                                                              2013 WI 98

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2011AP2946-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Suzanne M. Smith, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Suzanne M. Smith,
                                  Respondent-Appellant.



                             DISCIPLINARY PROCEEDINGS AGAINST SMITH

OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant, there was a brief by Suzanne
M. Smith, Burlington.


       For the Office of Lawyer Regulation, there was a brief by
Julie M. Spoke.
                                                                     2013 WI 98
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2011AP2946-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Suzanne M. Smith, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
            Complainant-Respondent,
                                                             DEC 12, 2013
      v.
                                                                Diane M. Fremgen
                                                             Clerk of Supreme Court
Suzanne M. Smith,

            Respondent-Appellant.




      ATTORNEY    disciplinary   proceeding.           Attorney's        license

suspended.



      ¶1    PER CURIAM.    Attorney Suzanne M. Smith appeals the

report of Hannah C. Dugan, referee, recommending discipline of a

six-month    license   suspension,   the   imposition        of    costs,      and

restitution to the State Public Defender's Office (SPD) in the

amount of $112.     The referee found that Attorney Smith committed

20 of the 22 charged counts of misconduct.           Nine of these counts

were the subject of a stipulation entered into by the parties
                                                                             No.        2011AP2946-D



and    accepted    by    the       referee       shortly        before      the    disciplinary

hearing in this matter.

       ¶2    We adopt both the stipulated and the non-stipulated

findings     of   fact    and       conclusions            of   law    set       forth      in     the

referee's report.         We conclude that the referee's reasoning with

respect      to    discipline             and         restitution           is         persuasive.

Accordingly, this court concludes that a six-month suspension of

Attorney Smith's license to practice law in Wisconsin is an

appropriate sanction for her violations.                          We further agree with

the referee that Attorney Smith shall bear the costs of this

disciplinary      proceeding,            which       are   $13,959.26        as     of      July    9,

2013, and shall reimburse the State Public Defender's Office in

the amount of $112.

       ¶3    Attorney         Smith       was     licensed        to     practice           law    in

Wisconsin in 1995 and practices in Burlington.                              In 2009 Attorney

Smith was publicly reprimanded for misconduct in three separate

matters.     The misconduct generally consisted of failing to act

with    reasonable       diligence         and       promptness        in    representing            a
client,     failing     to     communicate            appropriately          with       a   client,

failing     to    abide       by     a    client's         decisions         concerning            the

objectives of representation, and failing to provide competent

representation.           Public         Reprimand         of   Suzanne       M.       Smith,      No.

2009-17.

       ¶4    On   December          22,    2011,       the      OLR    filed       a     complaint

against Attorney Smith.               The complaint, as later amended in May

2012,    consisted       of    some       182     separately          numbered         paragraphs
describing 22 counts of misconduct in connection with Attorney
                                                 2
                                                                      No.     2011AP2946-D



Smith's work on four matters.               The complaint sought a six-month

suspension of Attorney Smith's law license, as well as $112 in

restitution to the SPD.

       ¶5   Attorney Smith filed answers to the complaint and the

amended complaint in which she denied committing misconduct and

requested the dismissal of the disciplinary action.

       ¶6   Shortly before the scheduled hearing, Attorney Smith

entered into a partial stipulation in which she pled no contest

to nine of the 22 charged counts of misconduct.                             The referee

accepted the stipulation.

       ¶7   Following a two-day disciplinary hearing, the referee

determined   that      the   OLR    had   proven        misconduct     in     11    of    the

remaining 13 non-stipulated counts.                The OLR does not appeal the

dismissal    of   the    two     counts     on    which       the   referee    found      no

misconduct; thus, these counts are not discussed herein.

       ¶8   The   referee's        report       spans    45    single-spaced         pages.

The referee concluded that the record supported a total of 20

counts of misconduct.              We do not repeat all of the factual
findings and legal conclusions made by the referee, and instead

provide the following summary of the referee's report.

Mr. and Mrs. C. Matter (Counts 1 through 3)

       ¶9   Three       counts     of     professional          misconduct          involve

Attorney Smith's representation of Mrs. C. in a divorce action

between Mr. and Mrs. C.            As part of the divorce proceedings, on

November 2, 2009, Mr. C. gave Attorney Smith a check for $309.84

made   payable    to     Attorney       Smith's     trust       account.           Also    on
November 2, 2009, Attorney Smith received a federal tax refund
                                            3
                                                                     No.     2011AP2946-D



check in the amount of $1,490.16 payable jointly to Mr. and Mrs.

C. and endorsed by Mr. C.             Attorney Smith was to deposit the

funds from both checks into her trust account and pay a portion

of Mr. and Mrs. C.'s 2008 real estate taxes from that account.

However, the checks remained in Attorney Smith's desk drawer for

several weeks; Attorney Smith did not deposit the $309.84 check

into her trust account until December 31, 2009, and did not

deposit the $1,490.16 check until January 19, 2010.

      ¶10     By April 2010 Attorney Smith still had not paid the

designated trust account funds against Mr. and Mrs. C.'s 2008

real estate taxes.       On April 20, 2010, Mr. C.'s attorney wrote

to Attorney Smith to point out that the taxes remained unpaid.

Attorney Smith did not respond.

      ¶11     Attorney Smith did not apply the funds toward Mr. and

Mrs. C.'s 2008 real estate taxes until May 28, 2010.                         The delay

in   paying    the   taxes     caused      the       county   to    assess     $120   in

additional interest and penalties against Mr. and Mrs. C.

      ¶12     Based on these facts, the referee determined that the
following misconduct occurred:

      • By failing to promptly deposit in her trust account the

          check   from   Mr.    C.   and       the    federal      tax   refund   check

          payable    jointly    to   Mr.       and     Mrs.   C.,    Attorney     Smith

          violated SCR 20:1.15(b)(1).1

      1
          SCR 20:1.15(b)(l) provides as follows: Separate account.

           A lawyer shall hold in trust, separate from the
      lawyer's own property, that property of clients and
      3rd parties that is in the lawyer's possession in
      connection with a representation.     All funds of
                                           4
                                                                   No.   2011AP2946-D



     • By failing to promptly apply the funds at issue toward

         the 2008 property taxes owed by Mr. and Mrs. C., Attorney

         Smith violated SCR 20:1.15(d)(l).2

     • By ignoring the inquiry from Mr. C.'s attorney as to the

         status    of   the    trust    account    funds     and   by    failing   to

         render any written accounting of the trust property when

         she     distributed     the    funds     to   the    county     treasurer,

         Attorney Smith violated SCR 20:1.15(d)(2).3

T.H. Matter (Counts 4, 5, 6, and 8)4

     ¶13    In    August      2008     T.H.   retained       Attorney     Smith    to

represent her in a post-adjudication matter in a paternity case.

During the course of this representation, Attorney Smith did not

     clients and 3rd parties paid to a lawyer or law firm
     in connection with a representation shall be deposited
     in one or more identifiable trust accounts.
     2
         SCR 20:1.15(d)(l) provides:          Notice and disbursement.

          Upon receiving funds or other property in which a
     client has an interest, or in which the lawyer has
     received notice that a 3rd party has an interest
     identified by a lien, court order, judgment, or
     contract, the lawyer shall promptly notify the client
     or 3rd party in writing. Except as stated in this rule
     or otherwise permitted by law or by agreement with the
     client, the lawyer shall promptly deliver to the
     client or 3rd party any funds or other property that
     the client or 3rd party is entitled to receive.
     3
       SCR 20:1.15(d)(2) provides: "Upon final distribution of
any trust property or upon request by the client or a 3rd party
having an ownership interest in the property, the lawyer shall
promptly render a full written accounting regarding the
property."
     4
       The referee dismissed Counts 7 and 9——an outcome the OLR
does not appeal.

                                          5
                                                                     No.   2011AP2946-D



timely respond to T.H.'s multiple requests for a bill.                         Attorney

Smith    also     did     not   timely      comply    with   the     circuit     court's

instruction to prepare a final order reflecting the parties'

eventual    stipulation         on    all   issues.        T.H.    informed    Attorney

Smith that due to Attorney Smith's delay in preparing a final

order,     T.H.     was     unable     to     prove    her    daughter's       father's

violations of certain terms of the custodial arrangement for her

daughter.       T.H. also asked Attorney Smith to send her a copy of

the parties' signed stipulation; Attorney Smith never did so.

When Attorney Smith eventually prepared a final bill for her

work on T.H.'s case, the bill included an entry for attending

and traveling to and from a circuit court hearing that Attorney

Smith did not attend.

    ¶14     Based on these facts, the referee determined that the

following misconduct occurred:

    • By failing to timely prepare a final order implementing a

         stipulation of the parties, Attorney Smith violated SCR

         20:1.3.5
    • By failing to timely provide her client with a copy of

         the      stipulation        signed   by     the   parties    as   her    client

         requested, Attorney Smith violated SCR 20:1.4(a)(4).6




    5
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    6
       SCR 20:1.4(a)(4) states that a lawyer shall "promptly
comply    with   reasonable  requests by   the  client   for
information; . . . ."

                                              6
                                                     No.   2011AP2946-D



    • By failing to timely provide her client with a copy of

        her bill for legal services despite repeated requests by

        her client, Attorney Smith violated SCR 20:1.5(b)(3).7

    • By billing her client for an appearance and travel to and

        from a circuit court hearing that Attorney Smith did not

        attend, and by failing to timely correct her billing,

        Attorney Smith violated SCR 20:1.5(a).8
    7
       SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
    8
        SCR 20:1.5(a) provides as follows:

         A lawyer shall not make an agreement for, charge,
    or collect an unreasonable fee or an unreasonable
    amount for expenses. The factors to be considered in
    determining the reasonableness of a fee include the
    following:

         (1) the time and labor required, the novelty and
    difficulty of the questions involved, and the skill
    requisite to perform the legal service properly;

         (2) the likelihood, if apparent to the client
    that the acceptance of the particular employment will
    preclude other employment by the lawyer;

         (3) the fee customarily charged in the locality
    for similar legal services;

           (4) the amount involved and the results obtained;

         (5) the time limitations imposed by the client or
    by the circumstances;

         (6) the nature and length      of   the   professional
    relationship with the client;

         (7) the experience, reputation, and ability          of
    the lawyer or lawyers performing the services; and

           (8) whether the fee is fixed or contingent.

                                 7
                                                                               No.       2011AP2946-D



M.T. Matter (Counts 10 through 17)

       ¶15     In    July       2009    the       SPD    appointed        Attorney        Smith       to

represent      M.T.        regarding         the     possible        revocation          of     M.T.'s

extended      supervision.              Attorney         Smith   represented          M.T.       at    a

hearing at which M.T. stipulated to having engaged in conduct

that    violated          the    rules       of    his     extended       supervision.                On

September 30, 2009, the Administrative Law Judge (ALJ) issued a

decision revoking M.T.'s extended supervision and returning him

to prison for the remaining time available on his sentence.                                          The

ALJ's decision included information related to challenging the

decision, first by an administrative appeal to be filed on or

before       October       15,       2009,        with    subsequent          judicial          review

available by a writ of certiorari to be commenced within 45 days

of the subsequent decision.

       ¶16     On    October         15,     2009,       Attorney      Smith     faxed,         as    an

administrative appeal of the revocation decision, a one-and-a-

half    page    letter          to     the    Administrator          of    the       Division         of

Hearings and Appeals.                  Attorney Smith did not append supporting
materials.

       ¶17     On October 22, 2009, the Administrator of the Division

of Hearings and Appeals issued an appeal decision that sustained

the    original          decision      and    order       of   the     ALJ.      The       decision

included       notice       that       to     appeal       the    decision,          a     writ       of

certiorari action had to be commenced within 45 days.                                         Attorney

Smith agreed to seek a writ of certiorari on M.T.'s behalf.

       ¶18     Attorney Smith failed to file a petition for writ of
certiorari          on    M.T.'s       behalf        before      the      December         7,     2009
                                                   8
                                                           No.   2011AP2946-D



deadline.      When the SPD's office, after receiving a complaint

from M.T., inquired with Attorney Smith about the status of the

case, Attorney Smith blamed her delay in filing the petition on

the fact that she had previously been unaware of where M.T. was

housed within the correctional system.

       ¶19   Attorney Smith did not file the certiorari petition

until July 22, 2010——well past the filing deadline.                Attorney

Smith failed to include certain necessary items with her filing,

including a copy of the decision being challenged and either a

filing fee payment or a signed prisoner's petition and affidavit

of indigency.     The office of the clerk of circuit court notified

Attorney Smith of the deficiencies of her filing.                  Attorney

Smith promised to provide the missing documentation, but never

did so.      Despite the deficiencies in her filing, Attorney Smith

reported to M.T. that the writ had been filed.

       ¶20   In June 2011 Attorney Smith filed on M.T.'s behalf a

Wis.   Stat.   § 974.06   motion   to   modify   M.T.'s    sentence.     The

motion did not include any statement of the relief requested.
Although the motion stated that Attorney Smith would submit a

brief explaining the grounds for the motion, Attorney Smith did

not submit a brief.       At a hearing on the motion, Attorney Smith

told the circuit court that after she had filed the motion, the

applicable law changed such that she needed to amend her motion.

The circuit court ordered Attorney Smith to file an amended

motion and a supporting brief, plus any necessary supporting

affidavits.       Although   Attorney   Smith    advised   the   court   she


                                    9
                                                                          No.     2011AP2946-D



expected      to     file   the   motion     and    brief     within      ten     days,    she

failed to file an amended motion and brief.

       ¶21     Attorney Smith also failed to appear at the subsequent

hearing scheduled to address the merits of the § 974.06 motion.

On    the    morning    of    the     hearing,      Attorney       Smith    sent     a    text

message to M.T.'s wife stating that she was sick and would have

to reschedule the hearing.                In response texts, M.T.'s wife urged

Attorney Smith to attend the hearing.                       M.T.'s wife also asked

whether Attorney Smith would notify the circuit court of her

need    to     reschedule      the    hearing,      and     whether       Attorney       Smith

thought M.T. would be allowed to speak at the hearing.                              Attorney

Smith did not reply to these inquiries.

       ¶22     The    hearing     proceeded       without    Attorney           Smith.     The

circuit      court     dismissed      Attorney      Smith's    motion       for     sentence

modification without prejudice because it failed to set forth

the     specific      relief      requested        and    failed     to     substantively

discuss the applicable law.                  The circuit court gave Attorney

Smith    ten    days    to   file     a   motion     for    reconsideration          of    the
denial of the motion.                Attorney Smith failed to file a motion

for reconsideration.

       ¶23     Throughout her representation of M.T., Attorney Smith

failed to respond to numerous inquiries from M.T. and his wife,

made directly or relayed by the SPD's office, including requests

to provide M.T. with a copy of the certiorari filing.

       ¶24     Attorney      Smith    also   made        various    misrepresentations

regarding the status of her work and the reasons for her delay
in completing the work.               She falsely told M.T. that from March
                                             10
                                                                     No.   2011AP2946-D



to May 2010, she had been too ill to file pleadings on his

behalf.       Attorney Smith appeared in court on behalf of numerous

other clients during this time period, thereby disproving her

representation that she was too ill to file pleadings.                       Attorney

Smith also falsely told the office of the clerk of circuit court

that    she     was    in    possession      of   the    documents     necessary     to

complete the deficient certiorari filing of July 22, 2010.

       ¶25    Attorney       Smith    also    showed     an   inadequate    level    of

cooperation and honesty during the OLR's investigation of her

representation of M.T.               During the OLR investigation, Attorney

Smith   failed        to    answer   questions     and    furnish     documents     and

information requested by the OLR, misrepresented to the OLR that

she was unable to file the certiorari petition from March to May

2010 due to illness, and misrepresented to the OLR that certain

documents she provided to the OLR had been ready to file in

March 2010.

       ¶26    Based on these facts, the referee determined that the

following misconduct occurred:
       • By not being able to locate M.T. within the correctional

          system prior to December 2009, by not filing a petition

          for    writ       of   certiorari       in     proper   form     with     the

          documentation required by statute, and by filing a motion

          for sentence modification under Wis. Stat. § 974.06 so




                                             11
                                                                        No.     2011AP2946-D



         deficient that the court summarily dismissed it, Attorney

         Smith violated SCR 20:1.1.9

    • By       failing     to    file        a    timely     petition     for     writ    of

         certiorari; by failing to seek relief for her client from

         the filing deadline for a writ of certiorari; by failing

         to follow up on reminders from the office of the circuit

         court     clerk    concerning             missing     documents       needed     to

         complete her certiorari petition filing; by failing to

         promptly file and diligently pursue her motion to modify

         M.T.'s     sentence,       despite            being    given     an      extended

         opportunity to file an adequate amended motion, a brief,

         and supporting affidavits; and by generally neglecting

         her     representation         of       M.T.,     Attorney     Smith     violated

         SCR 20:1.3.10

    • By       repeatedly       failing          to   adequately      communicate        with

         M.T., Attorney Smith violated SCRs 20:1.4(a)(3) and (4).11

    • By failing to promptly explain the reasons she did not

         file a timely or proper petition for writ of certiorari,
         thereby preventing M.T. from making informed decisions

    9
       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."
    10
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    11
       SCRs 20:1.4(a)(3) and (4) state that a lawyer shall "(3)
keep the client reasonably informed about the status of the
matter;" and "(4) promptly comply with reasonable requests by
the client for information; . . . ."

                                             12
                                                                        No.    2011AP2946-D



         about the forms of relief available to him or his right

         to    seek    other    representation,              Attorney    Smith     violated

         SCR 20:1.4(b).12

    • By failing to comply with the circuit court order to file

         an     amended        motion       for        sentence    modification           and

         supporting brief, Attorney Smith violated SCR 20:3.4(c).13

    • By making misrepresentations to M.T., M.T.'s wife, and

         the    staff     of    the       SPD    that    a    petition       for   writ   of

         certiorari       had       been    filed       on    behalf    of    M.T.,     when

         Attorney Smith knew the only filing she ever made was

         untimely,       incomplete,             and    unacceptable;         by    falsely

         telling M.T. that from March to May 2010, she had been

         too ill to file pleadings that she falsely represented

         were ready to file; by representing to the office of the

         clerk of circuit court that she was in possession of

         papers       necessary      to    complete       her   deficient      certiorari

         filing;       and     by     generally         exhibiting       a    pattern     of

         dishonesty,         deceit    or       misrepresentation        throughout       her




    12
       SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
    13
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."

                                                13
                                                      No.    2011AP2946-D



         representation     of    M.T.,   Attorney   Smith     violated

         SCR 20:8.4(c).14

    • By failing to answer questions and furnish documents and

         information requested by the OLR in the course of its

         investigation and by failing to respond to an OLR letter

         requesting a response to a supplemental grievance filed

         by   M.T.,   Attorney    Smith   violated   SCR     22.03(2),15

         SCR 22.03(6),16 and SCR 20:8.4(h).17

    14
       SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
    15
         SCR 22.03(2) provides:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.     The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.       The director may
    allow additional time to respond.     Following receipt
    of the response, the director may conduct further
    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present   any
    information deemed relevant to the investigation.
    16
       SCR   22.03(6)   provides:   "In   the   course  of   the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent’s misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
    17
       SCR 20:8.4(h) says it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by
SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or
SCR 22.04(1); . . . ."

                                   14
                                                                            No.   2011AP2946-D



      • By misrepresenting to the OLR that she was unable to file

          a petition for writ of certiorari for M.T. from March to

          May 2010 due to illness, and by falsely representing that

          the petition documents she provided to the OLR had been

          ready     to   file      in    March      2010,    Attorney       Smith      violated

          SCR 22.03(6) and SCR 20:8.4(h).

D.D. Matter (Counts 18 through 22)

      ¶27     In 2008 the SPD appointed Attorney Smith to represent

D.D. with respect to appellate and postconviction matters in

three cases involving felony operating while intoxicated charges

in Milwaukee County.            D.D. pled guilty in each case.

      ¶28     Prior to Attorney Smith's representation of D.D., the

court    of   appeals       had    granted         D.D.'s    pro       se   request     for   an

extension      of    time    to     file       a    notice        of    intent    to       pursue

postconviction relief in all three cases.                          Attorney Smith began

her     representation        of        D.D.   after        the    expiration         of     that

deadline.

      ¶29     Over the next eight months, Attorney Smith made little
effort to pursue substantive relief on D.D.'s behalf.                                  However,

she deliberately gave D.D. the impression that she had filed or

would file pleadings on his behalf.                         She failed to keep D.D.

adequately informed about the status of his matters, including

explaining failures to file and delays on her part.                                    Attorney

Smith also made false claims to the circuit court that she had

previously prepared and submitted motions on D.D.'s behalf.

      ¶30     Attorney Smith's time slips to the SPD for her work on
D.D.'s      case    include        entries         for   "Draft        motion     to       modify
                                               15
                                                                         No.    2011AP2946-D



sentence" and "Finalize motion and file."                              However, Attorney

Smith never filed a motion to modify sentence with the circuit

court   during     the      time    period     covered       by   the    time    slips    in

question.       Attorney Smith's claimed time in the above entries

totaled 2.8 hours, and she was paid $112 by the SPD as a result

of these entries.

      ¶31      Attorney Smith eventually prepared a motion to modify

sentence and a motion for postconviction relief, both of which

the   circuit     court      rejected.            The    circuit       court    instructed

Attorney       Smith   to     prepare     an      order      denying      postconviction

relief.     She failed to do so.

      ¶32      In December 2009, after receiving a pro se complaint

from D.D. about Attorney Smith, the court of appeals directed

Attorney Smith, under threat of sanctions, to answer various

questions       concerning         her   representation           of    D.D.       In    her

responses, Attorney Smith informed the court of appeals that she

had allowed appellate deadlines to lapse because she had been

suffering from headaches and flu-like symptoms.
      ¶33      In January 2010 the SPD filed a report with the court

of appeals advising the court that Attorney Smith had agreed to

remove herself from the list of attorneys certified to take SPD

appointments, and thus, she could no longer represent D.D.                               The

court     of    appeals      ordered       Attorney          Smith      discharged      from

representing D.D. and ordered the SPD to appoint new counsel.

      ¶34      Attorney      Smith       showed         an    inadequate        level     of

cooperation and honesty during the OLR's investigation of her
representation of D.D.             Attorney Smith told the OLR that she had
                                             16
                                                                      No.        2011AP2946-D



motions prepared to file on D.D.'s behalf by a particular point

in time, but her billing records showed otherwise.                                 Attorney

Smith also failed to provide the OLR with a timely response to

its   requests      for      copies   of    her    billing    records       in    the    D.D.

matter, for details of her work, for copies of all motions she

claimed to have filed, and for an explanation for the billing

discrepancy described above.

      ¶35    Based on these facts, the referee determined that the

following misconduct occurred:

      • By    allowing         appellate      deadlines      to    lapse    and     by    her

           general inattention to D.D.'s interests, Attorney Smith

           violated SCR 20:1.3.

      • By failing to prepare an order denying postconviction

           relief      consistent      with    the     directive     of     the     circuit

           court, Attorney Smith violated SCR 20:3.4(c).

      • By deliberately giving D.D. the impression that she would

           file   or    had    filed       pleadings    on   his    behalf        and    then

           failing to keep him adequately informed about the status
           of his matters, including explaining failures to file and

           delays       on      her     part,        Attorney       Smith          violated

           SCR 20:1.4(a)(3).

      • By making repeated false claims to the court that she had

           previously prepared and sent motions on D.D.'s behalf,

           Attorney Smith violated SCR 20:3.3(a)(1).18
      18
       SCR 20:3.3(a)(1) states a lawyer shall not knowingly
"make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."

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    • By falsely stating to the OLR that she had motions ready

          on behalf of D.D. and by failing to answer questions and

          provide documents requested by the OLR, Attorney Smith

          violated SCR 22.03(6) and SCR 20:8.4(h).

    ¶36      After determining that Attorney Smith had committed

the misconduct in the 20 counts described above, the referee

recommended     a     six-month         suspension          of    Attorney        Smith's       law

license.      In support of this recommendation, the referee noted

that,   in    both       this   disciplinary          matter       and   Attorney         Smith's

earlier public reprimand, Attorney Smith displayed a tendency

toward failing to communicate appropriately with her clients and

offering dubious excuses for her substandard and untimely work.

The referee expressed serious concerns about Attorney Smith's

law firm management and client advocacy skills.                                   The referee

determined     that       Attorney       Smith's      medical          issues     provided      an

explanation      for       some,        but     not    all,       of     Attorney         Smith's

difficulties        in     providing          effective      counsel.             The     referee

determined     that       many     of    the     unfavorable           facts      of     Attorney
Smith's    conduct        showed    that,       for    reasons         independent        of    her

medical      issues,       Attorney       Smith       was        dilatory       in     her     case

management and in meeting her duties to her clients.

    ¶37      As to the appropriate monetary sanctions, the referee

recommended that Attorney Smith should be assessed the entire

costs of the disciplinary proceeding, which total $13,959.26 as

of July 9, 2013.           The referee further recommended that Attorney

Smith should be required to make restitution to the SPD in the


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amount of $112, the amount of the billing discrepancy in the

D.D. case.

    ¶38     Attorney Smith appeals.             The level of discipline and

the amount of awardable costs are the only disputes.                       Turning

first to the level of discipline, Attorney Smith argues that the

recommended six-month suspension does not sufficiently take into

account various mitigating factors, which include her allegation

that both she and her husband had significant health issues

during the time period in question, her expression of remorse

for her conduct, her recent efforts to improve her law practice

management and organization, and her history of serving low-

income clients.         Attorney Smith also argues that although she

has been publicly reprimanded once before, moving from a public

reprimand    directly       to     a     six-month     suspension       would    be

unreasonably harsh.

    ¶39     The    OLR    argues       that     a   six-month   suspension       is

appropriate.      It argues that the record discloses few, if any,

legitimate mitigating factors.                It claims that suspensions are
frequently predicated on misconduct like that at issue here;

i.e.,   misconduct       that    spans    multiple     clients,       incorporates

multiple counts of professional wrongdoing, and shows patterns

of unprofessional behavior.            The OLR also points out that this

court has issued substantial suspensions even when the lawyer at

issue does not have a lengthy disciplinary history.                     See e.g.,

In re Disciplinary Proceedings Against DeGracie, 2004 WI 44, 270

Wis. 2d 640,      678    N.W.2d 252      (eight-month    suspension       for   six


                                         19
                                                                                    No.        2011AP2946-D



counts of misconduct where attorney had no previous disciplinary

history).

       ¶40    We conclude that the referee's findings of fact are

not    clearly      erroneous.               See     In    re        Disciplinary          Proceedings

Against      Eisenberg,          2004         WI     14,        ¶5,     269     Wis. 2d 43,             675

N.W.2d 747.          Although Attorney Smith argues that the referee

failed to give adequate weight to her testimony as to the extent

of her medical issues during the period in question, the referee

implicitly weighed the credibility of Attorney Smith's testimony

in this regard when the referee decided that some portion of her

misconduct        was    related        to    her     medical          issues.            We    will   not

reassess Attorney Smith's credibility.                                See id.         We also agree

with   the    referee       that        the    facts        of       record    demonstrate             that

Attorney Smith committed each of the 20 counts of professional

misconduct as determined by the referee.

       ¶41    With       respect       to     the     discipline          to     be       imposed,      we

determine         the     appropriate              level        of     discipline           given       the

particular        facts    of     each       case,        independent          of     the       referee's
recommendation, but benefiting from it.                                See In re Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660

N.W.2d 686.             After    careful           consideration          of     the       report      and

recommendation,           the    record        in        this    matter,       and        the     written

statements         of      the         parties,            we        accept         the         referee's

recommendation regarding suspension.

       ¶42    Although          there    are        both    mitigating          and        aggravating

factors      to    consider       in    weighing           the       seriousness          of     Attorney
Smith's misconduct, the balance does not tip in Attorney Smith's
                                                    20
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favor.       Weighing in Attorney Smith's favor are the facts that

she did not operate with a malicious intent, she did not benefit

personally from her misconduct, and, according to the referee,

she experienced medical problems during the period in question

that can explain some portion of her misconduct.                          Also weighing

in Attorney Smith's favor is the fact that she has expressed

remorse      for   her     behavior.         Weighing        more   heavily      against

Attorney      Smith    are   the     facts       that    both    this    case    and   her

previous      disciplinary        case    show    a     troubling   pattern      of    poor

bookkeeping, office mismanagement, inadequate communication with

clients, and insufficient concern for her clients' reasonable

needs.       Attorney Smith also has displayed a pattern of excuse-

making,      blame-shifting,        and    obfuscation          which    suggests      that

these types of transgressions could happen again.

       ¶43    In   light     of    the     circumstances         presented,      we     are

persuaded that the referee's reasoning is sound and that a six-

month license suspension is necessary to advance the objectives

of   lawyer      discipline.        A     six-month       suspension      will    require
Attorney Smith to petition this court for reinstatement under

SCR 22.28(3).         Doing so will require her to demonstrate to this

court, before she resumes practice, that she has made efforts to

remedy the causes of her repeated failures to serve her clients.

       ¶44    We further conclude that full costs in the amount of

$13,956.26 are to be imposed on Attorney Smith.                         Attorney Smith

does not argue that there are extraordinary circumstances here

that     would     justify    a    departure          from   the    court's      standard
practice of imposing full costs against the respondent attorney.
                                            21
                                                                          No.     2011AP2946-D



See   SCR    22.24(1m).           Attorney      Smith      argues     instead      that      the

amount      of    costs     to    be    imposed     against      her      will     impose     a

significant hardship given her current financial status.                                      We

will not adjust the amount of costs imposed against Attorney

Smith based on a claim of lack of assets at this time.                              Attorney

Smith's     allegations          of    financial    hardship      are     an     appropriate

consideration for establishment of a payment plan with the OLR;

assigning greater significance to them at this point would be

premature.

      ¶45        We   further     agree    with     the    referee's       recommendation

that Attorney Smith make a restitution payment to the SPD in the

amount of $112.            Attorney Smith does not dispute the referee's

restitution           recommendation,           and        we     award          restitution

accordingly.

      ¶46        IT IS ORDERED that the license of Suzanne M. Smith to

practice     law      in   Wisconsin      is   suspended        for   a    period       of   six

months, effective January 16, 2014.

      ¶47        IT IS FURTHER ORDERED that Suzanne M. Smith shall pay
restitution in the amount of $112 to the Office of the State

Public Defender, within 30 days of the date of this order.

      ¶48        IT   IS   FURTHER      ORDERED     that    Suzanne       M.    Smith    shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

suspended.

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

of this order, Suzanne M. Smith shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
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    ¶50   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

    ¶51   IT   IS    FURTHER   ORDERED   that   compliance   with    all

conditions of this order is required for reinstatement.              See

SCR 22.29(4)(c).




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