Office of Lawyer Regulation v. Nunnery

2011 WI 39, 798 N.W.2d 239, 334 Wis. 2d 1, 2011 Wisc. LEXIS 330
CourtWisconsin Supreme Court
DecidedJune 7, 2011
DocketNo. 2009AP773-D
StatusPublished
Cited by4 cases

This text of 2011 WI 39 (Office of Lawyer Regulation v. Nunnery) 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
Office of Lawyer Regulation v. Nunnery, 2011 WI 39, 798 N.W.2d 239, 334 Wis. 2d 1, 2011 Wisc. LEXIS 330 (Wis. 2011).

Opinion

PER CURIAM.

¶ 1. We review Referee Stanley F. Hack's report recommending that Attorney Willie J. Nunnery's license to practice law in Wisconsin be revoked and that he be required to pay the costs of this disciplinary proceeding which total $18,461.98 as of October 6, 2010. After fully reviewing the matter we agree that Attorney Nunnery committed numerous acts of professional misconduct as alleged in the 17 counts of the disciplinary complaint filed by the Office of Lawyer [7]*7Regulation (OLR). We agree that revocation of his license to practice law is appropriate. We further order that he pay the full costs of this disciplinary proceeding.

¶ 2. Attorney Nunnery was admitted to the practice of law in Wisconsin in January 1976. He practices in Madison, Wisconsin. He has a lengthy disciplinary history. On January 4, 2007, this court suspended Attorney Nunnery's license for two months, effective February 6, 2007, for misconduct consisting of one count of failing to reduce a contingency agreement to writing; one count of failing to hold a client's property in trust; two counts of failing to act with reasonable diligence and promptness; three counts of failing to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information; two counts of failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; one count of knowingly advancing a claim that was unwarranted under existing law; and two counts of failing to provide competent representation to a client. In re Disciplinary Proceedings Against Nunnery, 2007 WI 1, 298 Wis. 2d 289, 725 N.W.2d 613.

¶ 3. On July 21, 2009, this court suspended Attorney Nunnery's license for three years for misconduct he committed in two separate disciplinary matters, effective August 24, 2009, as follows: six months in the first matter and two and one-half years in the second matter. In those matters Attorney Nunnery failed to communicate the basis or rate of his fee; failed to keep a client reasonably informed about the status of a matter and promptly comply with requests for information; failed to explain a matter to the extent necessary to permit the client to make informed decisions; failed to cooperate with OLR's investigation; provided finan[8]*8cial assistance to a client in connection with pending litigation; failed to abide by the client's decisions concerning the objectives of representation; failed to diligently pursue a client's matter; knowingly made a false statement to a tribunal; engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; failed to provide competent representation to a client; failed, upon termination of representation, to take steps to the extent reasonably practicable to protect a client's interests; failed to maintain complete trust account records for at least six years after termination of representation; failed to maintain individual client ledgers; and knowingly disobeyed an obligation under the rules of a tribunal. In re Disciplinary Proceedings Against Nunnery, 2009 WI 89, 320 Wis. 2d 422, 769 N.W.2d 858.

¶ 4. The OLR filed a complaint on March 25, 2009, alleging 17 counts of professional misconduct committed in three client matters. There were numerous pretrial and scheduling conferences. Attorney Nunnery requested an adjournment because he wanted to consult with counsel on his defense. The request was granted. The proceedings before the referee were completed on July 14, 2010. At the request of the referee the parties filed briefs. Following the filing of the referee's report and recommendation Attorney Nunnery sought to appeal but his appeal was dismissed by this court as untimely. The court, on its own motion, directed the parties to file briefs pursuant to SCR 22.17(2).1 The [9]*9matter is now before this court for consideration. The primary issues involve whether the referee erred in permitting certain witness testimony to be taken by telephone over Attorney Nunnery's objection and whether the sanction of revocation is appropriate.

¶ 5. When reviewing a report and recommendation in an attorney disciplinary proceeding, we affirm a referee's findings of fact unless they are found to be clearly erroneous. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶ 5, 305 Wis. 2d 71, 740 N.W.2d 125. We review the referee's conclusions of law, however, on a de novo basis. Id. We determine the appropriate level of discipline given the particular facts of each case, independent of the referee's recommendation, but benefiting from it. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.

I. D.B. MATTER

¶ 6. On February 1, 2005, D.F. and M.F. hired Attorney Nunnery to represent their son, D.B., an insulin dependent diabetic, in connection with a possible claim for inadequate medical care against a correctional institution in Georgia where D.B. was incarcerated. Attorney Nunnery agreed to accept the representation for a $3,500 fee, out-of-pocket costs, plus a 40 percent contingent fee. The fee agreement provided that, "The scope of [Attorney Nunnery's] representation will cover this matter through the United States Federal District Court OR a state circuit [10]*10court. . . ." Attorney Nunnery did not inform his clients they would have to pay any additional money upon the filing of a federal lawsuit. The clients would not have hired Attorney Nunnery if they had known it would cost them more money. After performing a case evaluation, Attorney Nunnery informed the clients he believed D.B. had a good case. Attorney Nunnery obtained D.B.'s medical records at a cost of $117.21. Attorney Nunnery then informed the clients that continued representation would require an additional $15,000. Attorney Nunnery informed D.B.'s mother that if she did not give him the $15,000 he could no longer represent D.B. Attorney Nunnery also informed her that the statute of limitations would expire on November 30, 2005.

¶ 7. The clients did not have the money to pay Attorney Nunnery the $15,000. By correspondence dated August 18, 2005, Attorney Nunnery advised D.B. his parents had made "no arrangements" for Attorney Nunnery to continue representing D.B. and he would no longer represent D.B. Attorney Nunnery incorrectly informed D.B. that his claims were subject to a one-year statute of limitations and must be filed by November 30, 2005. In fact, D.B.'s federal claims were subject to a two-year statute of limitations that expired in early January 2007.

¶ 8. Other than meeting with D.B., obtaining a police report, obtaining medical records, and communicating with D.B.'s criminal attorney, the clients were not aware of any other work Attorney Nunnery had performed on D.B.'s case. The clients asked for their money back, but Attorney Nunnery did not return any of the retainer and did not provide the clients with an itemization of the work he performed on D.B.'s case.

[11]*11¶ 9. On August 22, 2007, OLR requested information and documentation relating to this matter. Attorney Nunnery did not respond. On September 21, 2007, OLR again wrote to Attorney Nunnery. Attorney Nunnery provided a belated and inadequate handwritten response. On October 9, 2007, OLR wrote to Attorney Nunnery requesting additional information but Attorney Nunnery did not respond. Attorney Nunnery eventually denied these charges in his answer to the OLR's complaint.

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Bluebook (online)
2011 WI 39, 798 N.W.2d 239, 334 Wis. 2d 1, 2011 Wisc. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-lawyer-regulation-v-nunnery-wis-2011.