2020 WI 94
SUPREME COURT OF WISCONSIN CASE NO.: 2018AP237-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Jeffery J. Drach, Attorney at Law:
Office of Lawyer Regulation, Complainant-Respondent-Cross Appellant, v. Jeffery J. Drach, Respondent-Appellant- Cross Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DRACH
OPINION FILED: December 23, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 26, 2020
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: Per Curiam. NOT PARTICIPATING: ANN WALSH BRADLEY, J., did not participate.
ATTORNEYS: For the respondent-appellant-cross-respondent, there were briefs filed by Dean R. Dietrich, Alyson D. Dieckman, and Dietrich VanderWaal, S.C., Wausau. There was an oral argument by Dean R. Dietrich.
For the complainant-respondent-cross-appellant, there were briefs filed by Brenda K. Sunby, William J. Weigel, and Office of Lawyer Regulation, Madison. There was an oral argument by William J. Weigel. 2020 WI 94 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP237-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Jeffery J. Drach, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent- FILED Cross Appellant, DEC 23, 2020 v. Sheila T. Reiff Clerk of Supreme Court Jeffery J. Drach,
Respondent-Appellant- Cross Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. This disciplinary matter comes to the
court on Attorney Jeffery J. Drach's appeal and the Office of
Lawyer Regulation's (OLR) cross-appeal of a report and
recommendation of Referee Robert E. Kinney. The referee based
his report in part on a stipulation between Attorney Drach and
the OLR, in which Attorney Drach admitted four counts of misconduct and agreed to make a $1,540 restitution payment to No. 2018AP237-D
one of the two clients involved in this matter. After holding
an evidentiary hearing to address the appropriate level of
discipline, the referee filed a report concluding that Attorney
Drach committed three of the four charged counts of misconduct,
and recommending a public reprimand. The referee further
recommended that this court order Attorney Drach to pay the full
costs of this disciplinary proceeding, which are $26,449.93 as
of November 9, 2020, and pay restitution beyond the stipulated
amount; specifically, a total of $2,744 to the two clients
involved in this matter, plus interest.
¶2 Through his appeal, Attorney Drach challenges the
referee's recommended public reprimand; he claims his misconduct
merits only a private reprimand. Attorney Drach also asks the
court to reduce the amount of costs in this case by 50 percent.
Finally, Attorney Drach argues that the restitution award
against him should not depart from the stipulated amount:
$1,540 to one of the clients involved this matter.
¶3 In its cross-appeal, the OLR argues that the referee erred in recommending the dismissal of one of the four
misconduct charges. The OLR further argues that Attorney
Drach's misconduct merits a public reprimand and an award of
full costs, as the referee recommended. The OLR does not seek
restitution beyond the stipulated amount.
¶4 After reviewing this matter and considering Attorney
Drach's appeal and the OLR's cross-appeal, we agree, in part,
with the referee's recommendations. We accept the referee's factual findings based on the parties' stipulation. We agree 2 No. 2018AP237-D
with the referee that one of the charged counts of misconduct
should be dismissed, but we reach this conclusion for reasons
different from those stated by the referee. We agree with the
referee that Attorney Drach committed the remaining counts of
misconduct, and that this misconduct merits a public reprimand.
We hold that Attorney Drach should pay the full costs of this
matter, and we impose restitution in the stipulated amount of
$1,540.
¶5 The OLR initiated this disciplinary proceeding with
the filing of a three-count complaint in February 2018, which it
later amended in a four-count complaint in June 2018. Attorney
Drach denied any professional misconduct in his answers to both
the original and amended complaints.
¶6 The case proceeded through discovery and was set for a
disciplinary hearing in April 2019. About two weeks before the
scheduled hearing, Attorney Drach entered into a stipulation in
which he admitted all four misconduct charges. He also agreed
to pay——and in fact later paid——$1,540 in restitution to one of the aggrieved clients.
¶7 The parties requested, and the referee held, an
evidentiary hearing regarding the appropriate level of
discipline. Attorney Drach appeared as the only witness. In
post-hearing briefing, the OLR asked for a public reprimand, and
Attorney Drach asked for a private reprimand.
¶8 In August 2019, the referee filed his report. He
accepted the parties' stipulation, which set forth the following underlying facts. 3 No. 2018AP237-D
¶9 Attorney Drach has practiced law in Wisconsin since
1975. He operates Drach Elder Law Center LLC (hereafter, the
"Drach firm") in Wausau, WI.
¶10 Attorney Drach has a disciplinary history. In 2002,
he received a public reprimand for failing to consult with a
client as to the objectives of representation; failing to keep a
client reasonably informed about the status of a matter, to
promptly comply with the client's reasonable requests for
information, and to explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation; and representing a client when
that representation conflicted with his responsibilities to
another client. See Public Reprimand of Jeffery J. Drach, No.
2002-9 (electronic copy available at https://compendium.
wicourts.gov/app/raw/000962.html). In 2008, Attorney Drach
received a private reprimand for failing to adequately supervise
the conduct of a non-lawyer employee, which in turn led to
conduct by the non-lawyer employee that would have constituted professional incompetence had Attorney Drach engaged in the
conduct himself. Private Reprimand No. 2008-26 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
002152.html).
¶11 The instant case involves Attorney Drach's misconduct
in two client matters, described below.
Mr. and Mrs. P. and their adult son, R.
¶12 The first client matter at issue involved a family comprised of an elderly couple, Mr. and Mrs. P., and their adult 4 No. 2018AP237-D
son, R. R. had always lived with Mr. and Mrs. P.; he never
lived independently. Mr. P.'s health was declining.
¶13 In 2011, Mr. and Mrs. P. entered into three flat fee
agreements with the Drach firm:
a "Life Planning Agreement," for $975, which Mr. and
Mrs. P. paid in full in February 2011;
an "Asset Preservation Planning Agreement," for $5,975,
which Mr. and Mrs. P. paid in full in May 2011; and
an "Implementation of the Asset Preservation Plan
Agreement," for $2,275, which Mr. and Mrs. P. paid in
full in May 2011.
¶14 In August 2011, the Drach firm sent Mr. and Mrs. P. an
itemized bill, labeled "Life Planning," for $975. There were
several problems with this bill. First, Mr. and Mrs. P. had
already paid a flat fee for "life planning" services (e.g.,
drafting powers of attorney and living wills). Second, although
the bill was labeled as concerning "Life Planning," the actual
itemized work on the bill did not concern life planning, but rather related to transferring assets to a trust——an area of
work that was not covered by any of the engagement agreements
between Attorney Drach and Mr. and Mrs. P. Third, Attorney
Drach's and his staff member's hourly rates were not set forth
in the bill. Mr. and Mrs. P. nevertheless paid the bill in
full.
¶15 In June 2014, the couple's adult son, R., called
Attorney Drach's firm with news that Mrs. P. was in rapidly failing health. This development forced revisions to the estate 5 No. 2018AP237-D
plan that Attorney Drach had prepared for Mr. and Mrs. P., which
was based on the assumption that Mr. P. would predecease Mrs. P.
Within a few days of R.'s phone call, Attorney Drach's staff
went to Mrs. P.'s hospice bed with revised estate planning
documents. But Mrs. P. had already lost consciousness, and she
died shortly thereafter.
¶16 In the months following Mrs. P.'s death, Attorney
Drach worked on asset preservation and trust administration
matters on Mr. P.'s behalf. Attorney Drach did not have a
written hourly fee agreement with Mr. and Mrs. P. for either
category of work. During this time period, the Drach firm
issued bills to Mr. P. totaling $6,632.40 for asset preservation
work and $4,537.22 for trust administration work.
¶17 In November 2014, R., in his capacity as power of
attorney for his father, Mr. P., signed a flat fee agreement for
the Drach firm to help prepare a medical assistance application
for his father. The Drach firm charged a flat fee of $6,500
plus out-of-pocket costs. The following month, the Drach firm withdrew this amount from client funds held in trust.
¶18 Despite having a flat fee agreement in place for
medical assistance application work, the Drach firm sent Mr. P.
a bill in March 2015 with medical-assistance-related billing
entries for eight dates in November and December 2014. These
entries, which totaled $1,540, appeared on a bill related to the
Drach firm's asset preservation work.
¶19 On November 12, 2014, the Drach firm obtained R.'s permission by telephone to pay $11,169.62 for services rendered 6 No. 2018AP237-D
between June 24, 2014 and October 31, 2014. The Drach firm
withdrew this amount from client funds held in trust one day
later, on November 13, 2014. The Drach firm did not provide the
required notice in writing five days in advance of the trust
fund withdrawal. Nor did the Drach firm provide a written trust
account balance to R. in November 2014, when the legal bill was
paid.
¶20 On December 16, 2014, the Drach firm again called R.
to obtain permission to pay an additional $11,945 in legal fees
from the trust account. The Drach firm explained in a December
18, 2014 letter that this $11,945 amount represented fees for
trust administration work, asset preservation work, and the
$6,500 flat fee for work on Mr. P.'s medical assistance
application. On December 23, 2014, the Drach firm withdrew
$11,945 from client funds held in trust. The firm did not
provide R. with an accurate accounting in writing of what was
being paid from the trust account, nor was he notified when the
funds would be withdrawn from trust. Of the fees listed in the December 18, 2014 letter, $2,322 was for asset preservation work
that had not yet been done; the firm had estimated the amount of
fees needed to finish the asset preservation work by multiplying
the expected amount of time the Drach firm's attorneys and staff
planned to work on the file by his/her hourly rate. R. was
never informed that a portion of the bill was based on estimated
future fees.
¶21 As a result of these actions, Attorney Drach stipulated to the following counts of misconduct: 7 No. 2018AP237-D
Count One: By billing medical assistance application work as hourly charges within asset preservation billings when there was an existing flat fee agreement, Attorney Drach violated SCR 20:1.5(a).1
Count Two: By charging an additional $975 for life planning work when the work was actually for the transferring of assets without disclosing to Mr. and Mrs. P. the basis or rate of the hourly fees, by failing to enter into a written fee agreement for asset preservation work in 2014, and by failing to enter into a written fee agreement for representation relating to trust administration, in each instance, Attorney Drach violated SCR 20:1.5(b)(l).2
1 SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent. 2 SCR 20:1.5(b)(l) provides: 8 No. 2018AP237-D
Count Three: By failing to provide R. with the anticipated date of withdrawal of funds from trust to pay fees in November and December 2014, by failing to provide a written trust account balance in November 2014, by failing to provide an accurate written trust account balance in December 2014, and by estimating future non-contingent fees and withdrawing them from the trust account before they were earned in December 2014, in each instance, Attorney Drach violated former SCR 20:1.15(g).3
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. 3 Former SCR 20:1.15(g), effective through June 30, 2016, provided:
(1) Notice to client. At least 5 business days before the date on which a disbursement is made from a trust account for the purpose of paying fees, with the exception of contingent fees or fees paid pursuant to court order, the lawyer shall transmit to the client in writing all of the following:
a. An itemized bill or other accounting showing the services rendered;
b. Notice of the amount owed and the anticipated date of the withdrawal; and
c. A statement of the balance of the client's funds in the lawyer trust account after the withdrawal.
9 No. 2018AP237-D
G.L.
¶22 The second client matter at issue involved Attorney
Drach's representation of G.L. G.L. was an elderly woman with
two adult daughters, J.T. and J.E., and a husband with
Alzheimer's disease. G.L.'s daughter, J.T., worked at the Drach
firm for two years, from January 2007 to February 2009, doing
typing and bookkeeping work.
¶23 In 2007, G.L. signed a flat fee agreement with the
Drach firm for Estate Planning/Life Planning, Asset Preservation
Planning, and Implementation of the Asset Preservation Plan.
The flat fee was $12,000, plus out-of-pocket costs. Attorney
Drach completed the work encompassed in the flat fee agreement
in 2010.
¶24 In November 2014, G.L.'s daughter, J.T., became
gravely ill. J.T. was G.L.'s power of attorney. In that
capacity, J.T. requested that Attorney Drach review G.L.'s
existing documents to ensure that G.L.'s affairs were in order.
¶25 Attorney Drach met with J.T. at her home on November 10, 2014. He did not have J.T. sign any agreement setting forth
the nature of the legal work that he was going to perform, nor
did he discuss with her whether the legal work would be done on
a flat fee or hourly basis. J.T. passed away several days after
Attorney Drach met with her.
¶26 In February 2015, Attorney Drach sent G.L. a bill for
additional estate planning work in the amount of $7,659. He
issued this bill without a written hourly fee agreement in place. The bill did not itemize the time spent by each attorney 10 No. 2018AP237-D
or staff member or show the hourly rates for Attorney Drach or
his staff. Attorney Drach had never discussed with J.T. or G.L.
the fact that his and his staff's hourly rates had increased
since he had last done trust administration work on G.L.'s
behalf several years earlier.
¶27 In late 2014, G.L. retained a different lawyer to
represent her with respect to her estate planning and trust
administration matters. On March 30, 2015, Attorney Drach
provided G.L.'s new counsel with G.L.'s $7,659 bill, which,
again, did not include an hourly rate breakdown nor a detailed
itemization of the time spent by each attorney or staff member.
On April 24, 2015, pursuant to a request by G.L.'s new counsel,
Attorney Drach provided counsel with a detailed billing
statement that included an itemization of work done on the file
and disclosed the current hourly rates for Attorney Drach and
his staff.
¶28 As a result of these actions, Attorney Drach
stipulated to the following counts of misconduct:
Count Four: By doing legal work on G.L.'s file in 2014 and 2015 for estate planning without a written fee agreement and by failing to communicate in writing any changes to the basis or rate of the hourly fees related to the trust administration legal work, in each instance, Attorney Drach violated SCR 20:1.5(b)(1). ¶29 As mentioned above, the referee filed his report after
holding a hearing on sanctions. Despite the parties'
stipulation to all four counts of misconduct, the referee recommended dismissal of stipulated Count One, which, again,
11 No. 2018AP237-D
alleged that by billing Mr. and Mrs. P. for medical assistance
application work as hourly charges within asset preservation
billings when there was an existing flat fee agreement for
medical assistance application work, Attorney Drach violated
SCR 20:1.5(a) (forbidding lawyer from making an agreement for,
charging, or collecting "an unreasonable fee or an unreasonable
amount for expenses"). The referee reasoned that, although
Attorney Drach billed in excess of the amount set by the flat
fee agreement for medical assistance application work ($6,500),
there was no testimony or other evidence in the record to show
that the total amount actually billed (the $6,500 flat fee, plus
$1,540 in hourly billings, equaling $8,040) was an unreasonable
amount. Thus, in the referee's view, there was no violation of
SCR 20:1.5(a). "[F]or a violation of SCR 20:1.5(a) to lie, it
must be shown that the attorney fees charges were too high," the
referee wrote. Without such a showing, Attorney Drach's billing
practices could only be a breach of the fee agreement, not
misconduct. ¶30 As to the remaining counts, the referee determined
that the stipulated facts supported legal conclusions that
Attorney Drach had engaged in the misconduct alleged in Counts
Two, Three, and Four.
¶31 Turning to the issue of appropriate discipline, the
referee found that Attorney Drach's overall course of conduct
featured more aggravating factors than mitigating factors. On
the aggravating side, the referee noted that Attorney Drach's prior disciplinary cases, from 2002 and 2008, are somewhat 12 No. 2018AP237-D
remote from today, but much less remote from the time the
offenses at issue here were committed. Attorney Drach committed
multiple offenses. The victims were particularly vulnerable.
Attorney Drach had trouble seeing, or acknowledging, that what
he did was wrong, and he tended to blame his employees for his
ethical troubles. His substantial experience in the law (more
than 40 years) should have counseled against his actions,
particularly his tendency to forego written engagement
agreements. On the mitigating side, he cooperated with the OLR.
He also agreed to pay $1,540 in restitution to the P. family.
¶32 The referee further recommended that Attorney Drach
should pay full costs, as well as restitution beyond the
stipulated amount. Specifically, the referee recommended a
restitution award of $2,744, comprised of the stipulated $1,540
to R., plus a payment to G.L. of $1,204, which equals the
difference between the amount Attorney Drach actually billed her
at his undisclosed higher rates and the amount he would have
billed her at the lower rates at which he had billed her years earlier. The referee further recommended that Attorney Drach
pay interest on these restitution amounts.
¶33 As mentioned above, both Attorney Drach and the OLR
have appealed from the referee's report. We turn first to the
arguments in Attorney Drach's appeal.
¶34 Attorney Drach argues that the referee correctly
recommended the dismissal of Count One, which, again, alleged
that by billing Mr. and Mrs. P. for medical assistance application work as hourly charges within asset preservation 13 No. 2018AP237-D
SCR 20:1.5(a). Although Attorney Drach stipulated to the
misconduct alleged in Count One, he insists on appeal that the
facts underlying this count show no more than clerical errors,
and that in any event, there is no evidence to show that the
cumulative amount he charged for his services was unreasonable.
¶35 Attorney Drach does not challenge the referee's
determinations of misconduct on Counts Two, Three, and Four, but
he insists his misconduct should result in the imposition of a
private reprimand——not a public reprimand, as the referee
recommended. He argues that that his misconduct amounted to
nothing more than "technical" violations of our ethical rules,
complained about by "disgruntled family members." He claims
that his failures to enter into fee agreements with Mr. and Mrs.
P. and with G.L. were acts of "care and compassion" because it
would have been inappropriate to have conversations about fees
with R. while his mother was dying, or with G.L.'s power of attorney, J.T., while J.T. was gravely ill. Attorney Drach also
claims that that the referee failed to appropriately acknowledge
certain mitigating factors, namely: (1) his cooperation with
the OLR; (2) the visible place he holds in the legal community;
and (3) the purported fact that, if he is publicly reprimanded,
he may be forced to resign certain professional designations or
positions. As for his previous disciplinary problems, he claims
they are too old, and too distinguishable, to have relevance here. 14 No. 2018AP237-D
¶36 Turning to restitution and costs, Attorney Drach
argues that the referee erred in recommending restitution
payments that the OLR never sought. Attorney Drach also objects
to the imposition of full costs. He suggests that a reduction
in costs——50 percent, his counsel proposed at oral argument——
would be appropriate. He claims that "at the time that OLR
initiated its investigation, it alleged that Attorney Drach had
engaged in far more serious and pervasive misconduct that what
was ultimately alleged." According to Attorney Drach, this
extensive investigation, combined with the lengthy litigation
involved in this case, show that the OLR "has pursued an
unjustified campaign against [him]. In the interest of
fairness, the Court should adjust the costs to reflect a more
realistic prosecution of the case."
¶37 In its appellate briefing, the OLR argues that the
referee's recommendation of a public reprimand is appropriate
and supported by the evidence. As an initial matter, the OLR
disagrees with the referee's recommendation that this court should dismiss Count One. It submits that the referee's belief
that the existence of an SCR 20:1.5(a) violation depends on the
reasonableness of the amount ultimately charged the client is
inconsistent with the language of the rule. The rule provides
that the amount of fees involved is simply one of the eight
factors set forth in the rule. See SCR 20:1.5(a)(4). There is
no language in the rule that states that the entire fee must be
found to be unreasonable in order to make a finding of an SCR 20:1.5(a) rule violation. 15 No. 2018AP237-D
¶38 The OLR also argues that Attorney Drach's insistence
that it would have been improper to discuss fees with his
clients at or near the time of a family member's serious illness
or death displays a disregard of the ethical rule requiring
written fee agreements. The OLR points out that many lawyers
regularly deal with families in crisis, especially in personal
injury, wrongful death, and probate-type cases, and yet a
written communication about what a lawyer is going to charge a
client in this situation is mandated by the ethical rules. The
OLR further notes that in situations where raising the topic of
fees may come across as insensitive, the rules allow some
flexibility, as the communication in writing can be "before or
within a reasonable time after commencing the representation."
SCR 20:1.5(b)(1).
¶39 The OLR also argues that Attorney Drach's previous
disciplinary matters are pertinent here. His 2008 private
reprimand, for example, was based on his general failure to
supervise his office staff in the execution of estate planning documents. The instant case reveals a similar pattern of
misconduct; i.e., a failure to put protocols in place to ensure
that matters are being properly handled within his office.
¶40 Turning to the issue of restitution and costs, the OLR
does not seek restitution beyond the stipulated amount of
$1,540. The OLR insists, however, that costs should not be
reduced. The OLR reports that while it is true that it
investigated matters and charges that were ultimately not pursued in the disciplinary complaint, it did not include any 16 No. 2018AP237-D
costs attributable to time spent by investigators in the costs
reported in this case. Moreover, the OLR notes, Attorney Drach
stipulated to all four of the misconduct counts alleged by the
OLR. Attorney Drach failed to explain how or why the OLR acted
inappropriately in pursing this matter.
¶41 The matter is now before this court to review the
referee's report and recommendation, informed by the parties'
arguments made in their briefs and at oral argument. When
reviewing a referee's report and recommendation, we affirm the
referee's findings of fact unless they are clearly erroneous,
but we review the referee's conclusions of law on a de novo
basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI
126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the
appropriate level of discipline to impose given the particular
facts of each case, independent of the referee's recommendation,
but benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶42 Guided by these standards, we conclude that Attorney Drach committed the rule violations alleged by the OLR in Counts
Two, Three, and Four——just as the OLR complaint alleged, the
parties stipulated, and the referee determined. By his
undisputed failure to enter into written fee agreements with his
clients, his failure to communicate to G.L. in writing the
changes to his firm's hourly rates, and his failure to provide
Mr. and Mrs. P.'s adult son, R., with timely notices of the
withdrawal of funds from trust and an accurate accounting of
17 No. 2018AP237-D
trust fund balances, Attorney Drach violated SCR 20:1.5(b)(1)
and SCR 20:1.15(g).
¶43 We agree with the referee that Attorney Drach did not
commit the misconduct alleged in Count One, but for different
reasons from those expressed by the referee. We disagree with
the referee's conclusion that it is ethically permissible for a
lawyer who has agreed to a flat fee to demand that the client
make payments beyond that amount for legal work within the scope
of the agreement, so long as the total amount billed is not
shown to be excessively high. Clients enter flat fee agreements
with the expectation that the flat fee is a reasonable
calculation of all of the work to be done. We decline to hold
that SCR 20:1.5(a), which mandates reasonable fees, permits a
lawyer to unilaterally switch from a flat fee agreement to a
flat-fee-plus-hourly-fee arrangement for work covered by the
flat fee agreement. Billing a client using such an unagreed-to
and inherently contradictory fee structure hardly seems
"reasonable" for purposes of SCR 20:1.5(a), regardless of the total amount billed.
¶44 We are persuaded, however, by Attorney Drach's
argument that he did not engage in this kind of inappropriate
billing practice here. Rather, it appears undisputed that
Attorney Drach's clerical staff mistakenly entered, on a single
bill in an hourly billing matter, time entries for eight dates
concerning work that should have been billed as part of a flat
fee billing agreement. When asked at the sanctions hearing in
18 No. 2018AP237-D
this matter why he did not correct these errors while reviewing
the bill, Attorney Drach testified:
[W]hat I usually review for is typos and grammar. I review for appropriate descriptions in the narrative. This was done at a time when we were scrambling to make sure that [Mr. P.] got eligible [for Medicaid]. So I think I reviewed this, but . . . I obviously didn't pick up on the fact that there were some medical assistance entries there. Attorney Drach agreed to reimburse the P. family for the amounts
billed in the mistaken time entries (a total of $1,540), and he
has, in fact, done so.
¶45 On these particular facts, we do not find an
SCR 20:1.5(a) violation. While an attorney's fee must
unquestionably be reasonable, we decline to hold that the
issuance of a single bill containing some inadvertently included
time entries rises to the level of misconduct contemplated by
SCR 20:1.5(a).
¶46 We are left, then, with determining the appropriate
sanction for the misconduct alleged in Counts Two, Three, and
Four. In making this determination, we reject Attorney Drach's
insistence that this court should view his failure to enter
written fee agreements with his clients as an act of compassion,
not misconduct. As explained above, Attorney Drach argues that
he was loathe to discuss fee arrangements with his clients in
times of illness or recent family loss. That is not a winning
excuse for a lawyer's failure to get written fee agreements in
place——especially for an elder law lawyer such as Attorney Drach. Illness, death, and the family turmoil associated with
19 No. 2018AP237-D
these events are integral parts of Attorney Drach's practice.
They do not give him an excuse to bypass explicit ethical
requirements. To the contrary, the distressing circumstances in
which his clients often find themselves make it only more
important that Attorney Drach have clear, written fee agreements
in place——as did not happen here.
¶47 We note, too, that this is the third time that
Attorney Drach has been the subject of a disciplinary action.
Given that he has already been privately and publicly
reprimanded, one could argue that the next logical step is a
suspension. See In re Disciplinary Proceedings Against
Gorokhovsky, 2013 WI 100, ¶26, 351 Wis. 2d 408, 840 N.W.2d 126
("Now that we already have privately and publicly reprimanded
Attorney Gorokhovsky, imposing yet another reprimand would
unduly depreciate the seriousness of his misconduct and the need
to deter him from continued unprofessional behavior.") But a
suspension seems too harsh; while Attorney Drach has engaged in
unprofessional billing practices, there is no evidence of deceit or any course of conduct designed to collect fees for work not
performed.
¶48 A public reprimand, however, fits comfortably within
our case law. See, e.g., Public Reprimand of James T. Runyon,
No. 2017-5 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002958.html) (imposing
public reprimand on previously disciplined lawyer for, among
other things, failing to provide a client with a written communication explaining the representation's scope or required 20 No. 2018AP237-D
fee information, failing to notify the client before removing
fees from his trust account, failing to communicate his fee in
writing, and withdrawing an advanced fee before it was earned);
see also Public Reprimand of Jerry T. Delcore, No. 2017-2
(electronic copy available at https://compendium.wicourts.gov/
app/raw/002929.html) (imposing public reprimand on previously
disciplined lawyer for providing a client with inconsistent and
confusing information regarding the rate and basis of her fees,
and for failing to provide the client with notices and
accountings required under former SCR 20:1.15(b)(4m)(a) and (b)
for advanced fee payments).
¶49 Although Attorney Drach claims that a public reprimand
will hurt his standing in the elder law community, we have
previously made clear that a possible detrimental impact on an
attorney's ability to practice is not an appropriate factor in
establishing a level of discipline. See In re Disciplinary
Proceedings Against Lamb, 2011 WI 101, ¶31, 338 Wis. 2d 1, 806
N.W.2d 439. ¶50 Finally, the court must consider the issues of
restitution and costs. At oral argument, the OLR made clear
that it does not now, and did not previously, seek restitution
beyond the amount that Attorney Drach has already paid ($1,540).
We accede to the OLR's judgment on this issue.
¶51 As to costs, we reject Attorney Drach's request for a
50 percent reduction in awardable costs as undeveloped. In
proceedings before the referee, Attorney Drach objected to the OLR's requested costs in a conclusory fashion, and did not state 21 No. 2018AP237-D
what he considered to be a reasonable amount of costs. See
SCR 22.24(2).4 His request for a 50 percent reduction came only
at oral argument, unsupported by any explanation as to why this
figure is reasonable beyond a claim that the OLR engaged in
overbroad litigation against him——a perplexing argument given
his stipulation to all of the counts that the OLR charged.
Under SCR 22.24(1m), the court's general policy is that upon a
4 SCR 22.24(2) provides:
In seeking the assessment of costs by the supreme court, the director shall file in the court, with a copy to the referee and the respondent, a statement of costs within 20 days after the filing of the referee's report or a SCR 22.12 or 22.34(10) stipulation, together with a recommendation regarding the costs to be assessed against the respondent. If an appeal of the referee's report is filed or the supreme court orders briefs to be filed in response to the referee's report, a supplemental statement of costs and recommendation regarding the assessment of costs shall be filed within 20 days of the date of oral argument or, if no oral argument is held, the filing date of the last brief on appeal. The recommendation should explain why the particular amount of costs is being sought. The respondent may file an objection to the statement of costs and recommendation within 21 days after service of the statement of costs. A respondent who objects to a statement of costs must explain, with specificity, the reasons for the objection and must state what he or she considers to be a reasonable amount of costs. The objection may include relevant supporting documentation. The office of lawyer regulation may reply within 11 days of receiving the objection. In proceeding before a referee the referee shall make a recommendation to the court regarding costs. The referee should explain the recommendation addressing the factors set forth in SCR 22.24 (lm). The referee shall consider the submissions of the parties and the record in the proceeding. No further discovery or hearing is authorized.
22 No. 2018AP237-D
finding of misconduct it is appropriate to impose all costs upon
the respondent. The court may, in the exercise of its
discretion, reduce the amount of costs, but we find no
justification in this case for a deviation from the court's
general policy.
¶52 IT IS ORDERED that Jeffery J. Drach is publicly
reprimanded for his professional misconduct.
¶53 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Jeffery J. Drach shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$26,449.93 as of November 9, 2020.
¶54 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this decision.
¶55 ANN WALSH BRADLEY, J., did not participate.
23 No. 2018AP237-D