                                                        2018 WI 96

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2017AP411-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Michele A. Tjader, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Michele A. Tjader,
                                 Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST TJADER

OPINION FILED:         October 16, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J., dissents, joined by
                       ABRAHAMSON, J.
  NOT PARTICIPATING:   DALLET, J., did not participate.

ATTORNEYS:
                                                                        2018 WI 96
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2017AP411-D


STATE OF WISCONSIN                            :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Michele A. Tjader, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
           Complainant                                          OCT 16, 2018
      v.                                                           Sheila T. Reiff
                                                                Clerk of Supreme Court
Michele A. Tjader,

           Respondent.




      ATTORNEY     disciplinary        proceeding.         Attorney          publicly

reprimanded.


      ¶1   PER CURIAM.        We review the supplemental report filed

by    Referee    John     Nicholas    Schweitzer,      adopting        an    amended

stipulation     entered     between   the   Office    of    Lawyer      Regulation

(OLR) and Attorney Michele A. Tjader.

      ¶2   After        careful   review,    we      accept      the        referee's

recommendation and parties' stipulation wherein Attorney Tjader

stipulates that she does not contest six counts of misconduct

alleged in the OLR's complaint and the OLR seeks dismissal of
three counts.      We agree with the parties and the referee that a
                                                                                     No.       2017AP411-D



public    reprimand         is       an    appropriate           level         of    discipline           for

Attorney Tjader's misconduct, that restitution is not required,

and that Attorney Tjader should be assessed the full costs of

the proceeding, which are $3,298.19 as of June 26, 2018.

     ¶3      Attorney           Tjader          was       admitted        to     practice           law    in

Wisconsin in 1996.                  She practices in Madison.                         She has been

disciplined by this court on three prior occasions.                                        In 2002, we

publicly    reprimanded             Attorney          Tjader     for       lack      of    competence,

lack of diligence, failing to comply with reasonable requests

for information, failing to promptly return an advance payment

of   fees    that         had       not    been        earned,        and       conduct        involving

dishonesty, deceit, and misrepresentation.                                     In re Disciplinary

Proceedings      Against            Tjader       2002       WI   37,       252      Wis. 2d 94,           643

N.W.2d 87.           In     2006,         Attorney          Tjader         received        a        private

reprimand for failing to comply with reasonable requests for

information       and      failing         to     explain        a    matter         to    the       extent

reasonably       necessary           to    permit          the   client         to   make       informed

decisions regarding the representation.                                   Private Reprimand No.
2006-2               (electronic                          copy                 available                   at

https://compendium.wicourts.gov/app/raw/001855.html).                                          In 2014,

Attorney     Tjader             received          another        private             reprimand            for

committing       a       criminal         act    that       reflected           adversely           on    her

honesty,     trustworthiness                or        fitness        as    a     lawyer        in     other

respects    as       a    result      of     being         convicted        of      operating         while

intoxicated (OWI)               –   second offense.                       Private Reprimand No.

2014-20     (electronic              copy        available           at        https://compendium.
wicourts.gov/app/raw/002709.html).
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                                                                     No.     2017AP411-D



      ¶4    This      disciplinary      proceeding       commenced      on      March    7,

2017, when the OLR filed a complaint alleging that Attorney

Tjader     committed      nine       counts     of   professional            misconduct

involving three clients.1            The OLR initially recommended a 60-day

suspension      and     that     Attorney       Tjader    be     ordered         to     pay

restitution in one client matter, for failure to reimburse an

expert for an accident report.              During the course of litigation,

the OLR concluded that it would not be able to meet its burden

of proof as to three of the nine alleged counts.                        Accordingly,

the OLR reduced the recommended sanction to a public reprimand.

      ¶5    On January 22, 2018, the parties executed an initial

stipulation     in    which    the    OLR   recommended     dismissal           of    three

counts, Attorney Tjader stated she did not contest the remaining

six   counts,    and    the    parties      agreed   a    public     reprimand          was

appropriate.          However,       this   stipulation        failed      to    address

restitution.

      ¶6    The referee issued a report on February 13, 2018, in

which he accepted the recommendations in the stipulation but
further recommended that this court order Attorney Tjader to

refund each of the three clients the full amount of fees paid,

an amount that would exceed $34,000.                 He recommended the court




      1
       Attorney Tjader initially failed to respond to the
complaint and the OLR filed a Motion for Default Judgment.
However, Attorney Tjader eventually responded, a referee was
appointed, and discovery and further investigation ensued.



                                            3
                                                                No.    2017AP411-D



place the burden on Attorney Tjader to demonstrate what, if

anything, she earned if she wanted to reduce this amount.

      ¶7     After the referee's initial report was filed, the OLR

filed a restitution statement stating that it does not seek

restitution in this matter because restitution with respect to

the first two clients was "not reasonably ascertainable" and the

OLR had determined that the expert who prepared the accident

report has since been paid.2             In view of this discrepancy, we

remanded the matter with directions to the parties to amend

their stipulation to address restitution and directed the OLR to

explain the basis for the recommended discipline.

      ¶8     An amended stipulation was filed on May 8, 2018.                     In

the   amended    stipulation     the    OLR    again   recommends      the   court

dismiss three of the alleged counts of misconduct.                         Attorney

Tjader     states   that   she   does    not   contest   the    remaining        six

misconduct      counts,     which       alleged    violations         of     former




      2
          The OLR's policy is to seek restitution only when:

             (1) There is a reasonably ascertainable amount;

           (2) The funds to be restored                  were     in       the
      respondent lawyer's direct control;

           (3) The funds to be restored do not constitute
      incidental or consequential damages; and

           (4) The grievant's or respondent's rights in                      a
      collateral proceeding will not likely be prejudiced.


                                         4
                                                      No.   2017AP411-D



SCR 20:1.15(b)(4m)b3    and   SCR 20:1.16(d),4   stemming   from   her

representation of three clients.

     3
       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, (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(b)(4m)b provided:

          A lawyer who accepts advanced payments of fees
     may deposit the funds in the lawyer's business
     account, provided that review of the lawyer's fee by a
     court of competent jurisdiction is available in the
     proceeding to which the fee relates, or provided that
     the lawyer complies with each of the following
     requirements:

          b. Upon termination of the representation, the
     lawyer shall deliver to the client in writing all of
     the following:

           1. a final accounting, or an accounting from the
     date of the lawyer's most recent statement to the end
     of the representation, regarding the client's advanced
     fee payment with a refund of any unearned advanced
     fees;

          2. notice that, if the client disputes the amount
     of the fee and wants that dispute to be submitted to
     binding arbitration, the client must provide written
     notice of the dispute to the lawyer within 30 days of
     the mailing of the accounting; and

          3. notice that, if the lawyer is unable to
     resolve the dispute to the satisfaction of the client
     within 30 days after receiving notice of the dispute
     from the client, the lawyer shall submit the dispute
     to binding arbitration.
     4
         SCR 20:1.16(d) provides:

          Upon termination of representation, a lawyer
     shall take steps to the extent reasonably practicable
                                                    (continued)
                                    5
                                                                       No.   2017AP411-D



    ¶9        The relevant facts are as follows.                 In 2013 and 2014,

Attorney Tjader represented N.B. in a criminal OWI matter; K.D.

in a civil OWI matter; and L.H. in a felony matter.                            Each of

those clients paid advance fees to Attorney Tjader.                          N.B. paid

Attorney Tjader $3,500 in advanced fees, K.D. paid her $4,500,

and L.H. paid her $25,000.           Attorney Tjader deposited all these

fees directly into her business account.                   Nevertheless, at the

conclusion of her representation of each client, Attorney Tjader

failed to provide them with the notices required under former

SCR 20:1.15(b)(4m)b.         Attorney Tjader also failed to provide

each of the clients with a refund of unearned fees, if any, or

sufficient information to show that no such refund was owing, in

violation of SCR 20:1.16(d).

    ¶10       In the amended stipulation, Attorney Tjader avers that

the stipulation did not result from plea-bargaining, that she

does not contest the facts and misconduct alleged by the OLR in

counts   2,    3-5,   and   8-9,    and    that    the    facts    alleged     in   the

complaint form a basis for the discipline requested.                          Attorney
Tjader    further     represents      that       she     fully    understands       the

misconduct      allegations;       fully       understands       the    ramifications



    to protect a client's interests, such as giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
    been earned or incurred. The lawyer may retain papers
    relating to the client to the extent permitted by
    other law.


                                           6
                                                               No.     2017AP411-D



should this court impose the stipulated level of discipline;

fully   understands       her   right   to   contest     the   matter;     fully

understands her right to consult with counsel; that her entry

into the stipulation is made knowingly and voluntarily; and that

the stipulation represents her decision not to contest the level

and type of discipline sought by the OLR director.

    ¶11    The referee filed a supplemental report on May 31,

2018,   adopting    the    stipulation.       The    referee   agreed    that   a

public reprimand was an appropriate sanction for the misconduct

described above, and acceded to the parties' recommendation that

no restitution is warranted.

    ¶12    No appeal has been filed so we review this matter

pursuant to SCR 22.17(2).5          A referee's findings of fact are

affirmed   unless    clearly     erroneous.         Conclusions   of    law   are

reviewed de novo.         See In re Disciplinary Proceedings Against

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

court may impose whatever sanction it sees fit regardless of the

referee's recommendation.          See In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.



    5
        SCR 22.17(2) provides:

         If no appeal is filed timely, the supreme court
    shall review the referee's report; adopt, reject or
    modify the referee's findings and conclusions or
    remand the matter to the referee for additional
    findings;   and   determine  and   impose  appropriate
    discipline.   The court, on its own motion, may order
    the parties to file briefs in the matter.


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                                                                         No.    2017AP411-D



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

of fact, based on the parties' amended stipulation, are clearly

erroneous.       Accordingly, we adopt them.             We agree that dismissal

of counts 1, 6, and 7 is appropriate, and we agree that Attorney

Tjader violated supreme court rules noted above.6

     ¶14       With respect to the appropriate sanction, this court

follows    a    general      policy   of    progressive        discipline.          In   re

Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296

Wis. 2d 47, 719 N.W.2d 501.                Attorney Tjader's record of three

previous       reprimands     makes   another         public    reprimand         somewhat

lenient, but we are persuaded by the referee's recommendation.

     ¶15       The referee observed that Attorney Tjader's failure to

comply     with        SCR    20:1.15(b)(4m)b          "amounted         to      technical

violations       of    essentially    a     failure     to     provide         appropriate

notice to her clients" citing In re Disciplinary Proceedings

Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439.                               In

light      of        this    precedent,         the     referee          agreed     that,

notwithstanding the policy of progressive discipline, a public
reprimand       is     appropriate     here.          See      In   re     Disciplinary

     6
       We dismiss counts 1, 6, and 7 of the OLR complaint, which
alleged that: by failing to take steps to accurately ascertain
the status of the matter after receiving N.B.'s inquiries into
the status of her driver's license, and by failing to take any
steps to mitigate the consequences of the untimely filed demand
for a refusal hearing, Attorney Tjader violated SCR 20:1.3
(Diligence) (Count 1); by failing to timely address the
restitution issue after L.H.'s sentencing, Attorney Tjader
violated SCR 20:1.3 (Count 6); and by failing to inform L.H.
that a restitution order had been issued by the court, Attorney
Tjader violated SCR 20:1.4(a)(3) (Communication) (Count 7).


                                            8
                                                                           No.    2017AP411-D



Proceedings Against Shepherd, 2017 WI 66, 376 Wis. 2d 129, 897

N.W.2d 44 (concluding a public reprimand was warranted where, in

addition to other allegations, an attorney failed to provide

notices     and     refunds       of   unearned      fees);       In     re    Disciplinary

Proceedings       Against     Smead,     2013      WI     19,    345   Wis. 2d 625,         827

N.W.2d 81    (imposing        a    public     reprimand          for   seven      counts     of

misconduct     including          failing    to     deposit       fees     into     a     trust

account and failing to return unearned fees).

      ¶16    The OLR assured the court in its memorandum in support

of the amended stipulation that it carefully considered Attorney

Tjader's     disciplinary           history        when     determining          the      OLR's

recommendation for a public reprimand.                          Consistent with Rajek,

Attorney     Tjader's       misconduct        in     these       matters,        absent     her

disciplinary        history,       might     have       warranted      a      diversion      or

private reprimand.          The OLR explains that it maintained pursuit

of a public reprimand, rather than private discipline, precisely

because of Attorney Tjader's disciplinary history.

      ¶17    Moreover, with respect to restitution, although the
parties      have     stipulated           that      Attorney          Tjader       violated

SCR 20:1.16(d), the OLR does not dispute that Tjader performed

the services each of these clients hired her to do.                                    The OLR

notes that to the extent that any of these clients believe the

fees they were charged were not reasonable, the State Bar of

Wisconsin offers fee arbitration to address such concerns.                                   In

the   amended        stipulation,           Attorney       Tjader        has      explicitly

confirmed her willingness to participate in fee arbitration if


                                              9
                                                                       No.    2017AP411-D



initiated by any of her clients and has agreed that she would

comply with any arbitration award.

      ¶18     Finally, we agree with the referee that, consistent

with our general policy, Attorney Tjader should be required to

pay   the    full    costs   of    the     proceeding,        which   are    $3,298.19.

SCR 22.24(1m).

      ¶19     IT    IS   ORDERED    that     Michele     A.    Tjader    is    publicly

reprimanded for professional misconduct.

      ¶20     IT IS FURTHER ORDERED that, as stipulated, Michele A.

Tjader shall submit any fee dispute, if pursued by any of the

three    grievants        noted     in     this   decision,       to     binding     fee

arbitration before the State Bar of Wisconsin Fee Arbitration

Program and shall comply with any arbitration award.

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

of this order, Michele A. Tjader shall pay to the Office of

Lawyer      Regulation     the     costs    of    this   proceeding,         which   are

$3,298.19 as of June 26, 2018.

      ¶22     IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.

      ¶23     REBECCA FRANK DALLET, J., did not participate.




                                            10
                                                                        No.    2017AP411-D.awb


      ¶24   ANN    WALSH       BRADLEY,      J.     (dissenting).              In    spite    of

Attorney    Tjader       having      received       three    prior       reprimands,         the

court     imposes        yet       another        reprimand.1                Accepting       the

recommendation       of    the      referee,       which     in    turn       accepted       the

amended stipulation of the parties, it determines that a public

reprimand is appropriate.

      ¶25   In justifying its decision, the court apparently is

persuaded by the Office of Lawyer Regulation's (OLR) assurance

that a public reprimand is the correct level of discipline.                                  See

per   curiam,     ¶16.         I   am   not       persuaded       by    OLR's       assurance.

Instead,    for     the    reasons      set       forth     below,       I    would    impose

progressive discipline and place the onus on Attorney Tjader to

demonstrate that no restitution is required.

      ¶26   First, the opinion of this court states that "the OLR

assured the court in its memorandum in support of the amended

stipulation       that    it       carefully       considered          Attorney       Tjader's

disciplinary history when determining OLR's recommendation for a

public reprimand."         Part of that disciplinary history includes a
private reprimand issued by OLR——not this court——for a second

offense OWI.2




      1
       Attorney Tjader was publicly reprimanded                               in    2002,    and
privately reprimanded in 2006 and 2014.
      2
       SCR 22.05(1)(c) provides that:   "Upon                           completion of an
investigation, the director may do one                                 or more of the
following: . . . Obtain  the   respondent's                            consent   to  the
imposition of a public or private reprimand                            and proceed under
SCR 22.09."


                                              1
                                                                        No.    2017AP411-D.awb


       ¶27    I thought that we were long since past the time of

addressing      multiple         OWI     convictions      (a    criminal       offense)       by

imposing       merely       a    private        reprimand.          See       e.g.,     In     re

Disciplinary Proceedings Against Horsch, 2017 WI 105, ¶23, 378

Wis.    2d    554,    905       N.W.2d    129    (explaining        that      "multiple       OWI

convictions are unquestionably a serious failing that 'reflects

adversely      on     [an   attorney's]          fitness       as   a   lawyer     in    other

respects.'")         The OLR's assurance that "it carefully considered"

Attorney       Tjader's          disciplinary         history       when       making        this

recommendation for a public reprimand rests on what appears to

be the misguided foundation of OLR's private reprimand for her

prior criminal conviction.

       ¶28    Second, the OLR seems to be taking a statement by this

court regarding progressive discipline and turning it on its

head.        As justification for going along with the stipulation,

the referee in this case observed that OLR apparently took the

position that because Attorney Tjader's prior misconduct did not

involve      the     same   violations          asserted   here,        that    progressive
discipline need not be imposed.                     For this dubious proposition it

relied on our statement recognizing that progressive discipline

should be followed, especially in cases of repeated violations

of the same code provision.                         In re Disciplinary Proceedings

Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d

501.    Somehow, the OLR apparently now relies on this statement

as a justification to not impose progressive discipline when

there are violations of different code provisions.



                                                2
                                                                         No.    2017AP411-D.awb


      ¶29     Finally,          the    OLR's         position     on      restitution       is

misguided.         It places the onus for professional misconduct on

the   victim       of    that    misconduct          rather     than    on     the   attorney

engaging in the misconduct.                  We recently advised the OLR of the

error    of    its      ways    in    Matter     of    Med.     Incapacity       Proceedings

Against       Muwonge,         2017    WI    12,      ¶23,      373     Wis. 2d 173,       890

N.W.2d 575 (explaining that restitution "may be reduced by any

amount      that        [the]    [a]ttorney           []   can    establish,         to    the

satisfaction of the OLR, represents the value of legal services

he actually performed for [the client].").

      ¶30     Accordingly, I respectfully dissent.

      ¶31     I    am    authorized         to   state     that       Justice    SHIRLEY    S.

ABRAHAMSON, joins this dissent.




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    No.   2017AP411-D.awb




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