sale of the house, it also rendered a deficiency judgment against Attorney Akey's clients for approximately $7,000.
While the foreclosure action was pending, the clients made numerous calls to Attorney Akey to learn the status of the matter but were unsuccessful. They did not learn of the deficiency judgment against them until they received an unfavorable credit rating when they attempted to make a consumer purchase.
In the separate action brought against the seller, Attorney Akey never obtained service of the pleadings and in October, 1988, the court dismissed the action without prejudice. Attorney Akey did not inform his clients of that dismissal and the clients did not learn of it until the fall of 1990, when other counsel they retained because Attorney Akey was not keeping them informed of the status of their matter made inquiry of the clerk of the court.
The referee concluded, as the parties had stipulated, that Attorney Akey's motion voluntarily dismissing his clients' answer and affirmative defenses and' permitting a default judgment to be entered against them without adequately consulting with his clients violated SCR 20:1.2(a),1 his failure to serve the [4]*4pleadings in the action commenced against the seller resulting in the dismissal of that action constituted a failure to act with reasonable diligence and promptness in a client's legal matter, in violation of SCR 20:1.3,2 and his failure to keep his clients informed of the progress of the foreclosure action, the entry of the deficiency judgment and the dismissal of their separate action violated SCR 20:1.4(a).3
As discipline for that misconduct, the referee recommended that the court publicly reprimand Attorney Akey. That recommendation was explicitly conditioned on Attorney Akey's satisfying the Board that the deficiency judgment against his clients has been satisfied and that his clients suffered no pecuniary loss as a result. In that respect, the record includes a copy of the agreement by which Attorney Akey and his former clients settled litigation the clients had commenced against him.
It Is Ordered that Attorney Thomas N. Akey is publicly reprimanded for professional misconduct.
[5]*5It Is Further Ordered that within 60 days of the date of this order Thomas N. Akey pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Thomas N. Akey to practice law in Wisconsin shall be suspended until further order of the court.
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Cite This Page — Counsel Stack
531 N.W.2d 322, 193 Wis. 2d 1, 1995 Wisc. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/disciplinary-proceedings-v-akey-wis-1995.