                                                            2020 WI 50

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2018AP659-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Robert C. Menard, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant-Respondent,
                            v.
                       Robert C. Menard,
                                 Respondent-Appellant.

                           DISCIPLINARY PROCEEDINGS AGAINST MENARD

OPINION FILED:         May 29, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam
NOT PARTICIPATING:



ATTORNEYS:



      For the respondent-appellant, there were briefs filed by
Terry E. Johnson, Ryan P. Fetherston, and von Briesen & Roper,
S.C., Milwaukee.

      For the complainant-respondent, there was a brief filed by
John T. Payette and the Office of Lawyer Regulation, Madison.
                                                                  2020 WI 50
                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.    2018AP659-D


STATE OF WISCONSIN                      :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Robert C. Menard, Attorney at Law:

Office of Lawyer Regulation,                                    FILED
            Complainant-Respondent,                        MAY 29, 2020
      v.                                                       Sheila T. Reiff
                                                           Clerk of Supreme Court
Robert C. Menard,

            Respondent-Appellant.




      ATTORNEY   disciplinary   proceeding.        Attorney's         license

revoked.


      ¶1    PER CURIAM.   Attorney Robert C. Menard has appealed a

referee's recommendation that his license to practice law in

Wisconsin be revoked; that he be ordered to make restitution to a

number of clients; and that he be ordered to pay the full costs of

this proceeding, which are $18,191.42 as of October 25, 2019.

Attorney Menard stipulated to 30 counts of misconduct and the only

disputed issue left for the referee to decide was the appropriate

sanction.    Similarly, the only issue raised on appeal is what is
reasonable and appropriate discipline for the misconduct in this
                                                              No.    2018AP659-D



case. We agree with the referee that revocation is the appropriate

sanction.

     ¶2     Attorney   Menard   was       admitted   to   practice     law   in

Wisconsin in 1991.     He has no prior disciplinary history.          On March

20, 2020, the court, on its own motion pursuant to Supreme Court

Rule (SCR) 22.21(1), determined that Attorney Menard's continued

practice of law posed a threat to the interests of the public and

the administration of justice, and it temporarily suspended his

license.

     ¶3     On April 9, 2018, the Office of Lawyer Regulation (OLR)

filed a complaint against Attorney Menard alleging 23 counts of

misconduct arising out of 12 client matters.              The complaint also

alleged various counts of misconduct regarding commingling of

funds, conducting prohibited bank transactions, various trust

account violations, and making misrepresentations to the OLR.

Referee James W. Mohr, Jr. was appointed on May 7, 2018.              Attorney

Menard filed an answer to the complaint on May 18, 2018.

     ¶4     On December 28, 2018, the OLR filed an amended complaint
adding eight counts of misconduct.           The amended complaint added

three counts of misconduct involving one of the client matters set

forth in the original complaint.            It also added five counts of

misconduct involving a client matter that was not part of the

original complaint. Attorney Menard filed an answer to the amended

complaint on January 18, 2019.

     ¶5     Attorney Menard eventually chose to admit the factual

basis of counts 1 through 30 in the OLR's amended complaint, and
the OLR agreed to dismiss count 31 with prejudice.              A hearing on
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                                                          No.    2018AP659-D



sanction was held before the referee on August 19 and 20, 2019.

At that time, the parties stipulated that the factual allegations

in the amended complaint constituted a sufficient factual basis in

the record for the referee to conclude that the misconduct alleged

in counts 1 through 30 of the amended complaint had taken place.

     ¶6      The referee issued his report on October 10, 2019.          He

found that the OLR's uncontested motion for summary judgment and

the stipulation put on the record at the evidentiary hearing

supported the finding that the OLR had proven all 30 counts of

misconduct by clear, satisfactory, and convincing evidence.             The

following factual recitation is taken from the amended complaint.

     ¶7      At all times material to the allegations in the amended

complaint, Attorney Menard was a member of the firm Derzon &

Menard, S.C.     (More recently, he practiced with Menard & Menard.)

He handled primarily worker's compensation and personal injury

matters.     Between   August   2011   and   September   2014,   the   firm

maintained both a trust account and a business account at Park

Bank.     Between January 2014 and February 2016 the firm maintained
both a trust account and a business account at U.S. Bank.         Attorney

Menard also maintained two joint savings accounts with his wife at

U.S. Bank.    He was responsible for trust account recordkeeping for

his clients, and his partner, Alan Derzon, was responsible for

such functions for his clients.        However, Attorney Menard prepared

most of the deposit slips and signed most of the transactions for

the firm's trust and business accounts.

     ¶8      The first three counts set forth in the OLR's amended
complaint involved Attorney Menard's representation of B.C., a
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                                                         No.   2018AP659-D



minor, in a personal injury matter.     Attorney Menard was appointed

guardian ad litem (GAL) for B.C.        The circuit court approved a

$47,500 minor settlement.     As GAL, Attorney Menard was ordered to

make a payment to Dean Health Care and was ordered to place money

in a federally insured interest bearing account at Park Bank until

B.C. reached the age of 18 in April 2014.

     ¶9    Attorney Menard deposited or directed the deposit of a

$47,500 check, payable to the Derzon & Menard S.C. trust account,

to the Park Bank trust account.        He then transferred the entire

settlement from the Park Bank trust account to the Park Bank

business   account.   Those    transfers   were   made   by    telephone.

Immediately before these transfers, the Park Bank business account

was overdrawn.   The transfers restored the account to a positive

balance.

     ¶10   The amended complaint alleged the following counts of

misconduct with respect to B.C.'s case:

     Count 1:   By disbursing and failing to hold in trust
     $29,105.65 that he received as B.C.'s GAL on February 1,
     2013,      Attorney     Menard      violated      former
     SCR 20:1.15(j)(1).1

     1 Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, 2016 WI 21 (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

     Former SCR 20:1.15(j)(1) provided:

          A lawyer shall hold in trust, separate from the
     lawyer's own funds or property, those funds or that
     property of clients or 3rd parties that are in the
     lawyer's possession when acting in a fiduciary capacity
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                                                     No.   2018AP659-D


     Count 2:   By converting $29,105.65 belonging to B.C.
     between April 24, 2013 and May 16, 2013 to cover
     overdrafts on the Park Bank Business Account, Attorney
     Menard violated SCR 20:8.4(c).2

     Count 3:   By failing to place B.C.'s $29,105.65 in a
     federally insured interest bearing account until B.C.
     reached the age of 18 on April 2, 2014, Attorney Menard
     knowingly failed to abide by a court order and violated
     SCR 20:3.4(c).3
     ¶11   The next four counts of misconduct alleged in the amended

complaint arose out of Attorney Menard's representation of C.M.

and D.D.    Attorney Menard represented C.M. in a personal injury
action.    In December 2013, Attorney Menard deposited or directed

the deposit of a $76,000 check related to C.M.'s claim to the Park

Bank trust account.   The firm also represented D.D. in a worker's

compensation claim and a related civil action.      Attorney Menard

deposited or directed the deposit of a $90,000 check related to

D.D.'s claim to the Park Bank trust account.

     ¶12   Between December 18, 2013 and February 3, 2014, Attorney

Menard transferred $163,500 of the C.M. and D.D. settlements from

the Park Bank trust account to the Park Bank business account.

Most of the transfers occurred by telephone or internet.           On


     that directly arises in the course of, or as a result
     of, a lawyer-client relationship or by appointment of a
     court.
     2 SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud, deceit
or misrepresentation."
     3 SCR 20:3.4(c) provides:    "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."

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                                                    No.   2018AP659-D



December 20, 2013, the Park Bank business account was overdrawn by

more than $15,000.     A transfer from the Park Bank trust account

briefly restored the business account to a positive balance but

soon thereafter the Park Bank business account was again overdrawn.

The business account was restored to a positive balance with

another transfer from the trust account.      This pattern of the

business account being overdrawn and then restored to a positive

balance by more transfers from the trust account was repeated

multiple times.

     ¶13    The amended complaint alleged the following counts of

misconduct with respect to the C.M. and D.D. cases:

     Count 4:   By disbursing and failing to hold in trust
     $46,919.15 of C.M.'s personal injury settlement between
     December 18, 2013 and February 3, 2014, Attorney Menard
     violated SCR 20:1.15(b)(1).4

     Count 5: By converting $46,919.15 of C.M.'s settlement
     between December 18, 2013 and February 3, 2014 to cover
     overdrafts on the firm's business account, Attorney
     Menard violated SCR 20:8.4(c).

     Count 6: By disbursing and failing to hold in trust as
     much as $57,500 of D.D.'s settlement between December
     23, 2013 and February 3, 2014, Attorney Menard violated
     SCR 20:1.15(b)(1).




     4   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.

                                  6
                                                                   No.        2018AP659-D


       Count 7:   By converting as much as $57,500 of D.D.'s
       settlement between December 23, 2013 and February 3,
       2014 to cover overdrafts on the firm's business account,
       Attorney Menard violated SCR 20:8.4(c).
       ¶14   The next client matter detailed in the amended complaint

involved Attorney Menard's firm's representation of D.S. in a

personal injury matter.          On November 26, 2012, Attorney Menard

deposited or directed the deposit of a $190,000 check relating to

the D.S. matter to the Park Bank business account.                              Between

November 26, 2012 and November 30, 2012, Attorney Menard used the

D.S. settlement proceeds to cover numerous transactions, including

pre-authorized debits to AT&T, Target, CITI Card, and Austin Ford.

       ¶15   The amended complaint alleged the following count of

misconduct with respect to D.S.'s settlement:

       Count 8: By converting as much as $117,300.02 of D.S.'s
       settlement between November 26, 2012 and December 18,
       2012 to pay business and personal expenses and to make
       disbursements to himself of $13,500, Attorney Menard
       violated SCR 20:8.4(c).
       ¶16   The next client matter detailed in the amended complaint

involved Attorney Menard's representation of B.H. in a personal

injury matter.       On December 3, 2012, Attorney Menard deposited or
directed the deposit of a $93,893.53 check to the firm's Park Bank

business account.          By December 18, 2012, the Park Bank business

account was overdrawn; none of the settlement proceeds had been

paid   to    B.H.;   and    Attorney   Menard       had   converted      as    much   as

$67,072.82     of    the    settlement.         Attorney        Menard    eventually

disbursed a total of $52,950 to B.H. despite the fact that the

settlement     breakdown     specified       that   she   was    owed    $62,950.32.



                                         7
                                                        No.   2018AP659-D



Attorney Menard has provided no evidence that B.H. received the

remaining $10,000 of her settlement funds.

     ¶17   The OLR's amended complaint alleged the following count

of misconduct with respect to Attorney Menard's handling of the

B.H. settlement:

     Count 9: By converting as much as $67,072.82 of B.H.'s
     settlement between December 3, 2012 and December 18,
     2012 in order to cover disbursements unrelated to his
     representation of B.H., Attorney Menard violated SCR
     20:8.4(c).
     ¶18   The next client matter detailed in the amended complaint

involved Attorney Menard's representation of M.B. in a worker's

compensation   claim.   On    December   19,   2012,   Attorney   Menard

deposited or directed the deposit of a $63,491.97 check to the

Park Bank business account.    Another check payable to an attorney

at Derzon & Menard was deposited the same day.          Prior to those

deposits, the Park Bank business account was overdrawn.              The

deposited funds were used to cover checks to Attorney Menard and

wire transfers to other individuals.     In addition, Attorney Menard

disbursed four checks payable to "cash" totaling $16,000 from the

funds.     The amended complaint alleged the following count of

misconduct with respect to the M.B. matter:

     Count 10: By converting as much as $63,491.97 of M.B.'s
     settlement between December 19, 2012 and January 4, 2013
     in order to repay $42,259.46 that was owed to D.S. and
     make $11,000 in disbursements and wire transfers to
     Attorney Menard and others, as well as $16,000 in cash
     disbursements, Attorney Menard violated SCR 20:8.4(c).
     ¶19   The next client matter detailed in the amended complaint
involved Attorney Menard's representation of J.B. regarding an


                                  8
                                                      No.   2018AP659-D



auto accident.   On April 15, 2013, Attorney Menard deposited or

directed the deposit of a $92,330 check to the Park Bank business

account along with two other checks.      Prior to this deposit, the

business account was overdrawn.   The deposit restored the account

to a positive balance.     Between April 15 and April 22, 2013,

Attorney Menard made numerous disbursements from the Park Bank

business account, including a $28,300 cashier's check to his wife.

     ¶20   At the close of business on April 22, 2013, the business

account was overdrawn by $244.19; none of the funds had been

disbursed to J.B. and Attorney Menard had converted as much as

$55,648.44 relating to the J.B. matter.    Attorney Menard continues

to owe J.B., or her subrogated care providers, $12,648.44.

     ¶21   The amended complaint alleged the following count of

misconduct with respect to Attorney Menard's representation of

J.B.:

     Count 11: By converting as much as $55,648.44 of J.B.'s
     settlement between April 15, 2013 and April 22, 2013 in
     order to repay $27,500 to D.S., provide a $28,300
     cashier's check to his wife, and cover numerous business
     or personal expenses, Attorney Menard violated SCR
     20:8.4(c).
     ¶22   The next client matter detailed in the amended complaint

involved Attorney Menard's representation of J.L.-M. in a personal

injury action and a related third-party worker's compensation

claim. The settlement in the matter was paid via two checks issued

to the Derzon & Menard trust account:     a $108,000 check dated May

13, 2013, and a $12,000 check dated June 3, 2013.   On June 3, 2013,

Attorney Menard deposited or directed the deposit of the $108,000
check to the Park Bank business account.      Prior to this deposit

                                  9
                                                                 No.    2018AP659-D



the account was overdrawn by over $12,000.                  Between June 3 and

June 17, 2013, Attorney Menard made numerous disbursements from

the business account for business and personal expenses.                   By June

17, 2013, the business account was overdrawn by $2,757.59 and no

disbursements had been made to J.L.-M.            Attorney Menard told J.L.-

M. he had made disbursements in accordance with the settlement

breakdown.

      ¶23    Specifically,       Attorney    Menard      told   J.L.-M.    he   had

disbursed     $12,491.77    to    Athletic   &    Therapeutic     Institute     and

$7,623.75 to Blount Orthopedic Clinic.                Park Bank records show

that neither check was ever presented for payment or cleared the

business account.

      ¶24    In January 2014, against Attorney Menard's advice, J.L.-

M.   and    her   husband   claimed   all    of    her    medical   expenses    as

deductions on their 2013 joint income tax return.                   An IRS audit

ensued in 2016.

      ¶25    J.L.-M. and her husband hired the law firm of Robinson

& Henry, P.C., to represent them in the tax audit.                     Thereafter,
both J.L.-M. and her new attorneys repeatedly requested medical

billing information and documentation from Attorney Menard.                 While

Attorney Menard was initially helpful in providing documents, he

later became difficult to reach and never sent them all of the

correct documents showing proof of medical payments he had made on

J.L.-M.'s behalf.

      ¶26    Ultimately, the IRS did not allow the payments to Blount

Orthopedic Clinic and Athletic & Therapeutic Institute to be
included in its calculations because there was no proof those
                                       10
                                                             No.     2018AP659-D



medical expenses had been paid out of J.L.-M.'s settlement.                J.L.-

M.   and    her   husband   eventually    settled   with   the     IRS    for   an

additional tax burden of $3,973, plus interest on their 2013 tax

return.

      ¶27    On November 26, 2013, Attorney Menard issued a check

from his Park Bank business account payable to Blount Orthopedic

Clinic in the amount of $3,000, which was presented and paid in

December 2013.      Attorney Menard acknowledged to the OLR that this

check was paid on behalf of J.L.-M. to settle the debt she owed to

Blount Orthopedic Clinic.

      ¶28    On July 24, 2014, Attorney Menard issued a check from

his U.S. Bank business account payable to Athletic & Therapeutic

Institute in the amount of $8,000, which was presented and paid on

August 20, 2014.       Attorney Menard acknowledged to the OLR that

this check was paid on behalf of J.L.-M. to settle the debt owed

to Athletic & Therapeutic Institute.

      ¶29    Attorney Menard never advised either J.L.-M. or Robinson

& Henry of these reduced payments, despite their repeated requests
during the IRS audit for evidence of all medical payments made.

Until July 2018, Attorney Menard had led J.L.-M. to believe that

the full bills of both of those creditors had been paid.                 To date,

Attorney Menard has not made any refund to J.L.-M., either the

$4,623.75 balance of any funds after the $3,000 payment to Blunt

Orthopedic Clinic or the $4,491.77 balance of funds after the

$8,000 payment to Athletic & Therapeutic Institute.




                                     11
                                                    No.   2018AP659-D



     ¶30    The amended complaint alleged the following counts of

misconduct with respect to Attorney Menard's handling of the J.L.-

M. case:

     Count 12: By converting as much as $78,727.28 of J.L.-
     M.'s settlement between June 3, 2013 and June 17, 2013
     to cover numerous business or personal expenses,
     including $384 in overdraft fees; a $10,000 check to his
     mother; a $5,000 check to Entercom for advertising;
     checks to other clients and checks to "Cash," Attorney
     Menard, or Derzon & Menard totaling $10,400, Attorney
     Menard violated SCR 20:8.4(c).

     Count 13: By falsely informing J.L.-M. that he had paid
     Athletic & Therapeutic Institute $12,491.77 and Blunt
     Orthopedic Clinic $7,623.75 on her behalf from the
     settlement proceeds in her case, Attorney Menard
     violated SCR 20:8.4(c).

     Count 14: By failing to promptly deliver $12,491.77 to
     Athletic & Therapeutic Institute and $7,623.75 to Blount
     Orthopedic Clinic pursuant to the Settlement Agreement,
     or to promptly disburse the balance ($9,115.52) of any
     remaining funds to J.L.-M. after settling the claims of
     Athletic & Therapeutic Institute and Blount Orthopedic
     Clinic for lesser amounts, Attorney Menard violated SCR
     20:1.15(e)(1).5

     Count 15: By failing to fully and accurately respond to
     J.L.-M.'s   request  for   information   regarding   the
     disbursement of her settlement funds to her creditors,
     including his failure to inform J.L.-M. that he had paid

     5   SCR 20:1.15(e)(1) provides:

          Upon receiving funds or other property in which a
     client has an interest, or in which a 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.

                                 12
                                                               No.   2018AP659-D


     only $8,000 to Athletic & Therapeutic Institute and
     $3,000 to Blount Orthopedic Clinic and that she was
     entitled to a refund totaling $9,115.52, Attorney Menard
     violated SCR 20:1.4(a)(4).6
     ¶31       The next client matter detailed in the amended complaint

involved Attorney Menard's representation of P.D. in a personal

injury case. Attorney Menard's records include a copy of a $50,000

check payable to the firm's client trust account in the P.D.

matter, but Attorney Menard has not identified the account into

which    the    $50,000   was   deposited   and   has    not   identified   any

disbursements made to P.D. from those funds.

     ¶32       On March 13, 2014, Attorney Menard deposited or directed

the deposit of a $75,000 check relating to the P.D. matter to the

firm's U.S. Bank business account.

     ¶33       Between March 13 and March 26, 2014, Attorney Menard

made numerous disbursements from the U.S. Bank business account,

including over $40,000 for advertising and payments to Attorney

Menard, his law firm, or cash.        Attorney Menard also disbursed two

checks totaling $23,000 to another client whose personal injury

case had been settled in December of 2013.              No funds belonging to

that client were ever deposited to the U.S. Bank business account.

     ¶34       The amended complaint alleged the following count of

misconduct with respect to Attorney Menard's representation of

P.D.:

     Count 16: By converting as much as $74,313.81 of P.D.'s
     two settlements between approximately July 31, 2012 and
     May 22, 2014, at least some of which was used to cover

     6 SCR 20:1.4(a)(4) provides: "A lawyer shall promptly comply
with reasonable requests by the client for information."

                                      13
                                                         No.   2018AP659-D


     business expenses, including advertising and payments to
     Attorney Menard, the firm, and "Cash," Attorney Menard
     violated SCR 20:8.4(c).
     ¶35   The next client matter detailed in the amended client

involved Attorney Menard's representation of T.R. in a worker's

compensation   matter.   On   February     4,   2015,   Attorney   Menard

deposited or directed the deposit of two checks to the U.S. Bank

business account in the T.R. case:       a $55,289.57 check payable to

T.R., which was not endorsed, and a $14,710.43 check payable to

Attorney Menard.   Prior to that deposit, the balance in the U.S.
Bank business account was $8,259.25.        That same day, there were

two electronic withdrawals from the U.S. Bank business account by

YP Advertising.    On February 6, 2015, a check for over $28,000

payable to the Wisconsin Department of Revenue cleared the U.S.

Bank business account.   By February 9, 2015, the business account

was overdrawn by $16.30, and none of T.R.'s funds remained in the

account.

     ¶36   The amended complaint alleged the following count of

misconduct with respect to Attorney Menard's representation of

T.R.:

     Count 17:    By converting T.R.'s $55,289.57 worker's
     compensation settlement between February 4, 2015 and
     February 9, 2015 to cover business expenses, including
     advertising and a payment to the Wisconsin Department of
     Revenue, Attorney Menard violated SCR 20:8.4(c).
     ¶37   The next client matter detailed in the amended complaint

arose out of Attorney Menard's representation of J.S. in a worker's

compensation   matter.   On   December    21,   2015,   Attorney   Menard
deposited or directed the deposit of a $31,326.31 check to the


                                 14
                                                    No.   2018AP659-D



U.S. Bank business account.       That amount represented Attorney

Menard's fees and costs in the matter.       On December 31, 2015,

Attorney Menard deposited or directed the deposit of a $95,637.56

check payable to J.S. to the business account.       Prior to this

deposit, there was $9,119.39 in the business account.

     ¶38   Between December 31, 2015 and January 6, 2016, over

$140,000 in transactions cleared the U.S. Bank business account,

including payments to the Milwaukee Athletic Club, Bank of America,

Chase, and GM Financial.

     ¶39   On January 6, 2016, Attorney Menard transferred $15,000

of J.S.'s funds from the U.S. Bank trust account to the U.S. Bank

business account.   By the close of business that day, the business

account was overdrawn and none of J.S.'s funds had been disbursed

to her.

     ¶40   Between January 7 and February 9, 2016, Attorney Menard

transferred $73,000 belonging in part to J.S. from the U.S. Bank

trust account to the U.S. Bank business account.     None of those

transfers were used to pay J.S.        The funds were all used for
business and personal purposes.

     ¶41   The amended complaint alleged the following count of

misconduct with respect to Attorney Menard's representation of

J.S.:

     Count 18:    By converting J.S.'s $95,637.56 worker's
     compensation settlement to cover business expenses,
     including advertising, a $35,843.08 payment to ADP
     relating to a 401k plan and a $25,500 check to his new
     law firm, Attorney Menard violated SCR 20:8.4(c).




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                                                             No.    2018AP659-D



     ¶42    The next client matter detailed in the amended complaint

involved Attorney Menard's representation of P.M., who is Attorney

Menard's uncle.     P.M. has a winter home in Florida.             In February

of 2014, he was struck by a car while he was mowing his lawn at

his home in Florida and suffered severe injuries requiring medical

and surgical treatment.

     ¶43    On   April   10,   2014,   P.M.   hired   Attorney      Menard   to

represent him in a personal injury action against the driver who

hit him. The parties entered into a contingent fee agreement which

provided that P.M. agreed to pay Derzon & Menard 33 1/3 percent of

whatever total sum was collected, plus costs and disbursements.

     ¶44    The driver had $1,000,000 in liability coverage through

State Farm.      P.M. denies that Attorney Menard informed him about

the policy limit.        Attorney Menard said he was concerned about

potential contributory negligence since there were reports that

P.M. had stepped into the road in front of the car while mowing

his lawn.    P.M. had no recollection of the accident and would not

be able to testify to rebut those reports.
     ¶45    In June 2014, State Farm offered to settle the case for

$325,000.   P.M. agreed Attorney Menard should attempt to negotiate

a higher settlement and, if there was not a higher offer, the

initial offer would be accepted.            Attorney Menard negotiated a

higher   settlement      figure   of   $500,000.      P.M.   accepted     that

settlement amount.

     ¶46    On July 3, 2014, State Farm issued a $500,000 check

payable to Derzon & Menard Attorneys at Law Trust Account and
mailed it to Attorney Menard.          The check was deposited in Derzon
                                       16
                                                                No.   2018AP659-D



& Menard's business account at U.S. Bank on July 8, 2014.                 Attorney

Menard did not inform P.M. of the receipt of the funds.                    He did

not disburse any portion of the settlement payment to P.M. or to

any third party on P.M.'s behalf.

     ¶47      On July 9, 2014, P.M. signed a release agreeing to the

$500,000 settlement.           Between July 8 and July 28, 2014, Attorney

Menard made numerous disbursements from the U.S. Bank business

account    for    business     and    personal   expenses    unrelated     to   his

representation of P.M.           By October 17, 2014, following numerous

deposits and disbursements unrelated to P.M.'s case, the balance

in the U.S. Bank business account was $131.93.                 By November 24,

2014, the balance of the business account was $16.96.                     Thus, by

November 24, 2014, Attorney Menard had converted $333,333.33 of

P.M.'s settlement funds.

     ¶48      From April 2015 through early 2018, P.M. repeatedly

contacted Attorney Menard by telephone and email inquiring about

the status of his settlement proceeds.                  Attorney Menard gave

excuses to P.M. as to why he was not able to disburse the funds.
     ¶49      P.M.'s    own    insurance      agreed   to   cover   his    medical

expenses. P.M.'s insurance carrier paid out $648,478.14 to medical

care providers on P.M.'s behalf, discharging most of the medical

bills   for      less   than    the   original    amount    billed,   which     was

$1,993,103.10.

     ¶50      Attorney Menard did not disburse any portion of the

$500,000 settlement as payment for any of P.M.'s medical bills.

     ¶51      In early 2018, P.M. hired Attorneys Lenz and Meadows as
successor counsel.        In July 2018, P.M. sued Attorney Menard, his
                                         17
                                                    No.   2018AP659-D



former firm, his current firm, and others to recover the settlement

proceeds to which he was entitled.      The case settled following

meditation.    The settlement is confidential.

     ¶52    The amended complaint alleged the following counts of

misconduct with respect to Attorney Menard's representation of

P.M.:

     Count 19: By depositing or directing the July 8, 2014
     deposit of a check in the amount of $500,000 in personal
     injury settlement proceeds for P.M. to his firm's U.S.
     Bank Business Account, rather than into the firm's trust
     account, Attorney Menard violated SCR 20:1.15(b)(1).

     Count 20: By failing to disburse settlement funds to
     P.M., Attorney Menard violated former SCR 20:1.15(d)(1)7
     and current SCR 20:1.15(e)(1).

     Count 21: By converting funds from P.M.'s State Farm
     settlement between July 8, 2014 and November 24, 2014,
     Attorney Menard violated SCR 20:8.4(c).

     Count 22: By failing to fully and accurately respond to
     P.M.'s request for reports on the status of his
     settlement    funds,    Attorney     Menard    violated
     SCR 20:1.4(a)(4).

     Count 23:   By failing to provide P.M. with a full
     accounting of his settlement funds upon their final



     7   Former SCR 20:1.15(d)(1) provided:

          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.

                                 18
                                                     No.   2018AP659-D


     distribution,   Attorney    Menard   violated    former
     SCR 20:1.15(d)(2), and current SCR 20:1.15(e)2.8
     ¶53    The amended complaint alleges two counts of misconduct

for commingling funds.   It alleges that between December 2012 and

February 2014, Attorney Menard deposited or directed the deposit

of at least 72 checks to the Park Bank business account that were

payable to the firm's trust account, to a specific client, to the

firm and a specific client or a third party.         Those deposits

totaled $1,801,858.13.

     ¶54    Between March 2014 and September 2016, Attorney Menard

deposited or directed the deposit of at least 102 checks to the

U.S. Bank business account that were payable to the firm's trust

account, to a specific client, to the firm and a specific client

or a third party.   Those 103 deposits total $2,806,497.51.

     ¶55    Attorney Menard admitted under oath in an interview

conducted by the OLR that the checks deposited to the Park Bank

business account were more likely than not all attorney fee checks

from worker's compensation cases.     He also admitted under oath he

did not keep track of whose funds were deposited to the business
account and that he would use funds in that account for his own

purposes.

     ¶56    The amended complaint alleged the following counts of

misconduct with respect to Attorney Menard's commingling of funds:

     8 SCR 20:1.15(d)(2) was renumbered as SCR 20:1.15(e)(2). The
text of the rule was not changed and provides:        "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."

                                 19
                                                      No.   2018AP659-D


    Count 24: By depositing or directing the deposit of as
    many as 72 checks totaling $1,801,858.13 to the Park
    Bank Business Account between December 2012 and February
    2014, which checks were payable to the firm's trust
    account, specific clients, the firm and a specific
    client, or a third party, Attorney Menard violated
    SCR 20:1.15(b)(1).

    Count 25: By depositing or directing the deposit of as
    many as 103 checks totaling $2,806,497.51 to the U.S.
    Bank Business Account between March 2014 and September
    2016, which checks were payable to the firm's trust
    account, to specific clients, the firm and a specific
    client, a third party, or which otherwise constituted
    trust     property,    Attorney     Menard    violated
    SCR 20:1.15(b)(1).

    Count 26:    By conducting 46 telephone and internet
    transactions in his trust accounts at Park Bank and U.S.
    Bank between January 1, 2013 and February 16, 2016,
    Attorney Menard violated former SCR 20:1.15(e)(4)b. and
    c.9
    ¶57    Finally, the amended complaint alleged additional trust

account violations as follows:

    Count 27: By failing to preserve transaction registers
    and client ledgers for at least six years after the



    9   Former SCR 20:1.15(e)(4)b. and c. provided:

         b. No deposits or disbursements shall be made to or
    from a pooled trust account by a telephone transfer of
    funds.   This section does not prohibit any of the
    following:

           1. wire transfers.

         2. telephone transfers between non-pooled draft and
    non-pooled non-draft trust accounts that a lawyer
    maintains for a particular client.

         c. A lawyer shall not make deposits to or
    disbursements from a trust account by way of an Internet
    transaction.

                                 20
                                                   No.   2018AP659-D


    termination of representation, Attorney Menard violated
    former SCR 20:1.15(e)(6).10

    Count 28: By failing to produce transaction registers
    and client ledgers for funds received in trust, despite
    requests by the OLR on July 5, 2017, July 26, 2017, and
    July    31,    2017,     Attorney    Menard    violated
    SCR 20:1.15(g)(2).11

    Count 29:    By maintaining trust account records by
    computer between at least December 1, 2012 and December
    31, 2015, and failing to regularly back up those records,
    Attorney Menard violated former SCR 20:1.15(f)(4)a.12

    Count 30: By failing to print a copy of the transaction
    register and client ledgers for the Derzon & Menard Trust




    10 Former SCR 20:1.15(e)(6) provided:       "A lawyer shall
maintain complete records of trust account funds and other trust
property and shall preserve those records for at least 6 years
after the date of termination of the representation."
    11   SCR 20:1.15(g)(2) 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.
    12 Former SCR 20:1.15(f)(4)a. provided:        "A lawyer who
maintains trust account records by computer shall maintain the
transaction register, client ledgers, and reconciliation reports
in a form that can be reproduced to printed hard copy. Electronic
records must be regularly backed up by an appropriate storage
device."

                                 21
                                                                 No.    2018AP659-D


       Account every 30 days, Attorney Menard violated former
       SCR 20:1.15(f)(4)b.13
       ¶58   In his report, the referee noted that a number of

witnesses testified at the hearing and, in the referee's opinion,

the most convincing witness was Mary Hoeft Smith, the former Trust

Account Program Administrator for the OLR, who is now retired.

Ms. Smith testified that Attorney Menard was unable to produce the

required trust account records, but he did produce voluminous

business account records.          She testified it was a common practice

for him to move client trust funds into his business account and

then use those funds to pay "very hefty expenses for things like

advertising, radio, and billboards."                 She described this as a

practice of "robbing Peter to pay Paul" and using funds belonging

to one client in order to pay back a client who was previously the

victim of a conversion by Attorney Menard.             She testified that the

matters that were charged in this case were only the largest of

many, many conversions and in her opinion "virtually every client

whose funds went into the business account were converted."

       ¶59   The referee noted that J.L.-M. testified by telephone
from Colorado and the referee found her to be intelligent, honest,

and straightforward.        J.L.-M. testified she felt a lot of betrayal

from    Attorney   Menard    and   that   it   had    been   a   very   harrowing

experience.



       Former SCR 20:1.15(f)(4)b. provided: "In additional to the
       13

requirements of sub. (f)(4)a., the transaction register, the
subsidiary ledger, and the reconciliation report shall be printed
every 30 days for the IOLTA account. The printed copy shall be
retained for at least 6 years, as required under sub. (e)(6)."

                                       22
                                                                        No.    2018AP659-D



      ¶60    The referee noted that P.M., Attorney Menard's 71-year-

old uncle, also testified and although the matter has been resolved

and   P.M.   has    no    further      claim       for   restitution,         the   entire

experience has left a bad taste in P.M.'s mouth.

      ¶61    The    referee      found      that    Attorney     Menard       "gave     the

impression of not being entirely trustworthy."                        The referee said

Attorney     Menard      felt   he    was       entitled    to   the    full    $500,000

settlement proceeds from his uncle's settlement and that his uncle

was entitled to nothing.             The referee said "this assertion lacked

a rational basis and was a rather cold-hearted way to treat a

family   member.          It    showed      a    distinct    lack      of     remorse    on

Respondent's       part   in    depriving         his    uncle   of    his    settlement

proceeds."

      ¶62    The referee also noted that Attorney Menard claimed that

each of his clients gave him a power of attorney to do whatever he

wanted with their money and that included depositing the money

into the business account and using it for whatever purposes

Attorney Menard wanted.           The referee said:

      Frankly, I found it astonishing that an attorney would
      ask clients to sign a power of attorney allowing him to
      use their settlement money for the attorney's business
      purposes, and also apparently thought this practice
      would absolve him of the Supreme Court's trust account
      requirements. Interestingly, Respondent never produced
      any of those powers of attorney as exhibits at the
      hearing. (Emphasis added.)
      ¶63    The referee said Attorney Menard acknowledged that he

was sloppy and "crappy" in regards to his accounting practices but




                                            23
                                                               No.    2018AP659-D



said "a revocation would ruin me and would ruin everything that

I've worked for 30 years."

     ¶64   The referee said that the evidence revealed that over at

least a six-year period, Attorney Menard converted over $1,000,000

in client funds.     The referee said additionally, between December

2012 and September 2016, Attorney Menard deposited as many as 175

checks made out to clients, to his trust account, or to third

parties, all of which should have gone into the trust account,

into his business accounts and these out-of-trust deposits at two

different banks totaled over $4,000,000.

     ¶65   After considering a variety of cases cited by both

parties,   the   referee   said     this   case   was   similar       to   In    re

Disciplinary     Proceedings   Against     Weigel,      2012     WI   124,      345

Wis. 2d 7, 823 N.W.2d 798.         Attorney Weigel was charged with ten

counts of misconduct involving failure to maintain proper trust

account records and converting funds belonging to clients.                      He

claimed the trust account violations already existed when the

former founding member of his law firm was bought out by Attorney
Weigel and others.     At times, the trust account may have been out

of balance as much as $1,000,000, but by the time Attorney Weigel

was charged the out of balance amount was down to $100,000.

     ¶66   The   referee   noted    that   Attorney     Weigel    claimed,       as

Attorney Menard does here, that the OLR did not present testimony

from a client or third party demonstrating an actual monetary loss.

Therefore, he argued that the OLR had failed to prove conversion.

The referee noted that this court disagreed, noting that an
attorney must hold the property of others with the care required
                                      24
                                                                No.     2018AP659-D



of   a    professional    fiduciary.         This   court   described    Attorney

Weigel's conduct, just as Mary Hoeft Smith did here, as "robbing

Peter to pay Paul," and this court revoked Attorney Weigel's

license to practice law.

         ¶67   The referee said that the conduct in Weigel is almost on

all fours with the conduct involved here and in both cases, over

an extended period of time, client trust funds were used as slush

funds to pay off other clients, firm expenses, or whatever was

most pressing at the moment.             The referee said that Attorney

Menard's       trust   accounts,   as   the    Weigel   trust   account,      were

continuously overdrawn or out of trust.                 The referee said the

amount converted here, well over $1,000,000, is in the same order

of magnitude as in Weigel, and likely represents just the tip of

the iceberg.       In addition, the referee noted that over $4,600,000

was out of trust over a span of four years.                 The referee agreed

with the OLR that revocation was the appropriate remedy.                 He said:

         The scope of Respondent's conduct in playing fast and
         loose with client money is simply breathtaking. Proper
         trust account records were never kept; money belonging
         to clients was commingled with that of other clients and
         used to pay vast sums in law firm and personal expenses;
         clients were not paid in a timely basis and often did
         not get paid until they complained; one client
         (ironically Respondent's uncle) was never paid at all –
         under some misguided theory that the attorney was
         entitled to the full proceeds of the settlement – and
         had to sue his own nephew for the nonpayment.

         This is far-reaching, deplorable and disreputable
         conduct. It reflects poorly on the practice of law in
         general and has jaded those clients that Respondent was
         to have served.    This is clearly not the way lawyers
         should conduct themselves. Jeopardizing over $1,000,000
         of client money on an extended 'rob Peter to pay Paul'

                                        25
                                                                No.       2018AP659-D


     scheme is totally unacceptable.                So is failing to keep
     over $4,600,000 in trust.
     ¶68   In   addition     to    recommending       revocation     of    Attorney

Menard's license, the referee recommended that Attorney Menard be

ordered to make restitution as follows:

          To C.M. the sum of $459.58

          To B.H. the sum of $5,000.32

          To J.B. the sum of $12,648.44

          To J.L.-M. the sum of $4,346.57

          To P.D. the sum of $1,100

          To J.S. the sum of $74,137.58 (less any or all of the

           $5,395.72 amount which Attorney Menard can demonstrate

           was paid on behalf of J.S. for legitimately due and owing

           medical expenses).

     ¶69   Finally, the referee recommended that Attorney Menard

pay the full costs of the proceeding.

     ¶70   Attorney        Menard      has      appealed       the        referee's

recommendation of revocation as the appropriate sanction.                          He

asserts that appropriate discipline should be a suspension between
18 and 24 months.

     ¶71   Attorney       Menard    notes     that     he   testified       at    the

evidentiary     hearing    that     there    were    several   reasons      why    he

developed the practice of obtaining client consent to commingle

funds in his business account rather than depositing them in trust,

and for obtaining durable power of attorney forms from all clients

in order to do so in the first place.                He says he testified that
some of his clients did not have bank accounts and they asked him


                                       26
                                                      No.   2018AP659-D



to cash checks and pay portions of the proceeds on demand, while

other clients were afraid that depositing a large settlement check

into their own accounts might upset their SSDI or Medicare status.

He says still others felt overwhelmed with the prospect of having

to resolve unpaid medical expenses and liens on their own out of

the settlement proceeds and Attorney Menard agreed to handle those

tasks on his clients' behalf.        He says during the pertinent

timeframe, his law business was generally good and he never

perceived his accounting practices as "robbing Peter to pay Paul."

     ¶72   Attorney Menard says the evidence showed that none of

his clients or former clients were harmed by his conceded trust

account violations, with the exception of J.S., who he acknowledges

is still owed $60,000 and who recently filed a claim with the

Wisconsin Lawyers' Fund for Client Protection.      However, he says

he "was willing to pay whenever she requested" and she had stopped

making requests.

     ¶73   Attorney Menard argues that "his business practices were

uniquely set up in such a way to create financial flexibility for
the benefit of his clients, and were set up as such with the

expressed consent of his clients."      He says the referee fails to

discuss or simply overlooked the following:

          Attorney Menard has never previously been the subject of

           a disciplinary proceeding.

          Attorney Menard's bookkeeping practices were previously

           reviewed by the OLR in the context of a client complaint

           and were found to be satisfactory.


                                27
                                                              No.   2018AP659-D



            Mary Hoeft Smith admitted her investigation was both

             rushed and incomplete.

            Each and every client identified had signed a durable

             power of attorney and consent form for their funds to be

             commingled.

            With the exception of P.M., which the matter has been

             resolved, not a single client at issue has made a claim

             for restitution to date.

       ¶74   Attorney Menard argues that the OLR fell short of proving

that the alleged amounts that the referee recommends be paid as

restitution were in fact owed. He complains that the OLR presented

evidence inferring that, if Attorney Menard could not produce

documentation proving full payment of settlement proceeds, when it

was abundantly clear that his recordkeeping practice was sloppy at

best, then he must owe restitution in the presumed, unproven

deficit amount, irrespective of the fact that no one, except P.M.,

whose case has been settled, had made a claim against Attorney

Menard for restitution owed.         Attorney Menard again acknowledges
that he is a poor record keeper, but he says poor recordkeeping

and    the   absence    of   documentation   available   to    confirm     full

satisfaction of settlement proceeds owed to clients is not the

same    as    clear,    satisfactory,      and   convincing     evidence     of

nonpayment.

       ¶75   Attorney Menard complains that the referee unfairly

compared his case to Weigel, in which the attorney's license was

revoked.     He says:


                                      28
                                                                   No.     2018AP659-D


      [H]is case is uniquely situated in that the evidence
      showed that his clients were made fully aware of the
      commingling at issue. In most, if not all cases, the
      evidence showed that his clients provided consent and/or
      signed waivers permitting Menard to hold on to their
      settlement proceeds, satisfy outstanding medical/third-
      party liens, and pay out client's shares in lump sum
      allocations on an 'as needed' basis.
He also says unlike Weigel, he did keep records and settlement

statements "providing a detailed picture of each and every client

settlement and accounting of funds commingled, albeit, sloppy,

unorganized records."         Id.

      ¶76    Attorney Menard argues the fact he kept all of his

clients and former clients informed about his accounting practices

and the commingling of funds for purposes of resolving medical

bills,      negotiating      subrogation      liens,      and     paying       clients

structured settlement proceeds should have been a factor taken

into consideration by the referee but it was not.

      ¶77    Rather   than    revocation,      as   was    ordered       in    Weigel,

Attorney Menard argues that his case is more similar to In re

Disciplinary      Proceedings       Against     Voss,      2014     WI        75,   356

Wis. 2d 382, 850 N.W.2d 190.            The complaint in Voss alleged 11

counts of misconduct arising from Attorney Voss' work as a court-

appointed guardian.       Rather than setting up a guardianship account

to handle his clients' income and expenses, Attorney Voss used a

personal checking account not subject to interest accrual as a

standard IOLTA account would have been, and he did not establish

a   separate    fiduciary     account    for   his     clients'     assets.          In

suspending Attorney Voss' license for 18 months, this court held
that in spite of the fact it was Attorney Voss' third instance of

                                        29
                                                           No.   2018AP659-D



discipline, that the conduct went on for a significant period of

time and that the client at issue was vulnerable, revocation was

reserved for the most egregious cases and Attorney Voss' conduct,

although serious, did not rise to that level.

     ¶78   The OLR argues that revocation is indeed appropriate for

Attorney Menard's admitted 30 counts of misconduct. The OLR points

out that although Attorney Menard claims he obtained powers of

attorney or some other agreement from his clients purporting to

authorize him to use their money as he saw fit, no such documents

were ever introduced into evidence.         In addition, the OLR says

even if Attorney Menard had induced his clients to sign such

documents, this would amount to nothing more than an attempt to

circumvent this court's clear cut ethical rules, and even Attorney

Menard confirmed that his scheme did not change his underlying

ethical obligations or excuse the underlying misconduct.

     ¶79   As   for   Attorney   Menard's   claim   that   one   reason   he

deposited client money into his business account was to shield

clients from negative consequences in relation to their government
benefits, the OLR says even if Attorney Menard was holding client

funds to shield them from government discovery, he fails to explain

why he could not have held that money in his trust account rather

than his business account.        In addition, the OLR says Attorney

Menard does not explain why this alleged motivation required or

allowed him to convert client funds to his own use.        It says "under

his theory the clients needed their money hidden, not spent by

their attorney." In addition, the OLR says this claimed motivation
smacks of fraud.      The OLR asks whether Attorney Menard was hiding
                                    30
                                                                No.    2018AP659-D



client funds in his bank account so that government entities would

not   factor   those    sums    into   his     clients'    benefit    eligibility

determination.     If so, it says it was not his place to assist

clients in circumventing government benefit eligibility standards.

      ¶80   The OLR says another justification used by Attorney

Menard is the fact that an alleged former client named Jessup, who

he claims filed a grievance against him, resulted in an OLR

investigation that ultimately resulted in no discipline.                  The OLR

says this purported "evidence" provides no defense whatsoever

since there is no evidence in the record as to the existence or

facts of any Jessup grievance; what investigation, if any, the OLR

did; or what the OLR advised or did not advise Attorney Menard

regarding the matter.          The OLR says it is barred by this court's

rules from even confirming or denying that any client named Jessup

ever filed a grievance.          It notes that upon its objection at the

evidentiary hearing, the referee confirmed he would not factor the

alleged Jessup grievance into his decision.

      ¶81   The OLR says Attorney Menard's conduct is not analogous
to that in the         Voss case because Attorney Menard repeatedly

conceded he did use client funds for his own personal or business

needs and, unlike Voss, the conversions here involved at least 12

clients over the course of many years.            In addition, the OLR notes

Attorney Menard's conversions total over $1,000,000 and his out of

trust deposits exceeded $4,000,000.

      ¶82   The OLR says the referee appropriately concluded that

this case was analogous to Weigel.              The OLR notes that Attorney
Weigel's    license     was     revoked    despite    no    finding    that   his
                                          31
                                                                  No.   2018AP659-D



conversions were to pad his own pocket, whereby in this case

Attorney Menard repeatedly converted funds not only to pay clients

and others in client matters, he also converted funds to his own

use.

       ¶83   The   OLR    also   argues    that   the   referee    appropriately

ordered restitution in the amounts set forth above. While Attorney

Menard complains that the OLR's restitution request shifts the

burden of proof on restitution to him, the OLR says it repeatedly

asked Attorney Menard for documents to support any payments he

made to or on behalf of clients. It says Mary Hoeft Smith conducted

her analysis based on what Attorney Menard produced and what she

received from his banks.          The OLR says while Attorney Menard is

correct that SCR 22.38 requires the OLR to prove misconduct by

evidence that is clear, satisfactory, and convincing, he fails to

note the impact of SCR 22.39, which shifts the burden of proof to

a respondent who fails to produce trust account records to the

OLR, or provide an accounting or fiduciary property to the OLR by

creating a presumption of trust account misconduct.                      See SCR
22.39(2).     The OLR says Attorney Menard did not provide it with

trust account records or accountings, and Mary Hoeft Smith had to

recreate those records.          The OLR says, "Menard did not provide a

scintilla of documentary evidence, much less evidence that is

clear, satisfactory or convincing to rebut OLR's restitution proof

or any presumption permitted under SCR 22.39."

       ¶84   The OLR says Attorney Menard mischaracterizes Mary Hoeft

Smith's testimony about her investigation by calling it "rushed
and incomplete."         The OLR says she never said any such thing and
                                          32
                                                                No.    2018AP659-D



to the contrary she testified that the OLR prioritized promptly

presenting the case to the Preliminary Review Committee with some

clients rather than waiting to conduct an exhaustive audit of each

and every one of Attorney Menard's clients.

     ¶85    The OLR concludes by saying that the testimony at the

hearing    was   clear,    unequivocal,      and   compelling   that    Attorney

Menard used his clients' funds as his own personal slush fund or

piggy bank rather than holding them in trust as required by Supreme

Court Rules.     It says his scheme displayed an utter disregard for

the most fundamental of an attorney's fiduciary obligations:                  the

duty to hold his clients' funds in trust.             It says his "rob Peter

to pay Paul" pyramid scheme violates a most basic and important

part of the Supreme Court Rules.

     ¶86    In his reply brief, Attorney Menard continues to argue

that he tried to create a flexible and transparent accounting

system for the benefit of his clients and with their expressed

consent.    He also argues that the previous Jessup investigation

had an effect on his perception that his accounting practices were
acceptable and creates at least an explanation for why those

practices continued to be used.          He says he has learned a painful

lesson from this experience and is not at risk of repeating it.

He asks the court to impose a suspension between 18 and 24 months.

     ¶87    A referee's findings of fact will not be set aside 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.              This court is free to impose
whatever    discipline     it   deems   appropriate,     regardless      of   the
                                        33
                                                        No.    2018AP659-D



referee's recommendation.       See In re Disciplinary Proceedings

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

     ¶88   Attorney Menard stipulated to 30 counts of misconduct.

The record clearly supports the referee's findings of fact, based

on that stipulation, that the OLR met its burden of proof on all

of those counts.

     ¶89   Turning to the appropriate sanction, upon careful review

of the matter, we agree with the referee that revocation of

Attorney   Menard's   license   is   appropriate.     Although    no   two

disciplinary cases are identical, we agree with the referee's

assessment that this case is very similar to Weigel.          Here, as in

Weigel, monies belonging to one client were routinely used to pay

off other clients as well as firm and personal expenses.           As in

Weigel, in virtually every client matter he handled, Attorney

Menard "robbed Peter to pay Paul."        As we said in Weigel:

     [I]t would be difficult to imagine a more aggravated
     pattern of misconduct than the one presented here. We
     agree with the OLR that any sanction less than revocation
     would undermine the public's confidence in the honesty
     and integrity of the bar. Revocation . . . is the only
     sanction proportionate to the seriousness of the
     misconduct, and revocation will also protect the public,
     the courts, and the legal system, and it will deter other
     lawyers from engaging in similar misconduct.      Weigel,
     345 Wis. 2d at 39.
     ¶90   We also agree with the referee's recommendations that

Attorney Menard should be assessed the full costs of the proceeding

and that he should be ordered to make restitution to the clients

mentioned above.




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       ¶91   IT IS ORDERED that the license of Robert C. Menard to

practice law in Wisconsin is revoked, effective the date of this

order.

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

this   order,   Robert   C.   Menard    shall   make   restitution   to   the

following clients:

            To C.M. the sum of $459.58

            To B.H. the sum of $5,000.32

            To J.B. the sum of $12,648.44

            To J.L.-M. the sum of $4,346.57

            To P.D. the sum of $1,100

            To J.S. the sum of $74,137.58 (less any or all of the

             $5,395.72 amount which Attorney Menard can demonstrate

             was paid on behalf of J.S. for legitimately due and owing

             medical expenses).

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

this order, Robert C. Menard shall pay to the Office of Law

Regulation the costs of this proceeding, which are $18,191.42 as
of October 25, 2019.

       ¶94   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

       ¶95   IT IS FURTHER ORDERED that, to the extent he has not

already done so, Robert C. Menard shall comply with the provisions

of SCR 22.26 concerning the duties of an attorney whose license to

practice law has been revoked.


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    ¶96   IT IS FURTHER ORDERED that the temporary suspension of

Robert C. Menard's license to practice law, which was issued on

March 20, 2020, is hereby lifted.

    ¶97   Rebecca Frank Dallet, J., did not participate.




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