                                                             2014 WI 115

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2014AP1622-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Joshua F. Stubbins, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Joshua F. Stubbins,
                                  Respondent.



                           DISCIPLINARY PROCEEDINGS AGAINST STUBBINS

OPINION FILED:          October 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                   2014 WI 115
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.    2014AP1622-D


STATE OF WISCONSIN                        :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Joshua F. Stubbins, Attorney at Law:

Office of Lawyer Regulation,                                     FILED
           Complainant,
                                                            OCT 14, 2014
      v.
                                                               Diane M. Fremgen
                                                            Clerk of Supreme Court
Joshua F. Stubbins,

           Respondent.




      ATTORNEY    disciplinary     proceeding.      Attorney's          license

revoked.



      ¶1   PER CURIAM.     In this matter, we consider the petition

of Attorney Joshua F. Stubbins for the consensual revocation of

his license to practice law in Wisconsin pursuant to Supreme

Court Rule (SCR) 22.19.       Attorney Stubbins is the subject of

ongoing investigations by the Office of Lawyer Regulation (OLR)

regarding four separate client matters.          He acknowledges in his

petition   that   he     cannot   successfully      defend      against       the
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misconduct        allegations     that       have    arisen     out      of    those

investigations.

      ¶2    Attorney Stubbins was admitted to the practice of law

in this state in January 2007.               During the time period relevant

to   the   investigations,       Attorney     Stubbins   was    employed      as    an

associate attorney with a Milwaukee law firm, where he worked

primarily    in    the   areas   of    defending     consumer    protection        and

products liability claims.            Attorney Stubbins has not previously

been the subject of professional discipline.                     On October 31,

2013, Attorney Stubbins's license was administratively suspended

for failure to pay bar dues and assessments and for failure to

submit an annual trust account certification.                   His license was

also subsequently suspended for failure to comply with mandatory

continuing legal education reporting requirements.                     His license

has remained administratively suspended up to the date of this

opinion.

      ¶3    The     OLR's   summary      of    the    pending     investigations

involving Attorney Stubbins that is attached to the petition for
consensual revocation indicates that the OLR has received three

grievances regarding four separate client matters.                     They will be

briefly summarized below.

      ¶4    The     first   investigation       involves      E.W.,     who   was    a

partner in the law firm where Attorney Stubbins worked.                         E.W.

requested that the firm represent him in foreclosing on a land

contract for a piece of real property that E.W. and his wife

owned.     In approximately the spring of 2009, the firm assigned


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Attorney    Stubbins      to     work    on       the    foreclosure         of     the     land

contract.

     ¶5     After    Attorney      Stubbins            began   working       on    the    first

foreclosure,      E.W.    and    his     wife      entered       into    a     second       land

contract    for     the   property.           The       buyers    under        this      second

contract also defaulted.                Consequently, Attorney Stubbins was

directed to begin pursuing another foreclosure action against

these second buyers.

     ¶6     Attorney Stubbins was to have filed the foreclosure

complaints by October 2009.               He did not do so, however, until

July 2011.        During the intervening nearly two years, Attorney

Stubbins made multiple misrepresentations regarding the status

of   the    matters,      including       falsely         suggesting         that     certain

actions,     such    as    the     service         of     a    complaint,          had      been

accomplished.        By   his     evasion         of    certain      questions        and    his

misrepresentations, Attorney Stubbins led E.W. to believe that

foreclosure    actions      had    been       initiated        and    were        proceeding.

Attorney Stubbins, however, filed the two foreclosure complaints
in July 2011 only after E.W. had made numerous requests for

information       about    the    status          of     the   foreclosure           actions.

Shortly after the complaints were filed, E.W. terminated the law

firm's representation on both foreclosure matters and retained

other counsel.1



     1
       At some point during the time Attorney Stubbins                                       was
working on the foreclosure matters, E.W. left the law firm.


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      ¶7     The OLR's investigation summary indicates that it is

investigating possible violations of SCRs 20:1.3, 20:1.4(a)(3),

20:1.4(a)(4), and 20:8.4(c) in this matter.

      ¶8     The second and third client representations at issue

have been addressed in a consolidated OLR investigation.                                      Both

of those matters were brought to the OLR's attention by the

former general counsel of the law firm.

      ¶9     In     the      second     client        representation,          the    law     firm

represented a company that was a holdover tenant on a commercial

lease.      The firm assigned Attorney Stubbins to terminate the

tenancy, return the keys to the landlord, and assist with the

computation of damages connected to rent payments during the

holdover period.             Attorney Stubbins failed to return the keys to

the landlord, which led to the client being held responsible for

seven months of double rent charges and the law firm having to

make a claim on its malpractice insurance policy.                                   In addition

to   not    doing       everything      that      he   was    tasked      to    do,    Attorney

Stubbins      also       billed       the    client       for      work   that        he     never
performed.         This ultimately caused the law firm to reduce the

client's bill by $11,000.

      ¶10    In the third client representation, the firm assigned

Attorney Stubbins to defend an auto finance company against a

claim      that    the       finance    company         had     improperly          seized    the

plaintiff's vehicle and then had sold it at auction.

      ¶11    During          the    pretrial      phase       of    the   litigation,          the

plaintiff's        counsel         served    on   Attorney         Stubbins     a    notice     of
deposition        for    a    finance       company     representative.              After     the
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plaintiff's        counsel       sent    a      subsequent         confirming        letter,

Attorney     Stubbins      responded      that     he      had    lost    the     deposition

notice and would be unable to appear on the scheduled date.                                The

plaintiff's       counsel       thereafter       scheduled        the    representative's

deposition        for   three     separate       subsequent        dates.         Each    time

Attorney     Stubbins      falsely       told     plaintiff's           counsel    that    the

client representative was ill and could not be deposed.                               On the

last occasion, Attorney Stubbins went so far as to claim that

the client representative was seriously ill and required kidney

dialysis.         When the deposition finally took place, the client

representative          testified     that      she    had       been    unaware     of    the

previously scheduled dates for her deposition, that she did not

have any kidney-related health problems, and that she was not on

dialysis.

    ¶12      Attorney Stubbins also made other misrepresentations

to opposing counsel.            For example, he told opposing counsel that

he would produce certain information in discovery but that he

could not do so yet because the client had not yet provided that
information to him.             The client subsequently acknowledged that

it had provided the information at issue to Attorney Stubbins

prior to his statement regarding the inability to produce.

    ¶13      The    circuit      court    denied       a    summary       judgment    motion

drafted      by    Attorney       Stubbins       and       granted       partial     summary

judgment as to liability to the plaintiff, leaving only the

issue   of    damages      to    be   tried.       Attorney        Stubbins       failed    to

advise his client of these rather significant developments in
the client's case.
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    ¶14       In    addition     to       filing    the    partial   summary     judgment

motion, the plaintiff also filed a motion for sanctions against

Attorney Stubbins.          The circuit court granted the motion, which

ultimately     resulted         in    a    sanction       of   $9,600   being    paid    by

Attorney Stubbins personally.                 Attorney Stubbins also failed to

advise his client that he had been sanctioned by the circuit

court.

    ¶15       Finally, Attorney Stubbins filed a notice of appeal

from the grant of partial summary judgment to the plaintiff

without having obtained the client's consent to do so.                                  The

appeal was subsequently dismissed by the court of appeals.

    ¶16       The OLR states that for the second and third client

matters,       it     is      investigating           potential         violations        of

SCRs 20:1.3,        20:1.4(a),            20:3.4,     20:4.1(a),        20:8.4(c),       and

20:8.4(f).

    ¶17       In    the    final      client       representation,       the    law     firm

represented a defendant in a civil action.                        A mediation session

was scheduled, but Attorney Stubbins failed to advise the client
of that fact.        He attended the mediation session on the client's

behalf   without      being      accompanied         by    a   client   representative.

The mediation resulted in a written settlement agreement, which

Attorney Stubbins signed on the client's behalf even though he

had no authority from the client to enter into a settlement

agreement.           Although        Attorney       Stubbins      had    a     number    of

subsequent email communications with the client over the next

couple   of    weeks,      he    failed       to    inform     the   client     that    the
mediation session had occurred and that he had entered into a
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settlement agreement on behalf of the client.                        Indeed, Attorney

Stubbins led the client to believe that the mediation had not

yet occurred.

       ¶18    Attorney Stubbins's employment with the law firm ended

several weeks after the mediation.                   The law firm and the client

subsequently learned that Attorney Stubbins had settled the case

without the client's knowledge or consent.                          The law firm was

able to re-open the case and to settle the matter at a second

mediation session on terms acceptable to the client.

       ¶19    The OLR states that potential violations arising out

of     this   matter      include   violations            of    SCRs 20:1.2,           20:1.3,

20:1.4(a), 20:4.1(a), 20:8.4(c), and 20:1.16(a)(2).

       ¶20    In    its       recommendation         in        support     of         Attorney

Stubbins's petition, the OLR acknowledges that Attorney Stubbins

has never been disciplined previously, but it emphasizes that

Attorney      Stubbins     repeatedly       lied      to       clients,        to     opposing

counsel, and to members of his own law firm.                       He also engaged in

a course of billing that was misleading and unethical.                                 The OLR
also    points     to   two    consensual       revocation         petitions          that   it

contends involved misconduct that was similar or proportionate

to the misconduct committed by Attorney Stubbins.                               See, e.g.,

In re    Disciplinary       Proceeding      Against        Erlandson,          2005 WI 143,

286 Wis. 2d 53,         704 N.W.2d 910      (granting           consensual          revocation

petition      involving       allegations       of   ten       potential       violations);

In re    Disciplinary       Proceedings         Against        Whitnall,       2003 WI 146,

267 Wis. 2d 28,         673 N.W.2d 674      (granting           consensual          revocation
petition involving six potential ethical violations).                                  The OLR
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asserts that Attorney Stubbins's behavior was a reflection of

his character and demonstrates that he is not fit to engage in

the practice of law in Wisconsin.

       ¶21    The     OLR    further       states       that    it    is        not     seeking

restitution for any of Attorney Stubbins's misconduct.                                While it

did find evidence that Attorney Stubbins had overbilled a client

in one of the four matters, there was no evidence that Attorney

Stubbins      himself       had   ever    been     in    possession        or    control      of

client funds, and the law firm subsequently reduced the client's

bill.

       ¶22    As noted above, Attorney Stubbins's petition states

that     he    cannot        successfully          defend      himself          against      the

misconduct        allegations         that     have      arisen      from         the     OLR's

investigations.         In the petition Attorney Stubbins asserts that

he is freely, voluntarily, and knowingly (1) giving up his right

to contest the OLR's allegations of misconduct and (2) asking

for the revocation of his license to practice law in this state.

He also acknowledges that he has the right to retain counsel in
this matter, but states that he has chosen to represent himself.

Finally,      Attorney       Stubbins      states       that   he    is    aware        of   the

consequences of the revocation of his license, including his

obligation to follow the requirements of SCR 22.26 and the need

to     complete     the      formal      reinstatement         process          outlined     in

SCRs 22.29 through 22.33 in the event that he would ever seek

the reinstatement of his license.

       ¶23    After    reviewing         the   petition,       the   OLR's       summary      of
misconduct        allegations       under      investigation,             and     the     OLR's
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recommendation, we conclude that the petition should be granted.

As shown by the OLR's summary of its investigations, Attorney

Stubbins's repeated misrepresentations to his clients, to his

law firm, and to opposing counsel; his billing for work that he

never     performed;     his     lack     of   diligence;          and     his       multiple

decisions to take legally significant actions (e.g., filing an

appeal,     settling     a    lawsuit,    etc.)   on       behalf    of        his    clients

without their knowledge or consent demonstrates that Attorney

Stubbins does not possess the necessary character to hold a

license to practice law in this state.                      These were not one or

two   isolated     instances,       but    rather      a    pattern        of     deceitful

statements and unethical conduct.

      ¶24    Consistent with the OLR's recommendation, we do not

impose any restitution obligation on Attorney Stubbins.                                While

his conduct certainly harmed his clients, there is not a proper

basis in this matter for an order requiring him to return money

or property that he received from his clients.

      ¶25    IT IS ORDERED that the petition for consensual license
revocation is granted.

      ¶26    IT IS FURTHER ORDERED that the license of Joshua F.

Stubbins is revoked, effective the date of this order.

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

already     done   so,       Joshua F.    Stubbins         shall    comply        with    the

provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been revoked.




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