                                                                  2017 WI 4

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2015AP2676-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Ty Christopher Willihnganz, Attorney at
                        Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Ty Christopher Willihnganz,
                                  Respondent-Appellant.
                          DISCIPLINARY PROCEEDINGS AGAINST WILLIHNGANZ

OPINION FILED:          January 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs (Opinion filed).
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2017 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.    2015AP2676-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Ty Christopher Willihnganz,
Attorney at Law:


Office of Lawyer Regulation,
                                                                   FILED
            Complainant,                                      JAN 31, 2017

      v.                                                         Diane M. Fremgen
                                                              Clerk of Supreme Court

Ty Christopher Willihnganz,

            Respondent.




      ATTORNEY    disciplinary      proceeding.         Attorney          publicly

reprimanded.



      ¶1    PER   CURIAM.     We   review      the    report       of      Referee

Robert E.   Kinney    who   concluded   that    Attorney      Ty    Christopher

Willihnganz's     professional     misconduct        warrants         a     public

reprimand and recommends that we require him to pay the full

costs of this disciplinary proceeding.

      ¶2    No appeal has been filed from the referee's report and
recommendation so we review the matter pursuant to Supreme Court
                                                            No.     2015AP2676-D



Rule (SCR) 22.17(2).1        After considering the referee's report,

the parties' stipulation, and the record in this matter, we

agree that Attorney Willihnganz engaged in some, but not all, of

the acts of professional misconduct alleged in the Office of

Lawyer Regulation's (OLR) complaint.             We agree that a public

reprimand is appropriate and we require Attorney Willihnganz to

pay the full costs of this proceeding, which were $5,028.97 as

of October 6, 2016.

    ¶3      Attorney Willihnganz was admitted to practice law in

Wisconsin    on    April   11,   1996.      In   2001,    his     license    was

administratively suspended for failure to comply with continuing

legal education (CLE) requirements.              In 2004, he received a

public reprimand for failing to abide by a client's decision

concerning   the    objectives    of     representation    and     failing   to

consult with the client in violation of SCR 20:1.2(a),2 and for

    1
        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.
    2
        SCR 20:1.2(a) provides:

    Subject to pars. (c) and (d), a lawyer shall abide by
    a client's decisions concerning the objectives of
    representation and, as required by SCR 20:1.4, shall
    consult with the client as to the means by which they
    are to be pursued.   A lawyer may take such action on
    behalf of the client as is impliedly authorized to
    carry out the representation. A lawyer shall abide by
                                                   (continued)
                                       2
                                                                    No.    2015AP2676-D



failure   to      cooperate    with    the     OLR's    investigation        into   the

matter.      In     re   Disciplinary      Proceedings     Against        Willihnganz,

2004 WI 31, 270 Wis. 2d 229, 676 N.W.2d 473.                      His law license

was reinstated in June 2007.                   In 2008, this court imposed a

private   reprimand       on   Attorney      Willihnganz    for     practicing      law

during the administrative suspension for non-compliance with CLE

requirements.             In   re      Disciplinary        Proceedings        Against

Willihnganz, No. 2008AP180, unpublished order (S. Ct. July 28,

2008).

    ¶4     This      proceeding       arises     from    Attorney     Willihnganz's

professional involvement with a Green Bay businessman and family

friend, R.V.

    ¶5     In approximately 2010, Attorney Willihnganz, who had

taken a break from the practice of law to pursue other career

interests, returned to Green Bay and the practice of law.                            He

negotiated     an    agreement      with     R.V.,     whereby    R.V.     agreed    to

provide Attorney Willihnganz with office space for his legal

practice and to pay his State Bar of Wisconsin bar dues and CLE
expenses in exchange for Attorney Willihnganz providing certain

legal services to R.V. and his new energy startup, Green Box.




    a client's decision whether to settle a matter. In a
    criminal case or any proceeding that could result in
    deprivation of liberty, the lawyer shall abide by the
    client's decision, after consultation with the lawyer,
    as to a plea to be entered, whether to waive jury
    trial and whether the client will testify.


                                           3
                                                           No.    2015AP2676-D



    ¶6     The working arrangement proved stressful and Attorney

Willihnganz described it as a "pretty desperate time" when, in

March of 2013, an individual who had invested $600,000 in Green

Box filed a lawsuit in Brown County circuit court against R.V.

and Green Box, alleging that his investment was obtained by

fraudulent      misrepresentation.       Attorney    Willihnganz's     brief

representation of R.V. and Green Box during his administrative

license suspension gave rise to this disciplinary proceeding.

    ¶7     On     December   30,   2015,   the      OLR   filed   a   formal

disciplinary complaint against Attorney Willihnganz seeking a

60-day suspension of his license to practice law.                 First, it

alleged that Attorney Willihnganz violated SCR 20:1.16(d)3 by

failing to take steps to protect the interests of R.V. and Green

Box upon the termination of his representation of them.               Second,

it alleged that Attorney Willihnganz violated SCR 22.26(1)(c)4 by

    3
        SCR 20:1.16(d) provides:

    Upon termination of representation, a lawyer shall
    take steps to the extent reasonably practicable to
    protect   a  client's   interests,   such  as   giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
    been earned or incurred. The lawyer may retain papers
    relating to the client to the extent permitted by
    other law.
    4
        SCR 22.26(1)(c) provides:

    On or before the effective date of license suspension
    or revocation, an attorney whose license is suspended
    or revoked shall do all of the following . . ..
    Promptly provide written notification to the court or
                                                   (continued)
                                     4
                                                              No.   2015AP2676-D



failing to promptly provide written notification to the court

and opposing counsel of a June 4, 2013, law license suspension.

Third,     it   alleged    that    Attorney         Willihnganz       violated

SCR 31.10(1)5   and   22.26(2)6   by       practicing   law   after   his   law

     administrative agency and the attorney for each party
     in a matter pending before a court or administrative
     agency of the suspension or revocation and of the
     attorney's consequent inability to act as an attorney
     following the effective date of the suspension or
     revocation.   The notice shall identify the successor
     attorney of the attorney's client or, if there is none
     at the time notice is given, shall state the client's
     place of residence.
     5
         SCR 31.10(1) provides:

     If a lawyer fails to comply with the attendance
     requirement of SCR 31.02, fails to comply with the
     reporting requirement of SCR 31.03(1), or fails to pay
     the late fee under SCR 31.03(2), the board shall serve
     a notice of noncompliance on the lawyer. This notice
     shall advise the lawyer that the lawyer’s state bar
     membership   shall  be  automatically   suspended  for
     failing to file evidence of compliance or to pay the
     late fee within 60 days after service of the notice.
     The board shall certify the names of all lawyers so
     suspended under this rule to the clerk of the supreme
     court, all supreme court justices, all court of
     appeals and circuit court judges, all circuit court
     commissioners appointed under SCR 75.02(1) in this
     state, all circuit court clerks, all juvenile court
     clerks, all registers in probate, the executive
     director of the state bar of Wisconsin, the Wisconsin
     State Public Defender’s Office, and the clerks of the
     federal district courts in Wisconsin.   A lawyer shall
     not engage in the practice of law in Wisconsin while
     his or her state bar membership is suspended under
     this rule.
     6
         SCR 22.26(2) provides:

     An attorney whose license to practice law is suspended
     or revoked or who is suspended from the practice of
                                                     (continued)
                                       5
                                                                                   No.     2015AP2676-D



license was suspended.                     Fourth and finally, it alleged that

Attorney       Willihnganz          violated          SCR      20:8.4(c)7     by     giving        false

testimony in a deposition.

       ¶8         The   Honorable          Robert         E.    Kinney       was     appointed       as

referee.          The OLR filed a motion for summary judgment.                                     At a

July       2016    telephonic        hearing          on     the     OLR's    motion,        Attorney

Willihnganz admitted to count one of the complaint.                                       The parties

indicated          that     a     comprehensive             stipulation        of        facts     would

follow.

       ¶9         Referee         Kinney            accepted         Attorney        Willihnganz's

admission          to     count     one        of     the      complaint,       found       that    the

complaint         alleged       sufficient           facts      to   support       the     misconduct

charge, and concluded that Attorney Willihnganz committed the

misconduct alleged in count one.                            The parties reserved the right

to     argue       whether         the     stipulated            facts       substantiated          the

remaining          allegations            of        misconduct        and     the         appropriate

sanction.

       ¶10        The referee conducted a hearing on August 15, 2016.
At     the        hearing,        the      parties             submitted      a      comprehensive


       law may not engage in this state in the practice of
       law or in any law work activity customarily done by
       law   students,   law  clerks,   or   other  paralegal
       personnel, except that the attorney may engage in law
       related work in this state for a commercial employer
       itself not engaged in the practice of law.
       7
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                                      6
                                                           No.     2015AP2676-D



stipulation of facts, whereby Attorney Willihnganz reiterated

his admission to the misconduct alleged in count one of the

complaint and agreed that the referee could use the stipulated

facts to determine whether Attorney Willihnganz committed the

misconduct alleged in counts two through four of the complaint.

Attorney Willihnganz testified at the evidentiary hearing.

    ¶11    The parties' stipulation and the testimony from the

evidentiary hearing focused on events between March 2013 and

January 2014.

    ¶12    In March 2013, M.A. filed a complaint in Brown County

circuit court against R.V. and Green Box alleging that R.V. used

misrepresentations and false promises to induce M.A. to invest

$600,000 in Green Box.      Attorney Willihnganz filed an Answer on

behalf of the defendants.       Discovery commenced.

    ¶13    On June 4, 2013, Attorney Willihnganz's law license

was administratively suspended for failure to comply with 2011-

2012 CLE requirements.      Attorney Willihnganz told R.V. about the

suspension and urged him to retain new counsel, but did not
promptly provide formal written notification to the court or to

opposing counsel.

    ¶14    In   a   June   5,   2013,    letter   to    opposing     counsel,

Attorney   Willihnganz     sent   some    undated      discovery     answers,

stating:   "Attached are the answers to Plaintiffs First Set of

Interrogatories.     I will provide you with a signed version as

soon as [R.V.] returns to town."

    ¶15    In a June 27, 2013 letter, opposing counsel responded,
informing Attorney Willihnganz that the defendants' discovery
                                     7
                                                                             No.     2015AP2676-D



responses were deficient and reminding him that defendants had

failed to respond to a document request.                               A July 12, 2013,

letter from opposing counsel reiterated these issues.

      ¶16    Attorney      Willihnganz            did     not    inform       R.V.     of    this

correspondence.         A motion to compel ensued; Attorney Willihnganz

received notice of a September 20, 2013 scheduling conference.

      ¶17    On     August    13,      2013,         Attorney     Willihnganz          filed    a

motion to withdraw as counsel.                          A hearing on the withdrawal

motion was scheduled for September 30, 2013.

      ¶18    On September 20, 2013, Attorney Willihnganz appeared

on behalf of R.V. and Green Box for the telephonic scheduling

conference on the scheduling conference.                         During the conference,

Attorney     Willihnganz         stated          that    he     was    not     intending       to

withdraw his motion, and the scheduling conference proceeded.

Attorney Willihnganz did not inform the court, the clerk, or

opposing         counsel     that          his       license     was     administratively

suspended.

      ¶19    On September 30, 2013, opposing counsel appeared at
the   scheduled         hearing       on     Attorney         Willihnganz's         motion     to

withdraw as counsel. Attorney Willihnganz did not appear.

      ¶20    On    October       4,   2013,       the    circuit       court       granted   the

plaintiff's motion to compel and ordered R.V. and Green Box to

produce the requested documents and to serve responses to the

Interrogatories on or before November 1, 2013.

      ¶21    On or about November 1, 2013, another administrative

suspension was imposed on Attorney Willihnganz's law license for
failure     to    pay    State    Bar       of    Wisconsin      dues     and      failure     to
                                                 8
                                                             No.   2015AP2676-D



certify   compliance       with      trust         account     recordkeeping

requirements.

    ¶22   On    November   5,     2013,   with      discovery      still   not

forthcoming, plaintiff's counsel moved to strike the defendants'

answer and sought a default judgment.

    ¶23   On January 2, 2014, a new lawyer filed a notice of

appearance on behalf of Green Box.        On January 21, 2014, another

attorney filed a notice of appearance on behalf of R.V.

    ¶24   In a January 22, 2014 deposition in the Green Box

litigation,     Attorney   Willihnganz       was    asked    the     following

questions and gave the following answers:

    Q. Did you tell him ([R.V.]) why it                       was    you
    participated in the scheduling conference                 when   you
    didn't have a license to practice law?

    A. Yes, I just said, you know, I felt uncomfortable
    about it; but since I took the call, I just went
    through with it.

    Q. So did you tell him even though you did that you
    can't represent him, he needs to get some other
    lawyer?

    A. I don't remember if I specifically said that.
    Again, I thought it was understood that since I did
    not have a license I was not the lawyer.

     . . .

    Q. I looked you up on the             State     Bar of    Wisconsin
    website, and it indicated             that      you're    currently
    suspended?

    A. That is correct.

    Q. And if I recall correctly, you have been subjected
    to discipline by the Supreme Court on at least one
    occasion?


                                    9
                                                              No.   2015AP2676-D


     A. Yes.

     Q. And when was that?

     A. That was 2004, I believe.
     ¶25   After testifying to the facts of his 2004 discipline,

Attorney Willihnganz was asked the following question and gave

the following answer:

     Q. Is that the only time you have been disciplined by
     the Supreme Court?

     A. Yes.
Attorney     Willihnganz     did    not    disclose     his    2008    private

reprimand.

     ¶26   R.V. maintained that "neither he nor Green Box knew,

or had reason to know, that Attorney Ty Willihnganz was failing

to   properly   manage      the    case,   failing     to   respond    to   the

Plaintiff's communications and failing to comply with the orders

of this court."

     ¶27   In his accompanying affidavit, R.V. stated:

     In or around June 2013, Attorney Willihnganz informed
     me that his license was suspended due to his failure
     to complete continuing education classes and pay state
     bar dues.    I was informed that Attorney Willihnganz
     was working towards having his license reinstated.
     ¶28   R.V. also stated:

     Following the filing of the Motion to Withdraw, I did
     not receive any mail from either the plaintiffs
     counsel or the court.       At the time of Attorney
     Willihnganz's withdrawal, I also did not receive any
     documents from him that were provided to him from
     plaintiff's counsel regarding the discovery issues.
     ¶29   Attorney        Willihnganz      complied        with    his     CLE
requirements in April 2014; his law license remained suspended

                                      10
                                                                       No.    2015AP2676-D



until June, 2014, when he resolved all remaining administrative

obligations and his law license was reinstated.

      ¶30     On   October     23,     2014,      nine    months      after    successor

counsel replaced Attorney Willihnganz, the circuit court granted

plaintiff's motion for default judgment against R.V. and Green

Box   and     entered       judgment    against          them   in    the     amount      of

$813,735.34.        The defendants appealed but the court of appeals

affirmed, noting that after retaining replacement counsel, the

defendants did not attempt to rectify the discovery violation

for   almost       eleven    months.          The   court       remanded      the    case,

directing the circuit court to amend the judgment to require the

plaintiff to transfer his membership units back to Green Box

upon payment of the judgment.

      ¶31     In its decision, the court of appeals stated:

      At his deposition, Willihnganz testified that, around
      the time of his motion, he strongly advised [R.V.] and
      Green Box to obtain new counsel. Nonetheless, because
      he expected to be reinstated, he participated in a
      scheduling conference on September 20, 2013. After the
      scheduling conference, Willihnganz failed to open his
      mail, did not respond to telephone calls, and did not
      provide any additional discovery to [plaintiff's
      counsel].
Araujo   v.    Van Den Heuvel,         No.     2014AP2846-FT         unpublished         slip

op., ¶3 (Wis. Ct. App. Aug. 25, 2015).

      ¶32     The referee rendered his report and recommendation in

this disciplinary proceeding on September 20, 2016.                          The referee

had   already      accepted    Attorney       Willihnganz's          admission      to    the

misconduct alleged in count one of the OLR complaint so the



                                             11
                                                             No.   2015AP2676-D



report focused on the remaining allegations and the appropriate

sanction.

      ¶33   The complaint alleged that Attorney Willihnganz failed

to   promptly    provide   written    notification      to   the   court   and

opposing counsel of his law license suspension, in violation of

SCR 22.26(1)(c).        An attorney who fails to abide by mandatory

continuing legal education requirements may be suspended. See

SCR 31.01(1).         Supreme Court   Rule    22.26(1) provides that an

attorney whose license is suspended shall - on or before the

effective date of license suspension - do a number of things,

including, as pertinent here, promptly providing:

      [W]ritten notification to the court or administrative
      agency and the attorney for each party in a matter
      pending before a court or administrative agency of the
      suspension or revocation and of the attorney's
      consequent inability to act as an attorney following
      the effective date of the suspension or revocation.
      The notice shall identify the successor attorney of
      the attorney's client or, if there is none at the time
      notice is given, shall state the client's place of
      residence.
SCR 22.26(1)(c).

      ¶34   It   is    undisputed    that    Attorney   Willihnganz's      law

license was administratively suspended on June 4, 2013, and that

he filed a motion to withdraw as counsel on August 13, 2013.

      ¶35   Attorney Willihnganz testified that he thought he had

a "reasonable amount of time" before he provided notice of his

license suspension. The referee observed that "even under the

most liberal interpretation" of the rule, Attorney Willihnganz's
delay in this matter was unreasonable.             Moreover, the referee


                                      12
                                                                          No.     2015AP2676-D



noted that "the record is devoid of any evidence that [Attorney

Willihnganz] furnished notice of his suspension in the manner

contemplated by the rule."                  The referee thus concluded that by

failing to promptly provide written notification to the court

and opposing counsel of his June 4, 2013, law license suspension

and his consequent inability to act as an attorney after June 4,

2013, Attorney Willihnganz violated SCR 22.26(1)(c) as alleged

in count two of the OLR complaint.

       ¶36    The           referee      next        considered      whether        Attorney

Willihnganz practiced law after his license had been suspended

in violation of SCRs 31.10(1) and 22.26(2).                             Specifically, as

alleged      in       the    complaint    and    as     stipulated      by   the    parties,

Attorney          Willihnganz         sent       a      letter      and         answers    to

interrogatories to opposing counsel on June 5, 2013, one day

after his administrative license suspension, and he appeared on

his clients' behalf at a September 20, 2013 telephone scheduling

conference, during that suspension.

       ¶37    Attorney Willihnganz argued that he qualified for a
narrow exception to the prohibition against a suspended lawyer

practicing law, on the theory that he was engaged in law related

work   for        a    commercial     employer         itself     not   engaged      in   the

practice of law, namely Green Box. Supreme Court Rule 22.26(2)

provides:

       An attorney whose license to practice law is suspended
       or revoked or who is suspended from the practice of
       law may not engage in this state in the practice of
       law or in any law work activity customarily done by
       law   students,  law   clerks,   or  other   paralegal
       personnel, except that the attorney may engage in law

                                                13
                                                                       No.     2015AP2676-D


      related work in this state for a commercial employer
      itself not engaged in the practice of law.
(Emphasis        added).     See   also    In     re    Disciplinary         Proceedings

Against Hyndman, 2002 WI 6, 249 Wis. 2d 650, 638 N.W.2d 293.

      ¶38    The     referee       was     not     persuaded.             The     referee

specifically found that Attorney Willihnganz was not an employee

of Green Box.        The referee thus rejected Attorney Willihnganz's

contention that his work for Green Box fell within the exception

to SCR 22.26(2).

      ¶39    The     referee       also    rejected      Attorney         Willihnganz's

effort to characterize his actions as permissible because they

were "purely administrative."              For example, Attorney Willihnganz

claimed     he    had    drafted     the   discovery          responses      before    his

suspension and merely mailed them after the suspension and noted

that lay persons sometimes attend scheduling conferences.

      ¶40    The referee rejected these arguments.                      He noted that

SCR   22.26(2)       broadly       encompasses         "any     law     work     activity

customarily done by law students, law clerks, or other paralegal

personnel" and concluded that it was impermissible for Attorney
Willihnganz to send the discovery responses or participate in

the   scheduling        conference    while      suspended.           Accordingly,      the

referee concluded that Attorney Willihnganz practiced law after

his privilege to do so had been suspended, thereby violating

SCRs 31.10(1) and 22.26(2).

      ¶41    The        referee     next        considered       whether         Attorney

Willihnganz violated SCR 20:8.4(c) by giving false testimony at
his   January      22,     2014,   deposition.         Specifically,         when     asked


                                           14
                                                                   No.    2015AP2676-D



about      his     professional         disciplinary          history,       Attorney

Willihnganz      did    not    affirmatively      disclose     having    received     a

private reprimand in 2008.

     ¶42    At    the     evidentiary        hearing,       Attorney     Willihnganz

testified that he was nervous during the deposition and he just

"forgot" about the private reprimand.                 He said he had nothing to

gain by not disclosing it, noting he had disclosed the public

reprimand which he considered more serious.                   The OLR argued this

was "just not credible."

     ¶43    The referee stated, "I frankly do not know, based on

this record, whether [Attorney Willihnganz] remembered or forgot

that he had been privately reprimanded."                    At the hearing and in

his report, the referee raised questions about the scope of a

lawyer's     obligation         to    affirmatively         disclose     a      private

reprimand.        Ultimately,         the    referee       recommended    the     court

dismiss count four of the complaint.

     ¶44    Supreme Court Rule 22.17(1) provides that within 20

days after the filing of the referee's report, the director or
the respondent may file with the supreme court an appeal from

the referee's report. Neither party appealed.                      Accordingly, we

review this matter pursuant to SCR 22.17(2).

     ¶45    This court will affirm a referee's findings of fact

unless they are found to be 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        given    the     particular         facts   of    each    case,
                                            15
                                                                          No.     2015AP2676-D



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.

      ¶46     There is no showing that any of the referee's findings

of fact, which are largely derived from the parties' stipulation

and    the    referee's             credibility       determinations,           are     clearly

erroneous.        Accordingly, we adopt them.

      ¶47     We also accept the referee's conclusions with respect

to the alleged misconduct.                We agree with the referee's analysis

and share his conclusion that Attorney Willihnganz committed the

misconduct        alleged       in     counts     one,      two,    and     three       of    the

complaint.

      ¶48     The facts of record in this case do not support a

conclusion        that    Attorney         Willihnganz's           deposition         testimony

constituted        conduct          involving     dishonesty,        fraud,       deceit      or

misrepresentation,             in    violation       of    SCR   20:8.4(c).           Omissions

that cause a statement to be false can constitute unethical

conduct      in   violation          of   SCR    20:8.4(c).          See,       e.g.,    In   re
Disciplinary Proceedings Against Knickmeier, 2004 WI 115, 275

Wis. 2d 69, 683 N.W.2d 445, cert. denied, 544 U.S. 1041 (2005);

In re Disciplinary Proceedings Against Urban, 2002 WI 63, 253

Wis. 2d 194, 645 N.W.2d 612.                    Here, the referee did not find

that Attorney Willihnganz's omission was dishonest, fraudulent,

deceitful, or that he communicated an untruth, either knowingly

or    with    reckless         disregard.            See    SCR     20:1.0(h)         (defining

misrepresentation).                 Mindful that the referee is the ultimate
arbiter of witness credibility, In re Disciplinary Proceedings
                                                16
                                                                            No.     2015AP2676-D



Against      Riordan,        2012      WI    125,       ¶28,     345       Wis. 2d 42,        824

N.W.2d 441, we conclude that there is insufficient evidence on

this record to establish that Attorney Willihnganz's deposition

testimony       constituted         conduct        involving      dishonestly,           fraud,

deceit    or     misrepresentation           in     violation         of    SCR     20:8.4(c).

Accordingly, we dismiss count four of the OLR's complaint.

      ¶49      We     next    consider       the        appropriate         discipline        for

Attorney       Willihnganz's          misconduct.               The     referee       properly

considered       relevant      factors,       including,         (1)       the    seriousness,

nature and extent of the misconduct; (2) the level of discipline

needed to protect the public, the courts and the legal system

from repetition of the attorney's misconduct; (3) the need to

impress upon the attorney the seriousness of the misconduct; and

(4) the need to deter other attorneys from committing similar

misconduct.          In re Disciplinary Proceedings Against Hammis, 2011

WI   3,   ¶39,       331   Wis. 2d 19,       793     N.W.2d 884;           see    also   In    re

Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶15, 331

Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA Standards as a
guidepost).

      ¶50      The    referee       acknowledged         that    this       court    generally

follows a policy of progressive discipline.                            In re Disciplinary

Proceedings         Against     Ray,    2004       WI    45,    270        Wis. 2d 651,       678

N.W.2d 246;         In re     Disciplinary Proceedings Against Louderman,

230 Wis. 2d 200, 601 N.W.2d 625 (1999).

      ¶51      Indeed, in this case, the OLR's recommendation for a

60-day      suspension        was     predicated         on     the     OLR's       policy    of
progressive          discipline.       The    OLR       acknowledged         that     Attorney
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Willihnganz's conduct in this matter was not egregious.                           The OLR

observed:

       In and of themselves in a vacuum, these violations are
       relatively minor in that they don't involve harming
       anyone, stealing any money or anything of that
       severity. The reason for the recommendation of a 60-
       day suspension is in weighing the pros and cons, the
       merits and the balancing test, there is a desire in
       the system that, for attorneys like Mr. Willihnganz,
       that there be a system of progressive discipline.
       Progressive    discipline    meaning    that    where,
       unfortunately, there are subsequent violations, that
       the penalties become increasingly more severe, Mr.
       Willihnganz's first violation was - resulted in a
       private reprimand. His second violation resulted in a
       public reprimand.    Had it not been for those two
       cases, the OLR's recommendation in this case would
       probably be for either a private or public reprimand
       because that's the level of severity in a vacuum which
       they reach.
       ¶52     The referee declined to impose progressive discipline

in this case.          The referee opined that the cases cited by the

OLR involved more serious misconduct than was committed here.

He observed that Attorney Willihnganz provided representation in

only   one     case,    over    a    brief    period       of   time,    and    performed

minimal      legal   work.     The   referee       found    Attorney      Willihnganz's

testimony credible when he said that he repeatedly urged the

client    to    provide      more    extensive       discovery        responses.       The

referee      also    believed       that     Attorney      Willihnganz        "repeatedly

urged the client to engage the services of another lawyer."

       ¶53     The referee cited several cases where this court opted

to   impose     a    successive       public       reprimand     despite       the    OLR's

recommendation         for   progressive          discipline     in    the     form   of   a
license suspension.            See In re Disciplinary Proceedings Against

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Kremkoski, 2006 WI 59, 291 Wis. 2d 1, 715 N.W.2d 594 (imposing

public reprimand despite prior private and public reprimand); In

re    Disciplinary      Proceedings       Against       Brandt,    2009       WI       43,    317

Wis. 2d 266, 766 N.W.2d 194 (imposing public reprimand despite

two    private        reprimands        and    a    public    reprimand);               In    re

Disciplinary       Proceedings          Against     Hudec,       2014     WI       46,        354

Wis. 2d 728, 848 N.W.2d 287 (imposing public reprimand despite

three prior private reprimands and one public reprimand).                                     The

referee noted the absence of other aggravating factors and the

presence of mitigating factors, including his cooperativeness

and remorse.          The OLR has not appealed this recommendation and

we    accede     to    the    referee's        recommendation        that          a     public

reprimand is sufficient discipline for Attorney Willihnganz's

misconduct.

       ¶54     Finally, although the referee recommends we dismiss

one of the alleged counts of misconduct, he recommends that we

impose all of the costs of this disciplinary proceeding.                                 In re

Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶29-30,
279    Wis. 2d 266,       694      N.W.2d 367      (holding      that     even         when    a

respondent      prevails      on    a   number     of   counts,    it    is    still         the

court's policy to assess full costs).                    We agree.        Nothing about

this case warrants deviating from our general policy of imposing

all    costs    upon    the     respondent.         See    SCR    22.12.               Attorney

Willihnganz is ordered to pay the full costs of the proceeding,

which are $5,028.97 as of October 6, 2016.

       ¶55     We accept the OLR's October 6, 2016 statement that
restitution is not warranted in this matter.
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      ¶56   IT IS ORDERED that count four of the complaint is

dismissed.

      ¶57   IT IS FURTHER ORDERED that Ty Christopher Willihnganz

is publicly reprimanded for his professional misconduct.

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

of   this   order,   Ty   Christopher    Willihnganz   shall    pay   to   the

Office of Lawyer Regulation the costs of this proceeding, which

total $5,028.97 as of October 6, 2016.

      ¶59   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 order.




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     ¶60    SHIRLEY S. ABRAHAMSON, J.                     (concurring).          I join the

per curiam but write separately to state that I would have the

court    address    count     4,    namely       giving      false        testimony         at   a

deposition.

     ¶61    When Attorney Willihnganz was asked at a deposition if

he had been disciplined only once by this court, he responded

"Yes,"     apparently      referring       to     a       public    reprimand          he    had

received from this court.

     ¶62    In     addition        to     the     public       reprimand,            Attorney

Willihnganz had received a private reprimand from this court.

     ¶63    The    referee    decided       to     dismiss         count    4    but    raised

questions     about     the      scope      of        a    lawyer's        obligation            to

affirmatively disclose a private reprimand to a tribunal.

     ¶64    I do not object to the referee's recommendation to

dismiss count 4.        I do, however, conclude that the court ought

to   answer      whether    an     attorney        should      consider          a     private

reprimand as discipline by this court in answering questions

about    court    discipline.           Lawyers,      as    well     as    the    Office         of
Lawyer Regulation and referees, ought to know the answer to this

question for the future.




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