                                                         2018 WI 50

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP2540-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Philip M. Kleinsmith, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Philip M. Kleinsmith,
                                  Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST KLEINSMITH

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

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2018 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.       2017AP2540-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Philip M. Kleinsmith, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
              Complainant,                                        May 16, 2018
      v.                                                             Sheila T. Reiff
                                                                  Clerk of Supreme Court
Philip M. Kleinsmith,

              Respondent.




      ATTORNEY      disciplinary         proceeding.       Attorney's         license

revoked.


      ¶1      PER CURIAM.         The   Office of Lawyer Regulation (OLR)

and   Attorney     Philip    M.    Kleinsmith    have     filed     a   stipulation

pursuant      to   Supreme   Court      Rule   (SCR)    22.121      agreeing       that

      1
          SCR 22.12 provides:

            (1) The director may file with the complaint a
      stipulation of the director and the respondent to the
      facts, conclusions of law regarding misconduct, and
      discipline to be imposed.      The supreme court may
      consider the complaint and stipulation without the
      appointment of a referee, in which case the supreme
      court    may  approve  the  stipulation,  reject   the
                                                      (continued)
                                                                No.    2017AP2540-D



Attorney   Kleinsmith's      license     to   practice    law     in    Wisconsin

should be revoked, as discipline reciprocal to that imposed by

the   Supreme   Court   of   Colorado.        Upon   careful    review    of   the

matter, we approve the stipulation and impose the stipulated

reciprocal discipline.       The OLR does not seek the imposition of

costs   against   Attorney     Kleinsmith       because   this        matter   was

resolved without the need for a referee or a lengthy proceeding,

and we impose no costs.         We do require Attorney Kleinsmith to

comply with all of the conditions of the disciplinary orders




      stipulation, or direct the parties to                       consider
      specific modifications to the stipulation.

           (2) If the supreme court approves a stipulation,
      it shall adopt the stipulated facts and conclusions of
      law and impose the stipulated discipline.

           (3) If the supreme court rejects a stipulation, a
      referee shall be appointed and the matter shall
      proceed as a complaint filed without a stipulation.

           (3m) If the supreme court directs the parties to
      consider specific modifications to the stipulation,
      the parties may, within 20 days of the date of the
      order, file a revised stipulation, in which case the
      supreme court may approve the revised stipulation,
      adopt the stipulated facts and conclusions of law, and
      impose the stipulated discipline. If the parties do
      not file a revised stipulation within 20 days of the
      date of the order, a referee shall be appointed and
      the matter shall proceed as a complaint filed without
      a stipulation.

           (4) A stipulation rejected by the supreme court
      has no evidentiary value and is without prejudice to
      the respondent's defense of the proceeding or the
      prosecution of the complaint.


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imposed on him by the Colorado Supreme Court, which include a

requirement that he pay restitution in the Colorado matter.

       ¶2   Attorney Kleinsmith was admitted to practice law in

Colorado in 1967.           He presently resides in Colorado.                          He was

admitted    to    practice      law    in    Wisconsin       in    1999    and,       at    some

point, was also admitted to practice law in Arizona.                                  In 2013,

this    court      publically         reprimanded       Attorney          Kleinsmith          as

discipline       reciprocal     to    a     reprimand    imposed      by        the    Arizona

Supreme Court, for filing improper arbitration certificates in

nine different matters; failing to appear at a hearing; failing

to   properly     serve     a   party;      failing     to    properly          withdraw     as

counsel; and filing documents with errors and omissions.                                Public

Reprimand of Philip M. Kleinsmith, No. 2013-10 (electronic copy

available              at                 https://compendium.wicourts.gov/app/

raw/002602.html).         His Wisconsin law license has been suspended

since October 31, 2017, for failure to pay mandatory state bar

dues and failure provide an OLR certification.

       ¶3   On October 30, 2017, the Supreme Court of Colorado
entered an order disbarring Attorney Kleinsmith in Colorado for

professional       misconduct.         The     misconduct         giving    rise       to    his

Colorado disbarment dates from 2012, when Attorney Kleinsmith

hired a title company to work on several foreclosure matters in

which his firm represented a bank.                    Attorney Kleinsmith billed

the bank for the title company's work, but after the bank paid

him, he converted those funds to his own use, instead of paying

the title company.


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       ¶4     The     Colorado      Supreme         Court       found     that       Attorney

Kleinsmith's         conduct    violated       Colorado         Rules   of     Professional

Conduct (RPC) 8.4(c), 1.15A and former RPC l.15(b).                                  Attorney

Kleinsmith was ordered to pay $56,238.80 in restitution to First

American Title Company of Montana.

       ¶5     Attorney Kleinsmith then failed to notify the OLR of

his Colorado disbarment within 20 days of its effective date.

SCR 22.22(1).

       ¶6     On     December     29,    2017,          the   OLR    filed     a    complaint

against Attorney Kleinsmith alleging two counts of misconduct.

First, by virtue of his Colorado disbarment, Attorney Kleinsmith

is subject to reciprocal discipline in Wisconsin pursuant to

SCR 22.22(3) (Count 1).            Second, by failing to notify OLR of his

disbarment      in    Colorado     for     professional          misconduct        within   20

days    of     the     effective        date       of     its    imposition,         Attorney

Kleinsmith violated SCR 22.22(1) (Count 2).

       ¶7     On February 22, 2018, Attorney Kleinsmith entered into

a stipulation with the OLR in which he agreed that the facts
alleged in the OLR's complaint support the revocation of his

license to practice law in Wisconsin, as discipline reciprocal

to that imposed by the Supreme Court of Colorado.

       ¶8     Supreme Court Rule 22.22(3) provides that this court

shall       impose    the      identical       discipline           imposed    in     another




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jurisdiction unless one or more of three exceptions apply.2                      In

his stipulation, Attorney Kleinsmith states that he does not

claim any of the defenses found in SCR 22.22(3), and he agrees

that this court should revoke his license to practice law in

Wisconsin.

      ¶9   Attorney Kleinsmith also states that the stipulation

did not result from plea bargaining and that he does not contest

the   facts    and     misconduct     alleged      by     the    OLR.     Attorney

Kleinsmith further states that he agrees the facts alleged in

the   OLR's    complaint       may   form   a     basis    for    the   discipline

requested by the OLR director.              He further avers that he fully

understands the misconduct allegations; fully understands the

ramifications should this court impose the stipulated level of

discipline; fully understands his right to contest the matter;

fully understands his right to consult with counsel; avers that

his   entry     into     the     stipulation       is     made    knowingly     and

voluntarily;    that     he    has   read   the    OLR's    complaint     and   the

stipulation and that his entry into the stipulation represents




      2
       In this matter, the discipline we impose – revocation – is
nearly identical.    The respective court rules of Wisconsin and
Colorado dictate a slightly different result.       In Colorado,
"disbarment" is defined as "revocation of an attorney's license
to practice law . . . " subject to a formal "readmission"
proceeding.    In Colorado, disbarment shall be for "at least
eight years."    See C.R.C.P. 251.6(a).  Wisconsin uses the term
"revocation," not disbarment.       See SCR 21.16(1m)(a).      In
Wisconsin, an attorney whose license has been revoked may seek
reinstatement after five years. See SCR 22.29(2).


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his   decision       not   to     contest   the        misconduct       alleged    in       the

complaint or the level and type of discipline sought by the OLR.

      ¶10    In      the   memorandum       submitted           in     support     of       the

stipulation, the OLR recommends this court also order Attorney

Kleinsmith to comply with the Colorado Supreme Court's decision,

which requires Attorney Kleinsmith to make restitution.                                 See,

e.g., In re Disciplinary Proceedings Against Manion, 2016 WI 88,

372    Wis. 2d 34,         886     N.W.2d 371          (ordering       attorney        in     a

reciprocal discipline case who was directed to pay restitution

in    another     state      to    comply       with     "all     conditions       of       the

disciplinary orders imposed on him by the Arizona Supreme Court

required for reinstatement").

      ¶11    We accede to the OLR's request regarding restitution.

The court notes that in the event Attorney Kleinsmith ever seeks

reinstatement of his Wisconsin law license, he would need to

demonstrate, pursuant to SCR 22.29(4m), that he has made the

restitution ordered by the Colorado Supreme Court or explain his

failure to do so.
      ¶12    Upon review of this matter, we accept the stipulation

and   revoke      Attorney       Kleinsmith's     license        to    practice    law       in

Wisconsin,      as    discipline      reciprocal         to     that    imposed    by       the

Supreme     Court     of   Colorado.            Because       this     matter    has    been

resolved by means of a stipulation without the appointment of a

referee and because the OLR has not requested the imposition of

costs, we do not impose any costs upon Attorney Kleinsmith.




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                                                               No.    2017AP2540-D



    ¶13   IT IS ORDERED that the license of Philip M. Kleinsmith

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

this order.

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

already done so, Philip M. Kleinsmith 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.

    ¶15   IT       IS   FURTHER   ORDERED       that     compliance   with    all

conditions    of    this   order,   as       well   as   compliance    with   all

conditions of the disciplinary orders imposed on him by the

Colorado Supreme Court are required for Philip M. Kleinsmith's

reinstatement.      See SCR 22.29(4)(c).




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