2023 WI 4
SUPREME COURT OF WISCONSIN CASE NO.: 2022AP1124-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against William E. Fenger, Attorney at Law:
Office of Lawyer Regulation, Complainant, v. William E. Fenger, Respondent.
DISCIPLINARY PROCEEDINGS AGAINST FENGER
OPINION FILED: January 25, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: Per curiam. ZIEGLER, C.J., filed a concurring opinion in which REBECCA GRASSL BRADLEY and HAGEDORN, J., joined. NOT PARTICIPATING:
ATTORNEYS: 2023 WI 4 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2022AP1124-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against William E. Fenger, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant, JAN 25, 2023 v. Sheila T. Reiff Clerk of Supreme Court William E. Fenger,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
revoked.
¶1 PER CURIAM. Attorney William E. Fenger filed a
petition for the consensual revocation of his license to
practice law in Wisconsin pursuant to Supreme Court Rule (SCR)
22.19.1 In his petition, Attorney Fenger states that he cannot
1 SCR 22.19 provides:
(1) An attorney who is the subject of an investigation for possible misconduct or the respondent in a proceeding may file with the supreme court a (continued) No. 2022AP1124-D
successfully defend against multiple allegations of misconduct
in connection with a grievance investigated by the Office of
Lawyer Regulation (OLR). The referee appointed in this matter,
the Honorable Jean A. DiMotto, recommends that this court grant
Attorney Fenger's petition for consensual license revocation.
¶2 Attorney Fenger was admitted to practice law in
Wisconsin in 1974. His license is currently suspended for
petition for the revocation by consent [of] his or her license to practice law.
(2) The petition shall state that the petitioner cannot successfully defend against the allegations of misconduct.
(3) If a complaint has not been filed, the petition shall be filed in the supreme court and shall include the director's summary of the misconduct allegations being investigated. Within 20 days after the date of filing of the petition, the director shall file in the supreme court a recommendation on the petition. Upon a showing of good cause, the supreme court may extend the time for filing a recommendation.
(4) If a complaint has been filed, the petition shall be filed in the supreme court and served on the director and on the referee to whom the proceeding has been assigned. Within 20 days after the filing of the petition, the director shall file in the supreme court a response in support of or in opposition to the petition and serve a copy on the referee. Upon a showing of good cause, the supreme court may extend the time for filing a response. The referee shall file a report and recommendation on the petition in the supreme court within 30 days after receipt of the director's response.
(5) The supreme court shall grant the petition and revoke the petitioner's license to practice law or deny the petition and remand the matter to the director or to the referee for further proceedings.
2 No. 2022AP1124-D
failure to pay state bar dues and failure to comply with trust
account certification. His disciplinary history consists of two
private reprimands, one issued in 1994, Private Reprimand 1994-
21, and one issued in 1995, Private Reprimand 1995-34.
¶3 On July 6, 2022, OLR filed a complaint against
Attorney Fenger alleging seven counts of misconduct arising out
of his representation of J.K. In December 2010, H.W., J.K.'s
brother, passed away. J.K agreed to serve as personal
representative for H.W.'s estate. J.K. filed an application for
informal probate and served as personal representative without
legal representation for about two years.
¶4 In August 2013, J.K. filed a general inventory on
behalf of the estate listing a residential property in Milwaukee
as the only asset. In December 2014, J.K. retained Attorney
Fenger to assist her with the handling and closing of the
estate. Attorney Fenger did not provide a written
representation agreement to J.K. regarding the scope of his
representation and did not intend to bill for his services due to prior work he had performed for J.K.'s spouse. J.K. told
Attorney Fenger that she wanted to sell the residential
property.
¶5 R.T. is a residential tenant at a property owned by
Attorney Fenger in St. Francis, Wisconsin. That property
consists of Attorney Fenger's law office on the ground floor and
two residential units on the second floor. In exchange for
discounted rent, R.T. performed maintenance and repair work at properties owned by Attorney Fenger. Attorney Fenger had 3 No. 2022AP1124-D
previously represented R.T. in a criminal matter in 2004 and
2005. In addition, in 2006, R.T. executed a general durable
power of attorney (general POA) naming Attorney Fenger as his
agent. The general POA gave Attorney Fenger the authority to
buy and sell real estate on R.T.'s behalf. Attorney Fenger told
OLR that R.T.'s health concerns had prompted him to execute the
general POA.
¶6 After being retained by J.K., Attorney Fenger visited
the residential property. R.T. accompanied him on that visit.
During the visit, a neighbor indicated to either R.T. or
Attorney Fenger a willingness to pay $30,000 for the property.
R.T. subsequently informed Attorney Fenger that he was willing
to pay $30,000 for the property.
¶7 J.K.'s family originally told Attorney Fenger that
they were willing to accept $20,000 for the sale of the
residential property, which had been vacant for several years
and was in disrepair. Attorney Fenger advised them how to value
the property and how to dispose of it. J.K., as personal representative, did not seek an independent appraisal for the
property prior to the sale, nor did Attorney Fenger advise her
to obtain one. Although it is disputed whether J.K. ever met
R.T. in person, Attorney Fenger facilitated the agreement for
J.K. to sell the property to R.T. Attorney Fenger did not
disclose his relationship with R.T. to J.K. prior to the sale of
the property.
¶8 In January 2015, Attorney Fenger prepared a WB-11 Residential Offer to Purchase in which he stated that he 4 No. 2022AP1124-D
represented the buyer, R.T., even though the personal
representative, J.K., was his client. The WB-11 reflected a
purchase price of $30,000. According to Attorney Fenger, R.T.
asked that the WB-11 be backdated to January 2014 for tax
reasons. Attorney Fenger knowingly backdated the offer and
acceptance dates to January 2, 2014, and he drafted a closing
statement which he backdated to January 3, 2014. The personal
representative's deed purports to have been signed by J.K. on
January 3, 2014.
¶9 The WB-11 contained a number of provisions that make
the buyer and seller's interests adverse, such as the fact that
the seller could continue to accept offers on the property even
after binding acceptance of R.T.'s offer; the selection of the
closing date which would impact the proration of real estate
taxes imposed on the seller versus the buyer; and the
possibility of defects in the property being discovered between
the acceptance of the offer and the closing date which could
render the sale null and void if the seller failed to either elect to cure the defects or elected to cure and then failed to
do so.
¶10 In January 2015, Attorney Fenger prepared and
submitted paperwork to incorporate MILW8946 LLC on behalf of
R.T. Wisconsin Department of Financial Institution records
reflect that the LLC's registration date was January 5, 2015.
The sole purpose of the LLC was to purchase and then sell the
residential property.
5 No. 2022AP1124-D
¶11 Instead of paying $30,000 of purchase money into
Attorney Fenger's client trust account, Attorney Fenger decided
that the $30,000 would be credited to his trust account over
time in the form of work performed by R.T. on other real estate
in which Attorney Fenger had an ownership interest. The credits
toward payment for the property were made in the form of
deposits and checks by Attorney Fenger into his trust account.
The practical effect of the arrangement was an interest free
land contract purchase by R.T. from the estate.
¶12 In a letter dated November 30, 2021 to OLR, Attorney
Fenger represented that he considered the arrangement to be a
loan between himself and R.T. and saw nothing wrong with the
arrangement. However, the estate and J.K.'s family were the
parties to whom the money was owed. Attorney Fenger never
discussed the loan arrangement with the Ks; the Ks never
consented to the loan agreement; the terms of the purported loan
were never reduced to writing; and the Ks were not advised to
seek the advice of independent legal counsel on the transaction. ¶13 Attorney Fenger acquired a pecuniary interest adverse
to the Ks in that he made the arrangement with R.T. to barter
R.T.'s handyman services as payment for the property. Attorney
Fenger determined the value of services provided by R.T. to
Attorney Fenger for work on Attorney Fenger's other real estate.
Attorney Fenger determined when the credits resulting in
payments by Attorney Fenger to his trust account would occur,
and the $30,000 in actual funds for the sale of the property
6 No. 2022AP1124-D
were not deposited into Attorney Fenger's trust account in full
until April 2017.
¶14 Attorney Fenger failed to hold the funds, or
"credits," in trust on behalf of the estate and the Ks. The
"credits" paid by Attorney Fenger into the trust account should
have resulted in certain minimum balances in the trust account
between the January 2015 sale of the property and July 2017, the
termination of his representation of the Ks. In fact, the trust
account balance fell below those expected minimum balance
amounts during various periods of time.
¶15 In a letter dated February 3, 2020, Attorney Fenger
represented to OLR's investigator that the funds from the
January 2015 sale of the property were received by the estate
and placed into Attorney Fenger's client trust account. The
statement was false because, in fact, no funds were received
from anyone.
¶16 In an April 9, 2021 email to OLR, Attorney Fenger
represented that "[t]here were two cash payments from [Mr. T.]. One was in the amount of $5,000 and then there was a later
second payment in the amount of $3,000. Those monies were
placed in Mr. Fenger's trust account."
¶17 Those statements were also false because no cash
payments had been made by R.T.
¶18 In a November 30, 2021 letter to OLR, Attorney Fenger
disclosed that in fact, "[t]he $5,000 and $3,000 were not cash
payments made by [Mr. T.], but rather credit." This statement
7 No. 2022AP1124-D
directly contradicted Attorney Fenger's April 9, 2021 statement
that they were cash payments.
¶19 Attorney Fenger prepared a Statement For Closing Real
Estate Transaction dated January 3, 2014, in which he
represented that the buyer, R.T., was credited $30,000 toward
the purchase of the property and that there was no balance due
to the seller. R.T. signed the statement; the Ks did not sign
the document.
¶20 On February 15, 2016, Attorney Fenger filed a petition
for extension of time in the probate case requesting additional
time to close the estate. Although the residential property was
the only real estate that had been owned by the estate and it
had already been sold, Attorney Fenger stated as one basis for
needing an extension, "[r]eal estate needs to be sold or
problems with the sale/distribution of the land." An addendum
to the petition for extension of time stated, "[a]n Offer to
Purchase Real Estate has been accepted – a closing is expected
in early June . . . ." At the time the petition for extension of time was filed, the court had no information on file
regarding the already completed sale of the real estate.
¶21 On or about July 11, 2017, J.K. terminated Attorney
Fenger's representation of the estate. Attorney Fenger then
transferred funds belonging to the estate from his client trust
account to successor counsel. Attorney Fenger provided
successor counsel with a check for $36,603.28 representing the
estate's funds, which included funds received from the sale of the real estate. A few weeks after the first check, Attorney 8 No. 2022AP1124-D
Fenger provided successor counsel with a second check for
$2,985.67 for the 2014 property taxes on the real estate.
¶22 In November 2017, after R.T. had performed renovations
on the property, Attorney Fenger helped R.T. sell the property
for $91,000.
¶23 The OLR's complaint alleged the following counts of
misconduct:
Count 1: By failing to disclose and describe his relationship to [R.T.] to the personal representative prior to the sale of the [residential property], Fenger violated SCR 20:1.4(a)(1).2
Count 2: By arranging the sale of the [residential property] from his client personal representative to [R.T.], with whom he had personal and professional connections and whom he assisted in the transaction, Fenger violated SCR 20:1.7(a)(2).3
Count 3: By knowingly backdating an offer to purchase and the Personal Representative's Deed conveying real property in order to make it appear that the real
2 20:1.4(a)(1) provides: "A lawyer shall promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in SCR 20:1.0(f), is required by these rules." 3 SCR 20:1.7(a)(2) provides:
Except as provided in par. (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
9 No. 2022AP1124-D
property sale had occurred a year prior to the actual sale, Fenger violated SCR 20:8.4(c).4
Count 4: By filing a petition for extension of time in the matter of the estate that contained misrepresentations of fact and material omissions concerning the status of the real estate owned by the decedent, Fenger violated SCR 20:3.3(a)(1).5
Count 5: By failing to hold in trust the funds or proceeds from the sale of the [residential property] on behalf of the Estate and the [Ks], Fenger violated SCR 20:1.15(b)(1).6
Count 6: By making false statements to OLR during its investigation regarding cash payments made by [R.T.] to Fenger for the purchase of the [residential property], Fenger violated SCR 22.03(6).7
4 SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation." 5 SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." 6 SCR 20:1.15(b)(1) provides:
A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and 3rd parties that is in the lawyer's possession in connection with a representation. All funds of clients and 3rd parties paid to a lawyer or law firm in connection with a representation shall be deposited in one or more identifiable trust accounts. 7 SCR 22.03(6) provides: "In the course of the investigation, the respondent's willful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentations in a disclosure are misconduct regardless of the merits asserted in the grievance."
10 No. 2022AP1124-D
Count 7: By acquiring a pecuniary interest adverse to the Estate and the [Ks], Fenger violated SCR 20:1.8(a).8
¶24 Attorney Fenger filed his petition for revocation by
consent on October 17, 2022. The petition states he cannot
successfully defend himself against the allegations of
professional misconduct set forth in OLR's complaint. The
petition states that Attorney Fenger has closed his law office,
currently has no clients and has no intention of accepting any
new clients, and has no intention or plan to resume the practice of law in the future. Attorney Fenger states he has been
represented by counsel in this matter, is freely, voluntarily,
and knowingly filing his petition and understands that by doing
8 SCR 20:1.8(a) provides:
A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.
11 No. 2022AP1124-D
so he is giving up his right to further contest each misconduct
allegation in OLR's complaint.
¶25 The OLR filed a memorandum recommending that Attorney
Fenger's petition for revocation by consent be granted and that
his Wisconsin law license be revoked.
¶26 On November 9, 2022, the referee issued a report
recommending that this court grant Attorney Fenger's petition
for revocation of his license to practice law in Wisconsin. The
referee noted that, "[t]he breadth and depth of the Respondent's
misconduct is noteworthy" and that Attorney Fenger concurrently
represented an individual whose interests were absolutely
adverse to his client's and that he engaged in a pattern of
deceit and fraud, including making false and misleading
representations to his client, to a government agency, to a
court, and to OLR. The referee also found that Attorney Fenger
engaged in blatant trust account violations and "[h]is pattern
of fraud and deceit was self-serving, and compromised his
client's interests." The referee said that it was fitting that, with the advice of counsel, Attorney Fenger has petitioned this
court for revocation by consent. The referee says, "[t]his is a
satisfactory conclusion of this matter because it protects the
public and the legal system from any further misconduct by
Attorney Fenger."
¶27 Having reviewed Attorney Fenger's petition for
consensual revocation, the OLR's recommendation on the petition,
and the referee's report, we grant Attorney Fenger's petition for the revocation of his license to practice law in Wisconsin. 12 No. 2022AP1124-D
As the referee noted, Attorney Fenger engaged in multiple counts
of misconduct by representing a client in the face of a clear
conflict of interest. He engaged in conduct involving
dishonesty, fraud, deceit or misrepresentation. He knowingly
made false statements of fact or law to a tribunal. He failed
to hold client funds in trust. He made misrepresentations to
OLR in the course of its investigation, and he acquired
pecuniary interest adverse to his client.
¶28 The seriousness of Attorney Fenger's misconduct
demonstrates the need to revoke his law license in order to
protect the public, the courts, and the legal system from
repetition of his misconduct; to impress upon him the
seriousness of his misconduct; and to deter other attorneys from
engaging in similar misconduct. The court has previously
revoked attorneys' licenses when they face multiple counts of
misconduct, including allegations of dishonest conduct and
failing to hold funds in trust. See, e.g., In re Disciplinary
Proceedings Against Knapp, 2021 WI 15, 395 Wis. 2d 833, 955 N.W.2d 152.
¶29 OLR states that it is not seeking to assess cost in
this matter because Attorney Fenger agreed to resolve the matter
soon after the complaint was filed, and OLR asked for the
appointment of a referee solely for the purpose of reviewing the
petition for consensual revocation and OLR's response. We
accede to OLR's request that no costs be assessed against
Attorney Fenger.
13 No. 2022AP1124-D
¶30 IT IS ORDERED that the petition for consensual license
revocation is granted.
¶31 IT IS FURTHER ORDERED that the license of William E.
Fenger to practice law in Wisconsin is revoked, effective the
date of this order.
¶32 IT IS FURTHER ORDERED that William E. Fenger shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
14 No. 2022AP1124-D.akz
¶33 ANNETTE KINGSLAND ZIEGLER, C.J. (concurring). I
concur in the court's order revoking Attorney Fenger's license
to practice law in Wisconsin. I write separately to point out
that in Wisconsin the "revocation" of an attorney's law license
is not truly revocation because the attorney may petition for
reinstatement after a period of five years. See SCR 22.29(2).
I believe that when it comes to lawyer discipline, courts should
say what they mean and mean what they say. We should not be
creating false perceptions to both the public and to the lawyer
seeking to practice law again. See In re Disciplinary
Proceedings Against Moodie, 2020 WI 39, 391 Wis. 2d 196, 942
N.W.2d 302 (Ziegler, J., dissenting). And, as I stated in my
dissent to this court's order denying Rule Petition 19-10, In
the Matter of Amending Supreme Court Rules Pertaining to
Permanent Revocation of a License to Practice Law in Attorney
Disciplinary Proceedings, I believe there may be rare and
unusual cases that would warrant the permanent revocation of an attorney's license to practice law. See S. Ct. Order 19-10
(issued Dec. 18, 2019) (Ziegler, J., dissenting).
¶34 I am authorized to state that Justices REBECCA GRASSL
BRADLEY and BRIAN HAGEDORN join this concurrence.
1 No. 2022AP1124-D.akz