Office of Lawyer Regulation v. Richard W. Voss

• Court: Wisconsin Supreme Court
• Decided: December 8, 2015
• Docket: 2014AP002086-D
• Status: Published

Opinion

2015 WI 104

SUPREME COURT OF WISCONSIN CASE NO.: 2014AP2086-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Richard W. Voss, Attorney at Law:

Office of Lawyer Regulation, Complainant, v. Richard W. Voss, Respondent. DISCIPLINARY PROCEEDINGS AGAINST VOSS

OPINION FILED: December 8, 2015 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING:

ATTORNEYS: 2015 WI 104 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP2086-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings Against Richard W. Voss, Attorney at Law:

Office of Lawyer Regulation, FILED Complainant, DEC 8, 2015 v. Diane M. Fremgen Clerk of Supreme Court Richard W. Voss,

Respondent.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. We review a stipulation filed by

Richard W. Voss and the Office of Lawyer Regulation (OLR),

pursuant to Supreme Court Rule (SCR) 22.12,1 which sets forth

1 SCR 22.12 (Stipulation) provides:

(1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee, in which case the supreme (continued) No. 2014AP2086-D

findings of fact and conclusions of law regarding Attorney

Voss's six counts of professional misconduct. Attorney Voss is

already under suspension pursuant to the 18-month suspension

ordered in In re Disciplinary Proceedings Against Voss,

2014 WI 75, 356 Wis. 2d 382, 850 N.W.2d 190, which runs until

February 22, 2016.

¶2 The parties' stipulation did not contain an agreement

regarding the appropriate level of discipline to be imposed.

court may approve the stipulation, reject the stipulation, or direct the parties to consider specific modifications to the stipulation.

(2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.

(3) If the supreme court rejects a stipulation, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.

(3m) If the supreme court directs the parties to consider specific modifications to the stipulation, the parties may, within 20 days of the date of the order, file a revised stipulation, in which case the supreme court may approve the revised stipulation, adopt the stipulated facts and conclusions of law, and impose the stipulated discipline. If the parties do not file a revised stipulation within 20 days of the date of the order, a referee shall be appointed and the matter shall proceed as a complaint filed without a stipulation.

(4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

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The parties agreed to brief the issue of sanctions before the

referee, James R. Erickson.

¶3 The referee accepted the stipulation and found, based

on the stipulation, that the stipulated facts supported a

conclusion of misconduct on all six counts. The referee

recommended that the court suspend Attorney Voss for a 60-day

period, consecutive to the 18-month suspension Attorney Voss is

currently serving. The referee also recommended that the court

assess the OLR's full costs against Attorney Voss, which total

$2,801.98 as of July 30, 2015.

¶4 Because no appeal has been filed from the referee's

report and recommendation, we review the matter pursuant to

SCR 22.17(2).2 We adopt the findings of fact and conclusions of

law to which the parties have stipulated and as adopted by the

referee. We agree that the seriousness of Attorney Voss's

misconduct warrants a 60-day suspension of his license to

practice law, consecutive to the 18-month suspension he is

currently serving, together with costs. ¶5 Attorney Voss was admitted to the practice of law in

Wisconsin in 1976.

2 SCR 22.17(2) provides:

If no appeal is filed timely, the supreme court shall review the referee's report; adopt, reject or modify the referee's findings and conclusions or remand the matter to the referee for additional findings; and determine and impose appropriate discipline. The court, on its own motion, may order the parties to file briefs in the matter.

3 No. 2014AP2086-D

¶6 Attorney Voss has been disciplined previously for

misconduct. In 2004, Attorney Voss was privately reprimanded

for failing to provide competent representation and failing to

keep a client reasonably informed. Private Reprimand

No. 2004-24.3 In 2006, Attorney Voss received a public reprimand

for various trust account violations. Public Reprimand of

Richard W. Voss, 2006-7. In 2014, Attorney Voss received an

18-month suspension for his conduct as the court-appointed

guardian of the person and estate of an individual suffering

from mental illness. This court determined that Attorney Voss

committed 11 counts of misconduct by, among other things,

converting at least $48,791.73 of his client's funds either for

his own use or to cover expenditures for other client matters,

committing various trust account violations, and making

misrepresentations to the circuit court regarding his client's

assets. Voss, 356 Wis. 2d 382.

¶7 This disciplinary matter involves six counts of

misconduct, four of which concern Attorney Voss's work in bankruptcy matters, and two of which concern Attorney Voss's

trust account practices. We take the following facts from the

parties' stipulation.

3 The OLR's complaint and the parties' stipulation both cite Private Reprimand No. 2004-25, but that matter involved criminal conduct by a lawyer, which clearly does not fit the description of Attorney Voss's misconduct. Private Reprimand No. 2004-24 involved violations of SCRs 20:1.1 and 20:1.4(a).

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¶8 Attorney Voss was hired to file bankruptcies for his

clients, J.M. and L.R. In both cases, before doing any work,

Attorney Voss had the client pay approximately $500 in attorney

fees and approximately $300 in filing fees. Attorney Voss

placed these funds into his client trust account. It is

undisputed that while the funds remained in trust, they remained

an asset of the client.

¶9 Attorney Voss, or his staff under his direction, told

J.M. and L.R. that the firm would file a fee waiver application

with the appropriate United States Bankruptcy Court. Attorney

Voss's office would prepare the fee waiver application, along

with the bankruptcy petition. When drafting these documents,

Attorney Voss failed to disclose to the bankruptcy court that

the filing fee had already been paid by the client and that

Attorney Voss was holding the funds in trust.

¶10 Attorney Voss, or his staff under his direction, had

J.M. and L.R. sign the bankruptcy documents under penalty of

perjury. In signing the bankruptcy documents, J.M. and L.R. verified that the documents were accurate, including a statement

that they could not afford to pay the filing fee, and including

an asset disclosure that did not disclose the filing fee

payments held in Attorney Voss's firm's trust account.

¶11 In the J.M. bankruptcy case, the bankruptcy court

denied the filing fee waiver application on September 25, 2013.

The court ordered that J.M. pay the filing fee in installments

beginning on October 25, 2013. Neither Attorney Voss nor his staff contacted J.M. to let her know of the denial of her filing 5 No. 2014AP2086-D

fee waiver application. J.M. first learned that the bankruptcy

court had denied her waiver application and that her filing fee

remained unpaid at the meeting of creditors on October 17, 2013.

J.M. was upset upon learning this information because she had

paid the filing fee to Attorney Voss months earlier and had not

been told of the denial of her filing fee waiver application.

¶12 On October 25, 2013——the date the first installment of

J.M.'s filing fee was due——Attorney Voss's secretary paid the

filing fee in full. Before this date, Attorney Voss's secretary

had experienced difficulties determining from the bankruptcy

court's website how much was owed as a filing fee and how to pay

it. Because Attorney Voss's secretary did not inform him of her

difficulties in paying the filing fee, Attorney Voss was unaware

of the problems until he received a letter from the OLR about

the matter.

¶13 In the L.R. bankruptcy case, the bankruptcy court

approved L.R.'s filing fee waiver application. When Attorney

Voss received the notice of the approval, he refunded to L.R. the filing fee which was held in trust.

¶14 Attorney Voss has submitted filing fee waiver

applications for bankruptcy clients other than J.M. and L.R.

after having collected filing fees from those other clients. In

all of those cases, the filing fee held in trust was not

disclosed as an asset of the debtor in the bankruptcy documents.

If the bankruptcy court waived the filing fee, Attorney Voss's

office returned the filing fee to the clients. If the

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bankruptcy court did not waive the filing fees, Attorney Voss's

office paid the filing fee to the bankruptcy court.

¶15 The remaining conduct at issue concerns Attorney

Voss's continued inability or unwillingness to comply with the

trust account rules. Since at least 1986, Attorney Voss has

used a particular bank account at M&I Bank (n/k/a BMO Harris

Bank) as his client trust account. Attorney Voss has designated

this account as his client trust account. However, the account

is not an Interest on Lawyer Trust Accounts (IOLTA) account and

does not accrue interest to be paid to the Wisconsin Trust

Account Foundation, Inc.

¶16 Attorney Voss has long been on notice that he must

rectify his handling of trust account funds. In 2006, Attorney

Voss received a public reprimand for misconduct that, in part,

related to his failure to maintain accurate records of his trust

account activity and his failure to maintain an IOLTA trust

account. In 2012, the OLR filed a disciplinary complaint

seeking to discipline Attorney Voss for misconduct that included his failure to maintain an IOLTA trust account; this complaint

culminated in the 18-month suspension which Attorney Voss is

currently serving. Attorney Voss continued, throughout these

prior matters, and throughout the OLR's investigation of the

present matter, to use the non-IOLTA account at M&I Bank (n/k/a

BMO Harris Bank) as his client trust account.

¶17 In late 2013, the OLR requested a copy of Attorney

Voss's trust account transaction register for the period of time in which he was holding J.M.'s filing fee in trust. Attorney 7 No. 2014AP2086-D

Voss provided to the OLR a list of deposits and a separate list

of disbursements, which did not separately or collectively meet

the requirements for compliant trust account documents.

¶18 On the basis of these facts, the parties stipulated,

and the referee concluded, that Attorney Voss committed the

following acts of misconduct:

 Count One: By filing or causing his staff to file

applications for filing fee waivers with the United

States Bankruptcy Courts on behalf of clients that

failed to disclose the amounts being held by Attorney

Voss on behalf of the clients for payment of their

filing fees, and thereby failing to comply with

applicable Federal Rules of Bankruptcy Procedure,

Attorney Voss violated SCR 20:3.4(c).4

 Count Two: By filing or causing his staff to file on

behalf of clients applications for filing fee waivers

with United States Bankruptcy Courts that failed to

disclose the funds being held in trust by Attorney Voss on behalf of the clients for payment of their

filing fees, Attorney Voss violated SCR 20:8.4(c).5

4 SCR 20:3.4 (c) provides that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists." 5 SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

8 No. 2014AP2086-D

 Count Three: By failing to adequately supervise his

staff so as to ensure that documents prepared and

filed by his staff on behalf of clients conformed in

all respects with applicable law and court rules and

were in all respects accurate, Attorney Voss violated

SCR 20:5.3(a) and (b).6

 Count Four: By failing to take reasonable steps to

ensure his staff timely informed him and/or clients of

case developments, including the payment status of

filing fees, Attorney Voss violated SCR 20:5.3(a) and

(b).

 Count Five: By (i) failing to maintain a pooled

interest bearing account; (ii) failing to participate

in the Interest on Trust Accounts Program; and (iii)

depositing client and third party funds that are

nominal in amount and/or intended to be held for a

6 SCR 20:5.3(a) and (b) provide that, with respect to a nonlawyer employed or retained by or associated with a lawyer,

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer[.]

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short period of time in a non-interest-bearing

account, Attorney Voss violated SCR 13.047 and

SCR 20.15(c)(l).8

 Count Six: By failing to provide the OLR with a copy

of his trust account transaction register for the

period requested of him by the OLR, Attorney Voss

violated SCR 20:1.15(e)(7).9 In the alternative, by

failing to maintain a compliant transaction register

7 SCR 13.04 provides, as relevant here, that "an attorney shall participate in the [Interest on Trust Accounts] program as provided in SCR 20:1.15[.]" 8 SCR 20:1.15(c)(1) provides:

A lawyer or law firm who receives client or 3rd- party funds that the lawyer or law firm determines to be nominal in amount or that are expected to be held for a short period of time such that the funds cannot earn income for the benefit of the client or 3rd party in excess of the costs to secure that income, shall maintain a pooled interest-bearing or dividend-paying draft trust account in an IOLTA participating institution. 9 SCR 20:1.15(e)(7) provides:

All trust account records have public aspects related to a lawyer's fitness to practice. Upon request of the office of lawyer regulation, or upon direction of the supreme court, the records shall be submitted to the office of lawyer regulation for its inspection, audit, use, and evidence under any conditions to protect the privilege of clients that the court may provide. The records, or an audit of the records, shall be produced at any disciplinary proceeding involving the lawyer, whenever material. Failure to produce the records constitutes unprofessional conduct and grounds for disciplinary action.

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for the period requested, Attorney Voss violated

SCR 20:1.15(f)(l)a.10

¶19 The parties briefed the issue of sanctions before the

referee. The OLR encouraged the referee to recommend a

six-month license suspension of Attorney Voss's Wisconsin law

license, to run consecutive to his present suspension. Attorney

Voss encouraged the referee to recommend a less-than-six-month

suspension, to run concurrent to his present suspension.

¶20 In his report, the referee recommended that the court

impose a 60-day license suspension, to run consecutive to

Attorney Voss's present suspension. The referee wrote that a

six-month period of suspension following Attorney Voss's

18-month suspension, as the OLR requested, was unnecessary to

10 SCR 20:1.15(f)(1)a. provides that complete records of a trust account that is a draft account shall include a transaction register. Specifically:

The transaction register shall contain a chronological record of all account transactions, and shall include all of the following:

1. the date, source, and amount of all deposits;

2. the date, check or transaction number, payee and amount of all disbursements, whether by check, wire transfer, or other means;

3. the date and amount of every other deposit or deduction of whatever nature;

4. the identity of the client for whom funds were deposited or disbursed; and

5. the balance in the account after each transaction

11 No. 2014AP2086-D

meet the goals of Wisconsin's disciplinary system——especially

since, in the referee's view, Attorney Voss's misconduct has

"more to do with sloppy office supervision and inadequate staff

and self-training than it has to do with intentional

professional misconduct."

¶21 Because no appeal was filed from the referee's report

and recommendation, our review proceeds pursuant to

SCR 22.17(2). 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. Finally,

we determine the appropriate level of discipline given the

particular facts of each case, independent of the referee's

recommendation but benefitting from it. In re Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,

660 N.W.2d 686. ¶22 We adopt the findings of fact and conclusions of law

to which the parties have stipulated and as adopted by the

referee. We agree with the referee that the stipulated facts

demonstrate that Attorney Voss committed each of the six counts

of misconduct alleged in the OLR's complaint.

¶23 We further agree with the referee that Attorney Voss's

misconduct warrants a 60-day suspension of his Wisconsin law

license. In imposing a 60-day suspension in lieu of a lengthier suspension, we note particularly the referee's determination 12 No. 2014AP2086-D

that Attorney Voss's mistakes were more a result of slipshod

practices, as Attorney Voss claimed, than flagrant misconduct,

as the OLR claimed——a determination from which the OLR has not

appealed. Even given that the events in this case were merely

the result of sloppy lawyering, however, we have no difficulty

justifying a 60-day suspension. See, e.g., In re Disciplinary

Proceedings Against McKloskey, 2009 WI 65, 318 Wis. 2d 602,

768 N.W.2d 10 (60-day suspension for sloppy and careless trust

account procedures and failure to keep a client informed).

¶24 We further agree with the referee that the 60-day

suspension should run consecutive to Attorney Voss's present

18-month suspension. We were concerned enough with Attorney

Voss's practice habits to impose a lengthy 18-month suspension.

Were we aware of the facts presented here, which further call

into question Attorney Voss's trust accounting practices and

forthrightness with courts and clients, we are confident we

would have imposed an even longer suspension. A consecutively

imposed suspension is therefore in order. See In re Disciplinary Proceedings Against Woodard, 190 Wis. 2d 487, 488,

526 N.W.2d 510 (1995).

¶25 We note that Attorney Voss has filed no objection to

the costs requested by the OLR, which total $2,801.98 as of

July 30, 2015. We therefore impose them.

¶26 Finally, we note that the OLR did not seek restitution

in this case. None is ordered.

¶27 IT IS ORDERED that the license of Richard W. Voss to practice law in Wisconsin is suspended for a period of 60 days, 13 No. 2014AP2086-D

to run consecutive to the discipline imposed in In re

Disciplinary Proceedings Against Voss, 2014 WI 75,

356 Wis. 2d 382, 850 N.W.2d 190.

¶28 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Richard W. Voss shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

¶29 IT IS FURTHER ORDERED that compliance with all

conditions of this decision is required for reinstatement. See

SCR 22.28(2).

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