In re Disciplinary Proceedings Against Haberman

376 N.W.2d 852, 126 Wis. 2d 411, 1985 Wisc. LEXIS 2589
CourtWisconsin Supreme Court
DecidedNovember 26, 1985
DocketNo. 84-1572-D
StatusPublished
Cited by4 cases

This text of 376 N.W.2d 852 (In re Disciplinary Proceedings Against Haberman) 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.

Bluebook
In re Disciplinary Proceedings Against Haberman, 376 N.W.2d 852, 126 Wis. 2d 411, 1985 Wisc. LEXIS 2589 (Wis. 1985).

Opinion

PER CURIAM.

Attorney disciplinary proceeding; attorney’s license suspended.

Attorney Haberman appealed from the report and recommendation of the referee that his license to practice law in Wisconsin be suspended for two years for unprofessional conduct consisting of neglect of seven estates in which he acted as attorney or personal representative, acting in the presence of a conflict of interest in one of them, and failure to cooperate with the Board of Attorneys Professional Responsibility (Board) investigations into two of them. The referee also recommended that Attorney Haberman be required to turn over all files in the seven estates to the circuit court for assignment to other counsel, to pay reasonable attorney fees necessarily incurred in closing those estates, to reimburse the estates for tax penalties and interest resulting from his neglect, and to file a complete accounting in each of those estates in which he acted as personal representative.

Also, the referee recommended that Attorney Haber-man be ordered to pay $200 as a sanction for his failure [414]*414to submit to discovery in the course of the disciplinary proceeding. That recommendation is based on the referee’s having found Attorney Haberman in contempt of court by reason of his refusal to honor a subpoena requiring him to produce certain documents and appear personally for a deposition in the course of the Board’s investigation of and preparation for this disciplinary proceeding. Finally, the referee recommended that Attorney Haberman be required to pay the costs of this proceeding.

We determine that a two-year suspension of Attorney Haberman’s license is appropriate discipline for his unprofessional conduct, and we accept the referee’s other recommendations.

Attorney Haberman was admitted to practice law in Wisconsin in 1952, and practices in Milwaukee. He has not previously been the subject of an attorney disciplinary proceeding. The referee in this matter is Attorney Rudolph P. Regez.

After filing an answer denying most of the allegations of unprofessional conduct, Attorney Haberman filed a motion to dismiss the disciplinary proceeding for lack of jurisdiction. He argued that this court, the Board and the referee had no jurisdiction to determine whether he had engaged in unprofessional conduct in connection with the estates as long as those estates remained pending in the circuit court. He contended the jurisdiction of the circuit court in the probate proceedings is exclusive and that it includes the issue of his professional conduct in those proceedings. The referee denied that motion.

When the Board subsequently made a demand for the production of documents concerning those estates, Attorney Haberman refused to produce them, and he also refused to submit to a deposition. Shortly thereafter, Attorney Haberman filed a petition with this court ask[415]*415ing that the disciplinary proceeding be stayed pending completion of the probate matters. The court denied the petition.

Subsequently, when Attorney Haberman failed to appear or produce the requested documents, the Board filed a motion with the referee to compel Attorney Haberman to submit to a deposition and comply with the request for the production of documents. The referee entered an order to that effect and provided that sanctions would be imposed should Attorney Haberman fail to comply. Attorney Haberman disregarded that order and refused to submit discovery.

The referee then scheduled a hearing to determine whether a sanction should be imposed for Attorney Haberman’s failure to complete discovery and to determine whether Attorney Haberman was in contempt of court for failing to respond to a subpoena properly served upon him. Following that hearing, the referee found Attorney Haberman to be in contempt of court but gave him an opportunity to purge himself by responding to the subpoena and submitting to discovery on specified dates. Attorney Haberman did not do so, and the referee issued an order finding him in contempt, recommending to this court that he be ordered to pay $200 as a sanction, striking his answer to the Board’s complaint, and scheduling the evidentiary hearing in the disciplinary matter to be conducted as a default.

The referee advised Attorney-Haberman that, although the hearing would proceed as a default and neither he nor his attorney would be permitted to participate, he would have the opportunity to testify at the conclusion of the Board’s case provided that, prior to the hearing, he produce the documents, files and records previously demanded. Attorney Haberman chose not to testify at the hearing, but he made an offer of proof at the conclusion of the Board’s case. On the basis of the evidence [416]*416presented by the Board, the referee concluded that Attorney Haberman had engaged in unprofessional conduct by neglecting each of the following matters, in violation of SCR 20.32 (3).

(1) In a guardianship matter, the circuit court issued orders to show cause why Attorney Haberman should not be removed as guardian of an incompetent for his failure to file an account for each of two years. Following the ward’s death, the court entered an order allowing the guardianship accounts and directing the balance of the ward’s property, approximately $70,000, to be paid to Attorney Haberman as personal representative in the estate. When that order was entered, there was no indication that any notice of the guardianship accounts had been given to the decedent’s only heir.

Attorney Haberman had been appointed personal representative in the estate in February, 1980, but no inventory was filed in that estate until September, 1982. The court issued an order in October, 1981, requiring Attorney Haberman to show cause why a final judgment had not been entered, and hearings were held on that order to show cause eight times between November, 1981, and September, 1982. The court ultimately ordered Attorney Haberman to file an inventory, schedule a final hearing and file an order of discharge by specific dates. Attorney Haberman did not comply with that order, and, as of the date of the hearing in this disciplinary proceeding, March 1, 1985, there was no order approving the final account, no final judgment, no supplemental account, no inheritance tax certificates or income tax clearances filed in the estate.

Also, Attorney Haberman failed to timely pay 1979, 1981 and 1983 real estate taxes on the estate’s property, notwithstanding that at all times there were sufficient funds in the estate to make timely payment of those taxes. As of the date of the disciplinary hearing, the [417]*4171983 taxes remained unpaid. Further, Attorney Haber-man incorrectly computed the inheritance tax, resulting in an additional tax of approximately $1,300, plus interest of approximately $1,200, all of which had not been paid at the time of the disciplinary hearing, despite the Department of Revenue’s having sent a delinquent tax warrant to the clerk of the circuit court in October, 1984, and having sent Attorney Haberman notice of the unpaid inheritance taxes. In addition, Attorney Haber-man failed to timely file fiduciary income tax returns for three calendar years.

The decedent’s heir made repeated requests to Attorney Haberman for information, as did an attorney he had retained, but Attorney Haberman failed to properly respond to them. Of the total estate, Attorney Haber-man had distributed only $20,000, which he distributed in December, 1982.

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Bluebook (online)
376 N.W.2d 852, 126 Wis. 2d 411, 1985 Wisc. LEXIS 2589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-disciplinary-proceedings-against-haberman-wis-1985.