                                                              2014 WI 18

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP2836-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Charles J. Labanowsky, III, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Charles J. Labanowsky, III,
                                  Respondent.



                          DISCIPLINARY PROCEEDINGS AGAINST LABANOWSKY

OPINION FILED:          March 26, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                          2014 WI 18
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2013AP2836-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Charles J. Labanowsky, III, Attorney at
Law:

Office of Lawyer Regulation,                                           FILED
              Complainant,                                        MAR 26, 2014
      v.                                                             Diane M. Fremgen
                                                                  Clerk of Supreme Court
Charles J. Labanowsky, III,

              Respondent.




      ATTORNEY      disciplinary       proceeding.        Attorney's          license

revoked.


      ¶1      PER CURIAM.      Attorney Charles J. Labanowsky III has

filed a petition for consensual revocation of his license to

practice     law   in    Wisconsin   pursuant   to     SCR    22.19.1        Attorney
      1
       SCR 22.19 states as follows:                  Petition for consensual
license revocation.

           (1) An attorney who is the subject of an
      investigation   for   possible  misconduct   or   the
      respondent in a proceeding may file with the supreme
      court a petition for the revocation by consent or his
      or her license to practice law.
                                                            No.     2013AP2836-D



Labanowsky states in his petition that he cannot successfully

defend against allegations of professional misconduct related to

several      incidents   the   Office   of   Lawyer    Regulation    (OLR)   is

currently investigating.

       ¶2     Attorney Labanowsky was admitted to practice law in

1975.       He received a public reprimand in 2009, for engaging in

acts    leading    to    separate   convictions   of    misdemeanor     second

offense operating with a prohibited alcohol concentration of .08

or more, misdemeanor bail jumping, misdemeanor operating while

            (2) The petition shall state that the petitioner
       cannot successfully defend against the allegations of
       misconduct.

            (3) If a complaint has not been filed, the
       petition shall be filed in the supreme court and shall
       include the director's summary of the misconduct
       allegations being investigated.   Within 20 days after
       the date of filing of the petition, the director shall
       file in the supreme court a recommendation on the
       petition.   Upon a showing of good cause, the supreme
       court may extend the time for filing a recommendation.

            (4) If a complaint has been filed, the petition
       shall be filed in the supreme court and served on the
       director and on the referee to whom the proceeding has
       been assigned. Within 20 days after the filing of the
       petition, the director shall file in the supreme court
       a response in support of or in opposition to the
       petition and serve a copy on the referee.       Upon a
       showing of good cause, the supreme court may extend
       the time for filing a response.     The referee shall
       file a report and recommendation on the petition in
       the supreme court within 30 days after receipt of the
       director's response.

            (5) The supreme court shall grant the petition
       and revoke the petitioner's license to practice law or
       deny the petition and remand the matter to the
       director or to the referee for further proceedings.

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                                                                        No.    2013AP2836-D



intoxicated (OWI) 3rd and misdemeanor OWI 4th, all in violation

of SCR 20:8.4(b).          Public Reprimand of Charles J. Labanowsky

III, No. 2009-2.         He received a public reprimand in 2011, for

engaging in acts leading to a criminal conviction of misdemeanor

theft   in    violation    of        SCR    20:8.4(b).          Public       Reprimand     of

Charles J. Labanowsky III, No. 2011-16.                      He voluntarily retired

from the practice of law in April 2013.

      ¶3     Attached      to        Attorney        Labanowsky's        petition          for

consensual     revocation       is    a    summary     of    misconduct       allegations

that the OLR is investigating.                      These include five alcohol-

related      incidents     between          April     2012      and     May     2013       and

allegations of trust account anomalies.

      ¶4     On April 27, 2012, Attorney Labanowsky was arrested

and   subsequently      charged       with    driving       a   motor    vehicle       while

under the influence of an intoxicant, 5th offense.                                  State v.

Charles J. Labanowsky III, Kenosha County Case No. 20l2-CF-470.

Attorney Labanowsky posted a cash bond and was released on the

conditions     that   he    was       not    to     possess     or    consume        illegal
controlled     substances       without       a    prescription,        he    was    not   to

possess or consume alcohol, he was to submit to random blood

alcohol testing, and he was not to drive a vehicle without a

valid driver's license.

      ¶5     On   August    28,       2012,       Attorney      Labanowsky      was     seen

driving his car away from the Kenosha County courthouse.                              He was

stopped by a sheriff's deputy.                    Attorney Labanowsky admitted he

knew that his license was suspended and that his bail conditions
prohibited him from driving.                 Attorney Labanowsky was arrested
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and released on a cash bond, again with conditions prohibiting

possession or consumption of alcohol or the commission of any

crimes.       He was charged with two counts of felony bail jumping

in     connection      with        this     incident.             State     v.      Charles       J.

Labanowsky III, Kenosha County Case No. 20l2-CF-975.

       ¶6     On February 4, 2013, a sheriff's deputy responded to

reports that Attorney Labanowsky was intoxicated at the Kenosha

County       courthouse.           Observers           feared     he   might        drive       away

intoxicated.          Upon     questioning,             Attorney       Labanowsky           denied

drinking.          While the deputy went to check the status of his

driving      privileges,        Attorney          Labanowsky       drove     away        from    the

scene.       He was later apprehended and released on a cash bond,

again    with       conditions.            He    was    charged     with     obstructing          an

officer and two counts of bail jumping in connection with this

incident.        State v. Charles J. Labanowsky III, Kenosha County

Case No. 20l3-CF-242.

       ¶7     On     April     11,    2013,       Attorney        Labanowsky        failed       two

breathalyzer         tests    conducted          by    a   community       services        agency.
Attorney Labanowsky posted a cash bond, again with conditions.

He was charged with two counts of felony bail jumping.                                    State v.

Charles J. Labanowsky III, Kenosha County Case No. 2013-CF-461.

       ¶8     Finally,        on     the    morning        of    May   16,       2013,      police

responded       to    an     anonymous          tip    that     Attorney     Labanowsky         was

consuming alcohol at his residence in violation of his bond.

Attorney Labanowsky let the officers into his house and admitted

that    he    had    been     drinking          alcohol    in    violation         of    his    bond
conditions.          Attorney Labanowsky's blood alcohol concentration
                                                  4
                                                                     No.    2013AP2836-D



level was tested and found to be .203.                        This time, Attorney

Labanowsky did not post bond and remained in custody.                           He was

subsequently        charged    with     four    counts    of     bail      jumping     in

connection with this incident.                 State v. Charles J. Labanowsky

III, Kenosha County Case No. 20l3-CF-536.

       ¶9    On June 20, 2013, Attorney Labanowsky entered a plea

agreement with respect to all five of the above-mentioned cases.

Attorney Labanowsky was found guilty and convicted of one count

of    driving   a    motor    vehicle    while    under   the     influence      of    an

intoxicant, 5th offense, in State v. Charles J. Labanowsky III,

Kenosha County Case No. 20l2-CF-470; one count of felony bail

jumping in State v. Charles J. Labanowsky III, Kenosha County

Case No. 20l3-CF-242; and two counts of bail jumping in State v.

Charles J. Labanowsky III, Kenosha County Case No. 2013-CF-536.

The remaining charges were dismissed but read in.                             Attorney

Labanowsky was sentenced to 36 months in prison followed by 36

months of extended supervision in the OWI matter; additional

sentences were imposed and stayed in the related cases.                        The OLR
is    investigating      possible       violations       of    SCR     20:8.4(b)       in

connection with the alcohol-related misconduct.                      No restitution

is requested.

       ¶10   The OLR is also investigating possible trust account

violations.         In October 2008 the OLR learned of two possible

overdrafts on Attorney Labanowsky's client trust account.                             The

OLR    reconstructed     the    trust    account    and       ascertained     that     on

numerous occasions Attorney Labanowsky had disbursed funds from
the account on behalf of clients who either had no funds or had
                                          5
                                                                  No.   2013AP2836-D



insufficient       funds      in     the       account      to    satisfy      those

disbursements.         In one matter, Attorney Labanowsky represented

P.C., the seller in a real estate transaction.                    Briefly stated,

Attorney Labanowsky disbursed $10,000 more to himself than he

was entitled to receive in connection with the transaction.

      ¶11   The OLR also discovered anomalies in a trust account

relating to the Estate of M.W.                  On April 1, 2009, the trust

account for the Estate of M.W. had a balance of $802.85, but the

client ledger indicated a balance of $23,669.06 should have been

on   deposit     for   that   matter.          On   April   29,   2009,     Attorney

Labanowsky deposited $25,000 in law firm funds to the trust

account in order to make a $25,000 distribution relating to the

Estate of M.W.         Attorney Labanowsky characterized that deposit

as a partial refund of his legal fees.

      ¶12   The OLR determined that on June 30, 2009, there should

have been $16,819.93 in trust for the Estate of M.W. but there

was only $6,568.42.           In addition, Attorney Labanowsky had a

habit of leaving earned fees in the trust account for periods
ranging from 18 to 39 months and occasionally deposited earned

fees back to the trust account to cover shortfalls caused by the

conversion of funds belonging to one client for the benefit of

another client.

      ¶13   In    late     2009,    after      reviewing    the    OLR's     initial

findings    relating     to   his   trust      account,     Attorney    Labanowsky

deposited additional personal and/or law firm funds into the

trust account to cover the shortfalls.                He also disbursed earned
fees that had been held in trust for extended periods.                           The
                                           6
                                                                      No.     2013AP2836-D



foregoing      actions        potentially          violate          SCR       20:8.4(c),

SCR 20:1.15(b) (1), SCR 20:1.15(b) (3), SCR 20:1.15(d) (1), and

SCR 20:1.15(f) (l)a., b. and g.

       ¶14   Attorney        Labanowsky's         petition          for       consensual

revocation states that he cannot successfully defend against the

allegations of professional misconduct set forth in the OLR's

summary of the matters being investigated.                    His petition asserts

that he is seeking consensual revocation freely, voluntarily,

and knowingly.        He states that he understands he is giving up

his right to contest the OLR's allegations.                        He states that he

knows he has the right to counsel in this matter.                                  The OLR

supports Attorney Labanowsky's petition for consensual license

revocation.         See   SCR     22.19(3).           The    OLR    is      not    seeking

restitution.

       ¶15   Having    reviewed      Attorney     Labanowsky's           petition,       the

OLR's summary of the matters it is investigating, and the OLR's

recommendation, we accept Attorney Labanowsky's petition for the

revocation of his license to practice law in Wisconsin.                                  See
SCRs   22.19(1),      (2),    and    (5).       The    seriousness          of    Attorney

Labanowsky's misconduct demonstrates the need to revoke his law

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

from   the   repetition      of     misconduct;       to    impress      upon     Attorney

Labanowsky the seriousness of his misconduct; and to deter other

attorneys    from     engaging      in   similar      misconduct.            See    In    re

Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78, 279

Wis. 2d 583, 694 N.W.2d 910.             We accept the OLR's decision not
to seek a restitution order.
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                                                          No.        2013AP2836-D



    ¶16   Because        Attorney    Labanowsky    petitioned         for    the

consensual revocation of his Wisconsin law license before the

appointment of a referee, and because the OLR has not requested

the imposition of costs, we do not assess the costs of this

disciplinary proceeding against Attorney Labanowsky.

    ¶17   IT IS ORDERED that the petition for consensual license

revocation is granted.

    ¶18   IT IS FURTHER ORDERED that the license of Charles J.

Labanowsky   III    to    practice    law   in    Wisconsin     is     revoked,

effective the date of this order.

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

already done so, Charles J. Labanowsky III 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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