2021 WI 31
SUPREME COURT OF WISCONSIN CASE NO.: 2020AP1082-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Benjamin J. Harris, Attorney at Law:
Office of Lawyer Regulation, Complainant, v. Benjamin J. Harris, Respondent.
DISCIPLINARY PROCEEDINGS AGAINST HARRIS
OPINION FILED: April 6, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: Per Curiam. NOT PARTICIPATING:
ATTORNEYS: 2021 WI 31 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2020AP1082-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Benjamin J. Harris, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant, APR 6, 2021 v. Sheila T. Reiff Clerk of Supreme Court Benjamin J. Harris,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review the report of the referee, the
Honorable Jeffrey A. Kremers, which recommends that the court
suspend Attorney Benjamin J. Harris' license to practice law in
Wisconsin for 60 days and order him to pay the full costs of
this disciplinary proceeding, which are $1,616.83 as of
February 8, 2021. Prior to the referee issuing his report,
Attorney Harris and the Office of Lawyer Regulation (OLR)
entered into a stipulation in which Attorney Harris pled no contest to the four counts of misconduct alleged in the OLR's No. 2020AP1082-D
complaint. Since neither party has appealed from the referee's
report and recommendation, our review proceeds under Supreme
Court Rule (SCR) 22.17(2).
¶2 Upon our independent review, we adopt the referee's
findings of fact and conclusions of law with respect to Attorney
Harris' misconduct. We agree that the misconduct warrants a 60-
day suspension of Attorney Harris' license to practice law in
Wisconsin. The OLR did not seek restitution, and we do not
order restitution. As is our usual custom, we order Attorney
Harris to pay the full costs of this disciplinary proceeding.
¶3 Attorney Harris was admitted to practice law in
Wisconsin in 1996 and practices in the Milwaukee area. He has
been previously disciplined on five prior occasions. In 2007,
he was privately reprimanded for failing to pursue the
resolution of a debt collection matter; failing to keep a client
informed of the status of the debt collection matter; failing to
proceed with a landlord matter or file a claim on behalf of his
client for one year; and failing to keep a client informed of the status of that matter. Private Reprimand No. 07-04
(electronic copy available at https://compendium.wicourts.gov/
app/raw/001931.html). In 2008, Attorney Harris was publicly
reprimanded for misconduct consisting of entering into a land
contract with a client without written consent; failing to
respond to a motion to amend a complaint and failing to attend
the motion hearing; failing to inform his client of the status
of the case and respond to the client's request for information; failing to timely act in furtherance of a resolution of a 2 No. 2020AP1082-D
client's equalization payment; failing to respond to the
client's telephone calls or notify the client of a proposed
stipulation and order in an upcoming hearing; and failing to
promptly return the client's file to him or successor counsel.
Public Reprimand of Benjamin J. Harris, No. 2008-03 (electronic
copy available at https://compendium.wicourts.gov/app/
raw/002029.html).
¶4 In 2010, Attorney Harris' license was suspended for 60
days for misconduct consisting of failing to keep a client
informed of the status of litigation; failing to attend a
damages hearing and a motion hearing; failing to notify the
client of the status of the case; failing to notify the client
of the dismissal of the appeal; and failing to advise the client
of an order granting a motion to enforce a judgment. In re
Disciplinary Proceedings Against Harris, 2010 WI 9, 322
Wis. 2d 364, 778 N.W.2d 154.
¶5 In 2012, Attorney Harris was privately reprimanded for
failing to have a written fee agreement and depositing a client's unearned advanced fee payment directly into his
business account. Private Reprimand No. 2012-20 (electronic
raw/002515.html).
¶6 In 2013, Attorney Harris' license was suspended for
five months for misconduct consisting of failing to timely file
a judgment of divorce and promptly prepare a QDRO; failing to
respond to a client's emails and telephone calls; failing to notify a client of his license suspension; failing to consult 3 No. 2020AP1082-D
with a client regarding the method and means of pursing the
client's claim; failing to advise a client of the dismissal of a
case; and failing to respond in a timely fashion to the OLR's
written request for information. In re Disciplinary Proceedings
Against Harris, 2013 WI 8, 345 Wis. 2d 239, 825 N.W.2d 285.
¶7 On June 25, 2020, the OLR filed a complaint against
Attorney Harris alleging four counts of misconduct arising out
of two client matters. The first client matter involved
Attorney Harris' representation of T.P. Attorney Harris was
retained to defend T.P. in three lawsuits. Attorney Harris'
conduct in two of those matters formed the basis for the
misconduct charged in the OLR's complaint.
¶8 On December 14, 2017, T.P. retained Attorney Harris to
defend him and a company he owned and operated in a small claims
lawsuit that involved claims of breach of contract and unjust
enrichment, initiated by Ramos Drywall, LLC. T.P. had hired
Ramos Drywall as a subcontractor on a project, and Ramos Drywall
claimed it had not been paid. ¶9 The initial return date for the small claims case was
set for December 18, 2017. A small claims publication summons
and notice in the case provided that defendants may have the
option of filing an answer before the court date to avoid the
necessity of a personal appearance on December 18, 2017. On
December 14, 2017, Attorney Harris filed an answer and
affirmative defenses, but he did not confirm that his filing
obviated the need to personally appear on December 18, 2017. Attorney Harris did not personally appear on that date. 4 No. 2020AP1082-D
¶10 On December 18, 2017, a default judgment was entered
against T.P. for $2,200 based on Attorney Harris' failure to
personally appear. T.P. learned of the entry of default
judgment in late December 2017 when he checked Wisconsin Circuit
Court Access. He notified Attorney Harris that a default
judgment had been entered.
¶11 On January 24 and 31, 2018, T.P. messaged Attorney
Harris asking for a response; asking for the case status;
expressing his frustration at the lack of communication; and
saying he felt Attorney Harris was "blowing me off." On
February 7, 2018, T.P. sent Attorney Harris an email saying he
had not heard from the attorney and that he had emailed and
texted about ten times trying to get a response.
¶12 On February 14, 2018, T.P. emailed Attorney Harris
again asking about the case status. On February 20, 2018,
Attorney Harris filed a motion to reopen the case. On February
27, 2018, T.P. sent Attorney Harris another message saying, "Can
you let me know. I've been emailing and waiting patiently for weeks now!!!!!"
¶13 On June 12, 2018, Attorney Harris' motion to reopen
the small claims case was granted. Over the next 18 months, the
case was adjourned several times, and pleadings were amended.
An evidentiary hearing was ultimately held on December 3, 2019,
and judgment was granted in favor of the plaintiffs in the
amount of $900. Attorney Harris continued to represent T.P. in
the case until its conclusion.
5 No. 2020AP1082-D
¶14 On February 20, 2018, T.P. retained Attorney Harris to
defend him and his company in a small claims lawsuit claiming
breach of contract and unjust enrichment. The case was
initiated by PM Construction and Restoration, LLC. Again, T.P.
had hired PM Construction as a subcontractor on a project.
¶15 On March 8, 2018, Attorney Harris filed an answer and
affirmative defenses. Mandatory mediation was scheduled for
April 9, 2018. The mediation notice warned, "Any cancelling or
rescheduling of mediation for any reason will be at the
discretion of the Mediation Center and will result in an
additional fee."
¶16 Attorney Harris alleges that he left a voice mail
message for the Mediation Center at the end of March 2018 saying
he had a conflict with the April 9, 2018 date. Attorney Harris
did not confirm that the mediation would be rescheduled nor did
he inform opposing counsel of his alleged request to reschedule.
Mediation Center files contain no note or other indication that
it received a phone message from Attorney Harris. ¶17 Neither Attorney Harris nor T.P. appeared for
mediation on April 9, 2018, although the other parties did
appear. On April 10, 2018, a small claims disposition notice
was filed by the Mediation Center, indicating the defendant had
failed to appear for the scheduled mediation. The court
commissioner reviewed the notice the same day, and on April 12,
2018, a default judgment was entered in favor of the plaintiffs.
¶18 On April 13, 2018, T.P. emailed Attorney Harris informing him of the default judgment and saying, "What is going 6 No. 2020AP1082-D
on with you? I have asked for you to represent us and respond
to my emails. Why are you ignoring me and not taking care of
defending us." Attorney Harris responded by saying he would
work on it "this weekend."
¶19 On April 27, 2018, T.P. emailed Attorney Harris again,
complaining that Attorney Harris had not responded and
questioning what Attorney Harris was going to do to "rectify the
issues." On April 30, 2018, two and a half weeks after the
default judgment had been entered, Attorney Harris filed a
motion to reopen the judgment. Over the objection of opposing
counsel, the motion was granted on June 4, 2018. The case was
ultimately settled in mediation, and an order for dismissal was
entered on October 2, 2019.
¶20 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Harris' representation of
T.P.:
Count 1: By failing to respond to multiple email and text messages from T.P. requesting information in the Ramos Drywall and PM Construction cases, Attorney Harris violated SCR 20:1.4(a)(4).1
Count 2: By failing to file a motion to reopen a default judgment until February 20, 2018, in the Ramos Drywall case, and failing to appear for mandatory mediation on April 9, 2018, or failing to confirm that mediation would be rescheduled, resulting in a default judgment in the PM Construction case, Attorney Harris, in each instance violated SCR 20:1.3.2
1 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly comply with reasonable requests by the client for information." 2 SCR 20:1.3 provides: "A lawyer shall act with reasonable diligence and promptness in representing a client."
7 No. 2020AP1082-D
¶21 The other client matter detailed in the OLR's
complaint involved Attorney Harris' representation of J.H., who
retained Attorney Harris to file a lawsuit on his behalf against
two former partners who had formed HSL Holdings, LLC, to own and
operate a tavern in Milwaukee.
¶22 On September 23, 2013, Attorney Harris filed a summons
and complaint for breach of contract and unjust enrichment. The
defendants filed a motion to dismiss based on errors or
omissions in the complaint. At a February 19, 2014 scheduling
conference, the court gave Attorney Harris 30 days to amend the
complaint. A calendar call was scheduled for April 18, 2014.
¶23 On April 18, 2014, the court contacted Attorney Harris
for a status update. A second calendar call was scheduled for
June 13, 2014, since an amended complaint had not yet been
filed.
¶24 On June 13, 2014, the court unsuccessfully tried to
reach Attorney Harris to see if the amended complaint would be
filed. The court set a third calendar call for June 23, 2014. On that date, Attorney Harris could not be reached. The court
contacted counsel for the defendants, who also had had no
contact from Attorney Harris. On June 24, 2014, the court sent
a notice saying that the matter was being placed on the July 28,
2014 dismissal calendar.
¶25 On July 17, 2014, Attorney Harris wrote to the court
asking the matter be removed from the dismissal calendar and
saying he intended to have the amended complaint filed by
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July 31, 2014. Defense counsel filed an objection to removing
the case from the dismissal calendar.
¶26 On July 31, 2014, the court signed an order for
dismissal of the case. That same day, Attorney Harris filed a
motion to file an amended complaint, a supporting affidavit, and
an amended complaint. The court took no action on those
filings.
¶27 On August 11, 2014, Attorney Harris filed a motion to
reopen the case, citing personal reasons for his failure to file
an amended complaint. The court denied the motion on August 27,
2014, finding that no good cause existed to vacate the dismissal
order.
¶28 On August 29, 2014, Attorney Harris refiled the
lawsuit. On June 10, 2015, the defendants filed a motion to
dismiss and later a motion for summary judgment. Due to a
judicial transfer of the case and the rescheduling of both
defense motions, no substantive activity took place in the case
until February 29, 2016. On that date, the court dismissed two parties from the lawsuit and denied the motion for dismissal and
summary judgment as to other parties. A pretrial conference was
scheduled for September 2016 and later continued to October 18,
2016, at which time trial was set for June 19, 2017.
¶29 On June 14, 2017, defense counsel requested and was
granted an adjournment of the trial. A pretrial conference was
scheduled for July 6, 2017. Attorney Harris failed to appear at
the July 6 pretrial conference.
9 No. 2020AP1082-D
¶30 On July 7, 2017, J.H. emailed Attorney Harris saying,
"What's going on with my case? I see on ccap that you didn't
show up in court yesterday." Attorney Harris responded by
saying he never received the notice. On July 12, 2017, the
defendants filed a motion to dismiss due, in part, to Attorney
Harris' nonappearance.
¶31 On July 14, 2017, J.H. asked Attorney Harris, "What
have you done as far as a follow up? I see that they have filed
for a motion to dismiss." Attorney Harris responded he would be
filing a response by the following Monday. In fact, Attorney
Harris' brief in opposition to the motion to dismiss was not
filed until August 28, 2017. On August 31, 2017, the motion to
dismiss was denied and trial was scheduled for November 20,
2017.
¶32 When J.H. had not heard from Attorney Harris since the
August 31, 2017 hearing on the motion to dismiss, he emailed
Attorney Harris on November 16, 2017, asking if the trial was
still on for November 20, 2017. Attorney Harris responded that same day saying they needed to meet at his office on November
19, 2017, the day before the trial. Attorney Harris had never
deposed any witnesses and conducted minimal or no discovery.
The case settled on the day of trial.
¶33 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Harris' representation of
J.H.:
Count 3: By failing to timely file an amended complaint and by failing to adequately prepare for
10 No. 2020AP1082-D
trial in J.H.'s cases, Attorney Harris, in each instance violated SCR 20:1.3.
Count 4: By failing to keep J.H. reasonably informed regarding the status of the case, Attorney Harris violated SCR 20:1.4(a)(3).3 ¶34 The referee was appointed on August 11, 2020. On
December 28, 2020, the parties filed a stipulation in which
Attorney Harris pled no contest to the four counts of misconduct
alleged in the OLR's complaint and agreed that the referee could
use the allegations of the complaint as an adequate factual basis to support the allegations of misconduct. The parties
agreed, subject to approval of the referee, that the appropriate
level of discipline to be imposed for Attorney Harris'
misconduct was a 60-day suspension of his license to practice
law in Wisconsin.
¶35 The referee issued his report and recommendation on
January 21, 2021. The referee adopted as his findings of fact
the entire contents of the parties' stipulation and, by
extension, those paragraphs of the OLR's complaint detailing the
misconduct. The referee found that the OLR had met its burden
of proof with respect to all four counts of misconduct alleged
in the complaint.
¶36 As to the appropriate sanction, the referee noted
Attorney Harris' lengthy disciplinary history and pointed out
that in each of the prior disciplinary matters Attorney Harris
was disciplined, at least in part, for failing to keep his
3SCR 20:1.4(a)(3) provides: "A lawyer shall keep the client reasonably informed about the status of the matter."
11 No. 2020AP1082-D
clients informed about the status of their matters or for
failing to respond to inquiries from his clients. The referee
said, "Here we go again."
¶37 The referee noted that Attorney Harris repeatedly
failed in his responsibility to maintain an appropriate level of
communication with his clients in order to keep them apprised of
the status of their respective matters, and in multiple
instances default judgments were entered against his clients.
The referee said the fact that the cases were ultimately
reopened and settled did not change the fact that the clients
suffered perhaps the loss of a faster resolution, and certainly,
the angst of not knowing what was transpiring or when, or even
if, Attorney Harris would bring the requisite motions to reopen.
The referee said the overarching failure in this case was
Attorney Harris' continued inability to maintain a sufficient
level of communication with his clients and to meet basic
requirements with respect to court filings and court dates. The
referee said:
The respondent's failure to keep his clients informed and to engage in even a modest level of professional attention to the legal steps needed to protect his client's interests strikes at the very core of the attorney client relationship. Clients trust their attorney to either prosecute or defend their case to the best of their ability. When a lawyer fails to protect those rights and fails to keep their client informed about what is happening they harm not only that client but the legal profession as a whole. ¶38 The referee said although Attorney Harris failed in his responsibility to his clients once again, given the
12 No. 2020AP1082-D
relatively minor nature of the harm that resulted, his
cooperation with the OLR proceeding and his acceptance of
responsibility, a 60-day license suspension was an appropriate
sanction. The OLR did not seek restitution, and the referee did
not order restitution.4 The referee also recommended that
Attorney Harris pay the full costs of the disciplinary
proceeding.
¶39 We will affirm a referee's findings of fact unless
they are clearly erroneous. See In re Disciplinary Proceedings
Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675
N.W.2d 747. The court may impose whatever sanction it sees fit,
regardless of the referee's recommendation. See In re
Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
4In its restitution statement, the OLR stated that its policy is to seek restitution only where: (1) There is a reasonably ascertainable amount; (2) The funds to be restored were in the respondent lawyer's direct control; (3) The funds to be restored do not constitute incidental or consequential damages; and (4) The grievant's or respondent's rights in a collateral proceeding will not likely be prejudiced. We remind the OLR that on January 16, 2020, the OLR's Board of Administrative Oversight (BAO) issued a report to this court recommending that the OLR's restitution policy should reflect the approach employed in In re Disciplinary Proceedings Against Ruppelt, 2017 WI 80, 377 Wis. 2d 441, 898 N.W.2d 473 and In re Medical Incapacity Proceedings Against Muwonge, 2017 WI 12, 373 Wis. 2d 173, 890 N.W.2d 575, and the BAO recommended that the OLR's restitution policy shift the burden onto the attorney to establish what offset, if any, is appropriate in determining the amount of restitution. Although the OLR's restitution statement is not framed in these terms, we read the restitution statement to mean that the OLR has determined that Attorney Harris met his burden to establish that he earned the fees he collected from his clients.
13 No. 2020AP1082-D
¶40 There is no showing that any of the referee's findings
of fact, based on the parties' stipulation, are clearly
erroneous, so we adopt them. We also agree with the referee's
legal conclusions that Attorney Harris violated the Supreme
Court Rules noted above.
¶41 With respect to the appropriate sanction, after
careful consideration, we agree that a 60-day suspension of
Attorney Harris' law license is appropriate. We reach this
conclusion in spite of the fact that this is Attorney Harris'
sixth disciplinary proceeding; the last proceeding resulted in a
five-month license suspension; and the common theme running
through all of the proceedings is, as the referee pointed out,
Attorney Harris' objective failure to keep his clients informed
and meet basic requirements with respect to court filings and
court dates.
¶42 We note, however, that it has been eight years since
Attorney Harris' last suspension; that case involved ten counts
of misconduct involving multiple clients; and involved a violation of SCR 20:8.4(c), dishonesty, fraud, deceit, or
misrepresentation. We agree with the referee that the gravity
of the misconduct here does not rise to the level of the
misconduct that gave rise to the 2013 suspension. Instead, the
misconduct in this case is very similar in nature to the 2010
case in which a 60-day suspension was imposed. We also note
that Attorney Harris accepted responsibility for his actions and
entered into a comprehensive stipulation, which obviated the need for a protracted disciplinary proceeding. 14 No. 2020AP1082-D
¶43 Although no two disciplinary matters are identical,
the imposition of a 60-day suspension is similar to the sanction
imposed in In re Disciplinary Proceedings Against Anderson, 2020
WI 82, 394 Wis. 2d 190, 950 N.W.2d 191. Attorney Anderson
received a 60-day suspension for six counts of misconduct
arising out of two client matters. The misconduct included
failing to communicate with clients and failing to timely
respond to clients' requests for information. Attorney Anderson
had been the subject of four previous disciplinary proceedings,
three reprimands and a 60-day suspension. As in this case, a
significant amount of time had passed since the last time the
attorney had been sanctioned. In addition, this case is
somewhat analogous to In re Disciplinary Proceedings Against
Hudec, 2019 WI 39, 386 Wis. 2d 371, 925 N.W.2d 2d 540. Attorney
Hudec received a 60-day suspension for six counts of misconduct
in two client matters. It was his sixth disciplinary
proceeding. He had previously received three private reprimands
and two public reprimands. The misconduct included failing to act with reasonable diligence and promptness in representing a
client and failing to keep the client reasonably informed about
the status of the matter. Based on the particular circumstances
of this case, and guided by past precedent, we conclude that a
60-day suspension of Attorney Harris' license is an appropriate
sanction.
¶44 As is our normal practice, we deem it appropriate to
impose the full costs of this proceeding on Attorney Harris.
15 No. 2020AP1082-D
¶45 IT IS ORDERED that the license of Benjamin J. Harris
to practice law in Wisconsin is suspended for a period of 60
days, effective May 18, 2021.
¶46 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Benjamin J. Harris shall pay to the Office of
Layer Regulation the costs of this proceeding, which are
$1,616.83 as of February 8, 2021.
¶47 IT IS FURTHER ORDERED that Benjamin J. Harris shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
¶48 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
16 No. 2020AP1082-D