                                                         2018 WI 69

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP1933-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Sarah Clemment, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Sarah Clemment,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST CLEMMENT

OPINION FILED:          June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2018 WI 69
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2017AP1933-D


STATE OF WISCONSIN                            :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Sarah Clemment, Attorney at Law:

Office of Lawyer Regulation,                                          FILED
           Complainant,
                                                                 JUN 15, 2018
      v.
                                                                    Sheila T. Reiff
                                                                 Clerk of Supreme Court
Sarah Clemment,

           Respondent.




      ATTORNEY       disciplinary      proceeding.         Attorney         publicly

reprimanded.



      ¶1   PER   CURIAM.     We     review   the    report     of    Referee       John

Nicholas Schweitzer recommending that Attorney Sarah Clemment be

declared in default, concluding that Attorney Clemment engaged

in    professional     misconduct,     and   recommending           that     she     be

publicly reprimanded.        Attorney Clemment failed to present a

defense despite being given the opportunity to do so, and she

did not oppose the Office of Lawyer Regulation's (OLR) motion
for default.     Accordingly, we declare her to be in default.                       We
                                                                      No.    2017AP1933-D



also conclude that a public reprimand is an appropriate sanction

for her misconduct.          We further agree with the referee that

Attorney Clemment should be required to make restitution in the

amount of $5,000, and the full costs of the proceeding, which

are $802.19 as of April 12, 2018, should be assessed against

her.

       ¶2    Attorney    Clemment       was      admitted    to     practice    law    in

Wisconsin    in   2000    and     practices        in    Madison.       In    2011    she

received a consensual public reprimand for failing to provide

competent    representation        to    a       client,    failing     to    act    with

reasonable diligence and promptness in representing a client,

failing to keep the client reasonably informed about the status

of the matter, and engaging in conduct involving dishonesty,

fraud, deceit or misrepresentation.                     Public Reprimand of Sarah

Clemment,      No.       2011-6     (electronic             copy      available        at

https://compendium.wicourts.gov/app/raw/002365.html).

       ¶3    On October 3, 2017, the OLR filed a complaint against

Attorney Clemment alleging six counts of misconduct arising out
of her representation of D.H.                 In November 2015, D.H. had been

charged with first-degree murder in Dane County.                       In January of

2016, D.H. hired Attorney Clemment to represent him.                           Attorney

Clemment had never handled a homicide case and had never tried a

case to a jury.          D.H.'s sister, B.H., paid Attorney Clemment

$5,000 to represent D.H.          Attorney Clemment deposited the $5,000

into   her   business     account       and      prepared    a     written    flat    fee

agreement outlining the scope of the representation.


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       ¶4     The      circuit        court      held      a       preliminary         hearing      on

January 28, 2016, found probable cause, and bound D.H. over for

trial.      There was DNA and GPS evidence implicating D.H.

       ¶5     Prior to arraignment, Attorney Clemment visited D.H.

four times while he was incarcerated at the Dane County jail.

D.H. was arraigned on March 8, 2016.                               Attorney Clemment moved

for a speedy trial even though discovery was ongoing.                                      Attorney

Clemment subsequently filed requests for discovery, a motion to

sequester the jury, and a number of motions in limine seeking to

exclude       certain          evidence,         including               evidence        of    prior

convictions, DNA evidence, and GPS evidence.

       ¶6     The       circuit       court         held       a      hearing       on     Attorney

Clemment's motions on May 3, 2016.                         Attorney Clemment failed to

submit      any    case       law   or    evidence         to      support       her     motion     to

sequester the jury and for that reason the circuit court denied

the motion.         Attorney Clemment withdrew her motion in limine to

exclude evidence of prior convictions after an exchange with the

circuit court showed she had misunderstood the appropriate legal
standard for the motion.

       ¶7     As to the speedy trial motion, the circuit court noted

that Attorney Clemment had not hired an investigator, had not

retained any DNA, GPS, or pathology experts, had not filed a

witness     list       that    identified        any       witnesses        other      than    those

identified        by    the     state,        and     had       not      received        additional

discovery forthcoming from the state.                               In addition, D.H. was

then   serving         time     for      other      crimes         and    thus    would       not   be
prejudiced by having a speedy trial request denied.                                    The circuit
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court continued D.H.'s case and strongly urged Attorney Clemment

to associate more experienced trial counsel to assist her in the

case.

       ¶8     By this point, Attorney Clemment had visited D.H. four

more     times,     including      two     visits       to     the     Dodge      County

Correctional Institution in Waupun.                  In September of 2016, D.H.

was    transferred      to   the   Green       Bay    Correctional          Institution.

After    April     5,   2016,     Attorney      Clemment       made    no    additional

personal visits to D.H. but rather communicated with him by

telephone and letter.             Attorney Clemment never associated any

experienced counsel on the case.

       ¶9     On August 29, 2016, the circuit court held a hearing

on Attorney Clemment's motion to suppress DNA evidence.                               The

motion alleged that a search warrant to obtain D.H.'s DNA was

not signed by a judge and was thus invalid.                            Testimony and

evidence introduced during the hearing showed that a judge had

signed the search warrant and it was legally valid.                            Moreover,

even if D.H.'s motion had been granted, the state would have
simply gotten another search warrant to obtain the DNA samples,

which would defeat the purpose of the motion.                        Accordingly, the

circuit court denied the motion.

       ¶10    During the August 29, 2016 motion hearing, the circuit

court noted that Attorney Clemment had not filed a witness list

but had simply reserved the right to call witnesses identified

by the state.       The circuit court reminded Attorney Clemment that

she     had   no   right     to    call    the       state's    witnesses        without
specifically referencing each witness on her own list.                                The
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circuit     court       scheduled        a    hearing           on    the       pending       state's

motions, and it admonished both parties to be prepared to talk

about the evidentiary issues.                          At that time Attorney Clemment

had not filed any non-evidentiary motions.

    ¶11     Another          motion      hearing         took    place      on    September         28,

2016, less than two weeks before the scheduled trial date.                                           At

this hearing the state noted that Attorney Clemment had not

reviewed    any        of    the    physical           evidence       in    the    case       despite

numerous    offers          by     the   state         to    schedule       a    review       of    the

evidence.    Attorney Clemment said she had been ill.

    ¶12     During          the    September           28,   2016     hearing,         the    circuit

court   considered           the     state's       motion        in    limine          regarding      a

variety     of        standard      pre-trial           evidentiary         issues,          such    as

exclusion        of     witnesses,        exclusion           of      evidence         not     shown,

character evidence, other acts evidence, impeachment by prior

conviction, and alibi evidence.                             Attorney Clemment raised no

objection to any of the state's individual requests.

    ¶13     At one point, after Attorney Clemment did not object
to the exclusion of "golden rule" comments, the circuit court

asked her if she knew what the "golden rule" was.                                            Attorney

Clemment    did        not       know.       The       circuit       court       asked       Attorney

Clemment if she knew what exclusion of witnesses meant, and she

could not adequately answer the question correctly.                                          Attorney

Clemment was also unable to answer questions from the circuit

court about what "impeachment by prior conviction" meant, and

she was unable to recite the specific statutory procedures for


                                                   5
                                                                     No.   2017AP1933-D



addressing when a witness could be impeached based on a prior

conviction.

    ¶14    The circuit court asked Attorney Clemment why she did

not object to the exclusion of alibi evidence when it appeared

that she had planned to introduce evidence at trial showing that

D.H. was not at the scene of the crime.                  Attorney Clemment could

not adequately answer the circuit court's questions about the

meaning   of    "effect    of     arrest       and    conviction"     or   "known   or

unknown third party acts evidence."                   Attorney Clemment was also

unable to explain the difference between testimonial and non-

testimonial evidence in the context of the confrontation clause

or recall the key United States Supreme Court case discussing

these issues.

    ¶15    At    this     point    the      circuit      court   determined       that

Attorney Clemment was not competent to represent D.H., that she

had not acted diligently in representing him, that she had not

communicated appropriately with him, and that overall she was

not providing effective legal representation to her client.                         The
circuit court noted that Attorney Clemment had not provided all

of the police reports to D.H., she had not reviewed all of the

physical evidence in the case, she had not hired an investigator

to interview any witnesses, she had not hired any experts, and

she had not received all of the discovery in the case.                              The

circuit court said, "I find you grossly incompetent and I am

removing you from this case."

    ¶16    Following      her     removal      from    the   case,    D.H.'s   sister
contacted Attorney Clemment and requested a full refund of the
                                           6
                                                          No.    2017AP1933-D



$5,000 fee so she could hire a new attorney for her brother.

Attorney Clemment agreed to provide a full refund but said due

to   economic   hardship   she     was    unable   to   repay    the   money

immediately.

     ¶17    Attorney   Clemment     did      not   provide      D.H.   post-

termination notices as required by supreme court rules, nor did

she refund the $5,000 fee or make arrangements to do so.

     ¶18    The OLR's complaint alleged the following counts of

misconduct:

                                 COUNT ONE

     By failing to provide competent representation to
     D.H., and, in addition, by failing to associate more
     experienced counsel on the case, Attorney Clemment
     violated SCR 20:1.1.1
                                 COUNT TWO

     By   failing   to  consult    sufficiently  with D.H.
     concerning the means by which the objectives of the
     representation were to be pursued, Attorney Clemment
     violated SCR 20:1.2(a)2 and SCR 20:1.4(a)(2).3

     1
       SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client.    Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
     2
         SCR 20:1.2(a) provides:

           Subject to pars. (c) and (d), a lawyer shall
     abide    by   a  client's   decisions   concerning   the
     objectives of representation and, as required by SCR
     20:1.4, shall consult with the client as to the means
     by which they are to be pursued.      A lawyer may take
     such action on behalf of the client as is impliedly
     authorized to carry out the representation. A lawyer
     shall abide by a client's decision whether to settle a
     matter.     In a criminal case or any proceeding that
                                                       (continued)
                                     7
                                                  No.     2017AP1933-D


                            COUNT THREE

    By failing to act diligently on D.H.'s              behalf,
    Attorney Clemment violated SCR 20:1.3.4

                            COUNT FOUR

    By failing to withdraw from the representation when
    continued representation of D.H. would result in a
    violation of the Rules of Professional Conduct,
    Attorney Clemment violated SCR 20:1.16(a)(1).5

                            COUNT FIVE

    By failing to provide to D.H. post-termination notices
    and an agreed upon refund following termination of the
    representation,     Attorney     Clemment     violated
                      6
    SCR 20:1.5(g)(2).



    could result in deprivation of liberty, the lawyer
    shall   abide   by   the  client's  decision,  after
    consultation with the lawyer, as to a plea to be
    entered, whether to waive jury trial and whether the
    client will testify.
    3
       SCR 20:1.4(a)(2) provides:   "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
    4
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    5
       SCR 20:1.16(a)(1) provides:       "Except as stated in
paragraph (c), a lawyer shall not represent a client or, where
representation   has   commenced,   shall   withdraw   from   the
representation of a client if the representation will result in
violation of the Rules of Professional Conduct or other law."
    6
        SCR 20:1.5(g)(2) provides:

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

         a. A final accounting, or an accounting from the
    date of the lawyer's most recent statement to the end
                                                   (continued)
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                               COUNT SIX

    After agreeing to a full refund, by failing to refund
    the full $5,000 in advanced fees received from B.H.
    following the termination of her representation,
    Attorney Clemment violated SCR 20:1.16(d).7
    ¶19    Attorney Clemment did not file an answer to the OLR's

complaint.   The referee was appointed on January 24, 2018.    At a

continued scheduling conference held on March 9, 2018, the OLR

made an oral motion for default.       Attorney Clemment did not



    of the representation, regarding the client's advanced
    fee payment.

         b. A refund of any unearned advanced fees and
    costs.

         c. 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.

         d. 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.
    7
        SCR 20:1.16(d) provides:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    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 expenses that has not
    been earned or incurred. The lawyer may retain papers
    relating to the client to the extent permitted by
    other law.


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oppose the motion, and the referee granted it and recommended

that Attorney Clemment be declared in default.

      ¶20    The referee issued his report and recommendation on

March 23, 2018.         The referee found that the OLR had met its

burden of proof with respect to all of the counts of misconduct

alleged in the OLR's complaint.                The referee concluded that a

public reprimand, which was the level of discipline sought by

the OLR, was an appropriate sanction for Attorney Clemment's

misconduct.

      ¶21    The    referee    said    that    the    purpose    of      professional

discipline in Wisconsin, as stated in the preamble to SCR 21, is

to protect the public from misconduct by persons practicing law

in Wisconsin.         The referee noted that in In re Disciplinary

Proceedings Against Kelsay, 155 Wis. 2d 480, 481, 455 N.W.2d 871

(1990),     this    court     said    that    the    purposes    of      professional

discipline     are:     (1)     to    protect       the   public      from       further

misconduct     by    the     offending       attorney;     (2)   to      deter     other

attorneys from engaging in similar misconduct; and (3) to foster
the   attorney's      rehabilitation.          The   referee     also     noted     that

Attorney Clemment has already been the subject of one public

reprimand.     The referee said while the previous public reprimand

makes a second public reprimand "somewhat lenient," the referee

expressed    hope     that    Attorney       Clemment     will   learn     from     this

proceeding     and     be     more    committed      in    the     future     to     her

obligations, both to the Rules of Professional Conduct and to

her clients.


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    ¶22     The OLR requested that Attorney Clemment be ordered to

pay restitution to B.H. in the amount of $5,000.                         The referee

noted that Attorney Clemment did spend some time on D.H.'s case

and she might have been able to justify retaining part of those

funds if her agreement had been on an hourly basis.                       The referee

noted, however, that B.H. paid Attorney Clemment $5,000 as a

flat fee, and the definition of a flat fee states that it may

not be billed against an hourly rate.                    For that reason, the

referee deemed it appropriate, given that Attorney Clemment did

not complete the service contracted for, that she be required to

return     the   entire    amount        to     B.H.    Finally,         the    referee

recommended that Attorney Clemment be assessed the full costs of

this disciplinary proceeding.

    ¶23     Attorney Clemment has not filed an appeal from the

referee's    report.       Although       Attorney     Clemment     was        given   an

opportunity to file an answer and present a defense to the OLR's

complaint, she failed to do so.                 Accordingly, we declare her to

be in default.
    ¶24     A referee's findings of fact are affirmed unless they

are 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 may impose

whatever    sanction      it   sees      fit,    regardless   of    the        referee's

recommendation.        See     In   re    Disciplinary    Proceedings            Against

Widule, 2003 WI 43, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

    ¶25     There is no showing that any of the referee's findings
of fact are clearly erroneous.                Accordingly, we adopt them.              We
                                           11
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also agree with the referee's conclusions of law that Attorney

Clemment violated the supreme court rules set forth above.

       ¶26   With respect to the appropriate level of discipline,

upon careful review of this matter, we agree with the referee's

recommendation that Attorney Clemment be publicly reprimanded.

As the referee noted, generally, discipline is progressive in

nature.       See,        e.g.,    In     re    Disciplinary       Proceedings             Against

Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501.                                        For

that    reason    we      share     the      referee's     concern      as    to        whether   a

second public reprimand is sufficient discipline for Attorney

Clemment's most recent transgressions, particularly since both

cases    involved         failing       to     provide     competent         representation.

However, at times this court has imposed a public reprimand

despite      prior     reprimands.              See,      e.g.,    In   re         Disciplinary

Proceedings       Against         Dade,      2017    WI   51,     375   Wis. 2d 140,            895

N.W.2d 37.        We note that Attorney Clemment's first consensual

reprimand was imposed seven years ago, and she has no other

disciplinary history.               On balance, we conclude that a second
public reprimand is an appropriate sanction.

       ¶27   We also agree with the referee that Attorney Clemment

should be required to make restitution to B.H. in the amount of

$5,000 and that she should be assessed the full costs of this

proceeding.

       ¶28   IT      IS     ORDERED          that    Sarah      Clemment           is     publicly

reprimanded.




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                                                  No.   2017AP1933-D



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

of this order Sarah Clemment shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $802.19.

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

of this order Sarah Clemment shall pay restitution to B.H. in

the amount of $5,000.

    ¶31   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.




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    No.   2017AP1933-D




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