                                                              2014 WI 95

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP2088-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against David V. Moss, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        David V. Moss,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST MOSS

OPINION FILED:          July 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                                2014 WI 95
                                                                        NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.     2013AP2088-D


STATE OF WISCONSIN                                  :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:

Office of Lawyer Regulation,                                                 FILED
             Complainant,
                                                                        JUL 30, 2014
       v.
                                                                           Diane M. Fremgen
                                                                        Clerk of Supreme Court
David V. Moss,

             Respondent.




       ATTORNEY         disciplinary        proceeding.       Attorney's            license

suspended.



       ¶1    PER       CURIAM.    On   January 23,        2014,     referee        James C.

Boll, Jr. issued a report recommending that Attorney David V.

Moss   be   declared       in    default,       concluding       that     Attorney       Moss

engaged     in    numerous       counts    of    professional        misconduct,          and

recommending that his license to practice law in Wisconsin be

suspended        for    nine     months,    that     he     be     ordered        to     make

restitution to the Wisconsin Lawyers' Fund for Client Protection
                                                                           No.     2013AP2088-D



(Fund), and that he pay the full costs of this proceeding, which

are $1,123.44 as of February 11, 2014.

       ¶2        We conclude that the referee's findings of fact are

supported         by    satisfactory           and       convincing     evidence.         Since

Attorney Moss failed to present a defense despite being given

the opportunity to do so, we declare him to be in default.

Based on our independent review of the record, we conclude that

a two-year suspension of Attorney Moss's license to practice law

in Wisconsin, rather than the nine months recommended by the

referee,         is    an       appropriate        sanction.       We    also     agree     that

Attorney Moss should be ordered to make restitution to the Fund

and that he should be assessed the full costs of the proceeding.

       ¶3        Attorney         Moss       was     admitted     to    practice      law     in

Wisconsin in 2009 and practiced in Galesville.                            According to the

record, he now lives in the state of Oregon.                               Attorney Moss's

Wisconsin        law    license         is    currently      suspended     for    failure     to

cooperate        with       OLR    grievance         investigations,      failure     to    pay

State Bar of Wisconsin (State Bar) dues, and non-compliance with
trust account certification requirements.

       ¶4        On September 19, 2013, the Office of Lawyer Regulation

(OLR)    issued        a    complaint          against     Attorney     Moss     alleging    35

counts      of    misconduct         with      respect      to   his    handling    of    eight

client matters.

       ¶5        The allegations in the 35-page OLR complaint will not

be extensively recited or repeated here.                               Counts One through

Five     of       the       complaint          arose       out    of     Attorney        Moss's
representation             of    S.H.    and       her   then-husband     J.H.,    who    hired
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Attorney Moss to represent them in a joint Chapter 7 bankruptcy

proceeding.      Attorney Moss charged them a $1,000 flat fee.                        The

bankruptcy petition was never filed.                   Despite never filing the

bankruptcy petition, Attorney Moss informed S.H. that he had

spent ten hours working on her case.                       On February 27, 2012,

Attorney     Moss    sent    S.H.    a   letter   saying    he    was       closing   his

office and moving to Oregon.

      ¶6     On April 28, 2012, Attorney Moss sent a letter to the

OLR saying he would not respond to any grievances.                          He enclosed

his State Bar membership card to serve as his resignation from

the State Bar.        On May 25, 2012, the OLR wrote to Attorney Moss

informing him that voluntary resignation is governed by Supreme

Court Rule (SCR) 10.03(7) and that the OLR would continue to

notify him of any grievance filed against him.

      ¶7     In June of 2012, the OLR notified Attorney Moss of the

grievance S.H. had filed against him and requested a written

response.       Attorney Moss failed to respond.                      On November 14,

2012,    this   court       temporarily      suspended      Attorney        Moss's    law
license.

      ¶8     S.H.    filed    a     claim   against    Attorney        Moss    with   the

Fund, and the Fund approved the claim for $1,000.

      ¶9     Counts Six through Ten of the OLR's complaint arose

out     of   Attorney      Moss's     representation       of    G.H.,        who   hired

Attorney     Moss     to    represent       him   in   a   Chapter 7          bankruptcy

proceeding.         Attorney Moss charged G.H. a $750 flat fee, but

never    initiated      bankruptcy       proceedings.           The    Fund     approved
G.H.'s claim for $750.
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       ¶10       Counts Eleven through Fifteen of the OLR's complaint

arose out of Attorney Moss's representation of S.J. and J.J.,

who hired Attorney Moss to represent them in a joint Chapter 7

bankruptcy proceeding.                Attorney Moss charged them a $1,000 flat

fee.         The    bankruptcy        petition      was     never    filed.     The     Fund

approved a claim for S.J. and J.J. for $1,000.

       ¶11       Count   Sixteen       of    the    OLR's    complaint      arose    out    of

Attorney Moss's representation of S.K., who hired Attorney Moss

to represent him in a Chapter 7 bankruptcy proceeding.                              Attorney

Moss charged S.K. a $500 flat fee.                          Attorney Moss did file a

bankruptcy petition on behalf of S.K.                        S.K. subsequently hired

Attorney Moss to represent him in a post-divorce matter in which

a $5,600 money judgment had been entered against S.K.                               Attorney

Moss agreed to request sanctions through the bankruptcy court

for    the    issuance        and   enforcement        of    the    money   judgment       and

agreed to file a Section 1983 lawsuit.                              Attorney Moss never

requested sanctions through the bankruptcy court and never filed

the promised lawsuit.
       ¶12       Counts Seventeen and Eighteen of the OLR's complaint

arose out of Attorney Moss's representation of S.L., who hired

Attorney         Moss    to    represent       him     in    a     Chapter 7   bankruptcy

proceeding.         Attorney Moss charged S.L. a $1,600 flat fee.                          In

September of 2010, S.L. purged a bench warrant, issued as a

result of an order for contempt in a Trempealeau County case, by

posting      a     $1,000     bond.         Attorney      Moss   filed   the   bankruptcy

petition on behalf of S.L., and he also represented S.L. in two
adversary proceedings.                As a result of an adversary proceeding
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filed    by     Attorney       Moss      in   January            of    2011,       the   $1,000    was

returned to Attorney Moss as a preference.                                   Attorney Moss told

S.L. he would hold the $1,000 in trust until the bankruptcy was

resolved.           S.L. tried to contact Attorney Moss regarding the

status of his bankruptcy and the $1,000 preference in early

February 2011, but Attorney Moss failed to return S.L.'s phone

calls.

       ¶13     In    July      of   2011,     pursuant            to    SCRs 22.02(6)(b)           and

22.10(4), Attorney Moss entered into a diversion agreement with

the OLR related to S.L.'s grievance.                             Attorney Moss breached the

conditions of the diversion agreement when he failed to provide

to the OLR verification of his attendance at six continuing

legal education/ethics credit hours of instruction by July 1,

2012.        On August 8, 2012, the OLR director notified Attorney

Moss     that       he   was    terminating                the    diversion         agreement     and

referring the matter to investigation.                                  The record indicates

that Attorney Moss returned the $1,000 to S.L.

       ¶14     Counts       Nineteen      through            Twenty-Three           of   the    OLR's
complaint arose out of Attorney Moss's representation of C.L.

and S.L., who hired Attorney Moss to represent them in a joint

Chapter 7 bankruptcy proceeding.                           Attorney Moss charged them a

$1,400 flat fee.               The L.s informed Attorney Moss that S.L.'s

wages    were       being    garnished        as       a    result      of     a   money   judgment

entered       against       them    in    Trempealeau             County.           Attorney      Moss

agreed to take his flat fee from the previously garnished wages

and returned the leftover funds to the L.s.                                  Attorney Moss also


                                                   5
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agreed to negotiate with the L.s' mortgage lender in an attempt

to lower their interest rate as part of the representation.

       ¶15    Attorney Moss filed a bankruptcy petition on behalf of

the L.s in March of 2011.           In May of 2011, Attorney Moss filed a

reaffirmation agreement regarding the L.s' mortgage.                         Attorney

Moss   also    filed     an    adversary        proceeding    to   collect      S.L.'s

garnished     wages.      As    a   part    of     the    proceeding,    the    entire

preference payment was returned to Attorney Moss.                    Attorney Moss

failed to account for and return any of the leftover funds to

the L.s.      In September 2011, Attorney Moss filed a revocation of

the reaffirmation agreement.            He failed to inform the L.s of the

status   or    results    of    his     purported        negotiations    with   their

mortgage lender.         He also failed to inform the L.s that he was

terminating his representation and/or closing his law office and

moving to Oregon, and failed to return their client file.

       ¶16    Counts Twenty-Four through Twenty-Nine of the OLR's

complaint arose out of Attorney Moss's representation of K.Q.

and J.Q., who hired Attorney Moss to represent them in a joint
Chapter 7 bankruptcy proceeding.                 Attorney Moss charged them a

$1,500 flat fee.          He did not have them sign a written fee

agreement.

       ¶17    In   February     2012,      after    missing    several    scheduled

meetings with the Q.s, Attorney Moss met with them and told them

he was closing his law office and moving to Oregon.                       He agreed

to continue representing them after the move.                      The bankruptcy

petition was never filed.             In April 2012, K.Q. terminated the
representation via email and asked Attorney Moss to return her
                                            6
                                                                 No.    2013AP2088-D



client file and unearned fees.               The Fund approved a claim for

the Q.s for $1,200.

      ¶18   Counts     Thirty     through      Thirty-Five       of     the   OLR's

complaint arose out of Attorney Moss's representation of K.S.

and her then-husband G.G., who hired Attorney Moss to represent

them in a joint Chapter 7 bankruptcy proceeding.                     Attorney Moss

charged them a $1,500 flat fee.               He did not have them sign a

written fee agreement.        Despite agreeing to do so, Attorney Moss

failed to contact the couple's mortgage lender in an attempt to

negotiate    a     reaffirmation    agreement.            From   September     2010

through August 2011, Attorney Moss failed to return most of the

couple's phone calls regarding the status of their bankruptcy.

The   parties'     mortgage     lender    filed     a    foreclosure    action   in

February 2011, and a default judgment was granted in April 2011.

      ¶19   The parties filed for a divorce in June 2011.                        In

August 2011, Attorney Moss filed the bankruptcy petition.                        In

October 2011, Attorney Moss had G.G. sign three reaffirmation

agreements, which were filed in December 2011.                       Attorney Moss
informed    G.G.    that   K.S.   would      need   to    sign   a   reaffirmation

agreement for her motorcycle, but Attorney Moss failed to take

any further action regarding the motorcycle.

      ¶20   From October 2011 through March 2012, Attorney Moss

failed to return K.S.'s numerous phone calls.                         The parties'

divorce was finalized in December of 2011.

      ¶21   In February of 2012, G.G. and K.S. met with Attorney

Moss at his Galesville law office.              During the meeting they saw
a handgun in Attorney Moss's lap and in his hand as he was
                                         7
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sitting     behind     his    desk.         Attorney         Moss        told   them   he    was

carrying     the     handgun        for    protection             from    people    who     were

hounding him and from clients who stalked and harassed him.

      ¶22    Attorney     Moss       was    personally            served    with   the      OLR's

complaint on September 20, 2013.                      He did not file an answer to

the complaint.         On December 18, 2013, the referee sent a letter

to Attorney Moss setting a telephone scheduling conference for

January 15, 2014.        Attorney Moss failed to respond to the letter

or appear at the scheduling conference.

      ¶23    On January 8, 2014, the OLR filed a motion for default

judgment.        At the January 15, 2014 scheduling conference, of

which Attorney Moss had notice, the referee recommended that

Attorney Moss be declared in default.

      ¶24    Attorney        Moss    has        not       filed     an    appeal    from     the

referee's report and recommendation.

      ¶25    Although Attorney Moss was given the opportunity to

present a defense to the OLR's complaint, he failed to do so.

Accordingly, we deem it appropriate to declare him in default.
      ¶26    A   referee's       findings            of    fact     are    affirmed       unless

clearly erroneous.            Conclusions of law are reviewed de novo.

See    In     re     Disciplinary               Proceedings          Against       Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                                 The court may

impose      whatever    sanction           it    sees       fit,     regardless        of    the

referee's recommendation.                  See In re Disciplinary Proceedings

Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶27    There is no showing that the referee's findings of
fact are clearly erroneous.                     Accordingly, we adopt them.                   We
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also agree with the referee's conclusions of law that Attorney

Moss violated the following supreme court rules, some of them in

multiple instances:    20:1.3;1 20:1.4(a)(3) and (4);2 20:1.5(a);3




    1
       SCR 20:1.3 states: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    2
       SCR 20:1.4(a)(3) and (4) provides that a lawyer shall
"keep the client reasonably informed about the status of the
matter" and shall "promptly comply with reasonable requests by
the client for information."
    3
        SCR 20:1.5(a) states:

         A lawyer shall not make an agreement for, charge,
    or collect an unreasonable fee or an unreasonable
    amount for expenses. The factors to be considered in
    determining the reasonableness of a fee include the
    following:

         (1) the time and labor required, the novelty and
    difficulty of the questions involved, and the skill
    requisite to perform the legal service properly;

         (2) the likelihood, if apparent to the client,
    that the acceptance of the particular employment will
    preclude other employment by the lawyer;

         (3) the fee customarily charged in the locality
    for similar legal services;

           (4) the amount involved and the results obtained;

         (5) the time limitations imposed by the client or
    by the circumstances;

         (6) the nature and length      of   the   professional
    relationship with the client;

         (7) the experience, reputation, and ability of
    the lawyer or lawyers performing the services; and

           (8) whether the fee is fixed or contingent.
                                 9
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20:1.5(b)(1)    and   (2);4   20:1.15(d)(1)   and   (2);5    20:1.16(d);6

20:8.4(g);7 and 22.03(2)8 and 22.03(6)9, enforced via 20:8.4(h).10
     4
         SCR 20:1.5(b)(1) and (2) states:

          (1) The scope of the representation and the basis
     or rate of the fee and expenses for which the client
     will be responsible shall be communicated to the
     client in writing, before or within a reasonable time
     after commencing the representation, except when the
     lawyer will charge a regularly represented client on
     the same basis or rate as in the past.       If it is
     reasonably   foreseeable  that  the   total   cost  of
     representation to the client, including attorney's
     fees, will be $1000 or less, the communication may be
     oral or in writing. Any changes in the basis or rate
     of the fee or expenses shall also be communicated in
     writing to the client.

          (2) If the total cost of representation to the
     client, including attorney's fees, is more than $1000,
     the purpose and effect of any retainer or advance fee
     that is paid to the lawyer shall be communicated in
     writing.
     5
         SCR 20:1.15(d)(1) and (2) states:

          (1) Notice and disbursement.      Upon receiving
     funds or other property in which a client has an
     interest, or in which the lawyer has received notice
     that a 3rd party has an interest identified by a lien,
     court order, judgment, or contract, the lawyer shall
     promptly notify the client or 3rd party in writing.
     Except as stated in this rule or otherwise permitted
     by law or by agreement with the client, the lawyer
     shall promptly deliver to the client or 3rd party any
     funds or other property that the client or 3rd party
     is entitled to receive.

          (2) Accounting.   Upon final distribution of any
     trust property or upon request by the client or a 3rd
     party having an ownership interest in the property,
     the lawyer shall promptly render a full written
     accounting regarding the property.
     6
         SCR 20:1.16(d) states:

                                   10
                                                  No.   2013AP2088-D



    ¶28     After careful review of this matter, we conclude that

the nine-month suspension sought by the OLR and recommended by


         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.
    7
       SCR 20:8.4(g) provides that it is professional misconduct
for a lawyer to "violate the attorney's oath."
    8
         SCR 22.03(2) states:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.     The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.      The director may
    allow additional time to respond.     Following receipt
    of the response, the director may conduct further
    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present   any
    information deemed relevant to the investigation.
    9
       SCR 22.03(6) states: "In the course of the investigation,
the respondent's wilful failure to provide relevant information,
to answer questions fully, or to furnish documents and the
respondent's misrepresentation in a disclosure are misconduct,
regardless of the merits of the matters asserted in the
grievance."
    10
       SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."

                                11
                                                                           No.    2013AP2088-D



the    referee     is    an   insufficient          sanction       for    Attorney       Moss's

misconduct.        Although Attorney Moss had a license to practice

law in Wisconsin for only slightly more than three years before

his    license     was    suspended,       during          that    short     timeframe       he

engaged in repeated misconduct where he took fees from clients,

failed to perform the work for which he was retained, failed to

communicate      with     the    clients        regarding         the    status     of   their

matters,     and    failed      to    return         fees   and        client    files     upon

request.     The incident in which Attorney Moss was brandishing a

handgun during a client meeting is disturbing.                             We believe that

a     two-year     suspension        of   his       license       to     practice    law     in

Wisconsin is a sanction more commensurate with the misconduct at

issue in this case.

       ¶29   A   two-year       suspension          is   also     consistent        with   the

level of discipline imposed in prior cases.                             For example, in In

re     Disciplinary           Proceedings           Against       Cooper,        2013 WI 55,

348 Wis. 2d 266, 833 N.W.2d 88, we imposed a two-year suspension

in a case involving 42 counts of misconduct arising out of nine
separate     client      matters.         In    In    re    Disciplinary         Proceedings

Against Lucius, 2008 WI 12, 307 Wis. 2d 255, 744 N.W.2d 605, we

imposed a two-year suspension in a case where the attorney was

found to have committed ten counts of misconduct arising out of

six client matters.             Attorney Moss was found to have committed

35 counts of misconduct in his handling of eight client matters.

A     two-year     suspension        of   his       license       to     practice    law     in

Wisconsin is an appropriate sanction.


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    ¶30     We agree with the referee that Attorney Moss should be

required to make restitution to the Fund and that he should be

required to pay the full costs of this proceeding.

    ¶31     IT IS ORDERED that the license of David V. Moss to

practice    law   in   Wisconsin    is   suspended   for   a   period        of   two

years, effective the date of this order.

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

of this order, David V. Moss should make restitution to the

Wisconsin    Lawyers'     Fund     for    Client   Protection        as     follows:

$1,000 attributable to S.H.; $750 attributable to G.H.; $1,000

attributable to S.J. and J.J.; and $1,200 attributable to K.Q.

and J.Q.

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

of this order, David V. Moss shall pay to the Office of Lawyer

Regulation the costs of this proceeding, $1,123.44.

    ¶34     IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.
    ¶35     IT IS FURTHER ORDERED that David V. Moss shall comply

with the provisions of SCR 22.26 concerning the duties of an

attorney whose license to practice law has been suspended.

    ¶36     IT    IS   FURTHER     ORDERED    that   compliance           with    all

conditions of this order is required for reinstatement.                           See

SCR 22.29(4)(c).




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