                                                              2019 WI 17

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2018AP520-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Melinda Alfredson, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Melinda Alfredson,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST ALFREDSON

OPINION FILED:          February 26, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                                2019 WI 17
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.    2018AP520-D


STATE OF WISCONSIN                                  :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Melinda Alfredson, Attorney at Law:

Office of Lawyer Regulation,                                               FILED
            Complainant,                                              FEB 26, 2019
      v.                                                                 Sheila T. Reiff
                                                                      Clerk of Supreme Court
Melinda Alfredson,

            Respondent.




      ATTORNEY     disciplinary        proceeding.             Attorney's         license
suspended.


      ¶1    PER   CURIAM.       We   review    the       report      of   the    referee,
Attorney John Nicholas Schweitzer, recommending that the court
suspend the Wisconsin law license of Attorney Melinda Alfredson
for   90   days   and   order    her   to     pay       the   full     costs     of    this

disciplinary proceeding.             The referee wrote the report after
Attorney Alfredson and the Office of Lawyer Regulation (OLR)
entered    into   a     stipulation     concerning            Attorney      Alfredson's
misconduct in two client matters and her failure to cooperate
with the OLR's investigation into her misconduct.                         Neither party
                                                                                 No.       2018AP520-D



has appealed from the referee's report and recommendation, and
thus        our        review           proceeds          under      Supreme          Court        Rule
(SCR) 22.17(2).1
       ¶2         We    agree           that     Attorney         Alfredson's         professional
misconduct warrants a 90-day suspension.                             We further agree that
Attorney Alfredson should pay the full costs of this matter,
which total $2,649.59 as of November 15, 2018.                                   No restitution
was sought and none is ordered.
       ¶3         Attorney Alfredson obtained her Wisconsin law license
in 2009.          In 2017, this court suspended her law license for 60
days       based       on    16     counts       of   misconduct         arising      out     of    her
representation               of     two     clients,        her     various      trust        account

violations,            and        her     failure     to     cooperate         with     the     OLR's
investigation               into    her    misconduct.            See    In    re     Disciplinary

Proceedings Against Alfredson, 2017 WI 6, 373 Wis. 2d 79, 890
N.W.2d 13 ("Alfredson I").
       ¶4         In March 2018, the OLR filed the underlying complaint
against          Attorney         Alfredson.          The    OLR    alleged         that    Attorney
Alfredson had engaged in six counts of misconduct based on her
work       for    clients          R.R.    and    M.T.,     as    well    as    her    failure       to

       1   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.


                                                      2
                                                                    No.     2018AP520-D



cooperate with the OLR's investigation into her misconduct.                         The
OLR sought a four-month suspension of Attorney Alfredson's law
license.
      ¶5    In mid-October 2018, following the filing of an answer
and   the   appointment    of   the   referee,       the   parties        executed    a
stipulation in which Attorney Alfredson withdrew her answer and
stipulated to the factual allegations and misconduct charges of
the complaint, as amended in the stipulation.                     Both the OLR and
Attorney     Alfredson    agreed      that     a     90–day        suspension       was
appropriate.       The parties further agreed that the stipulation
was not the result of plea bargaining; that Attorney Alfredson's
entry into the stipulation was knowing and voluntary; and that

she   understood    the   misconduct    allegations          as    amended    by    the
stipulation, her right to contest those allegations, and the
ramifications of her entry into the stipulation.
      ¶6    In late October 2018, the referee filed his report and
recommendation.      The referee accepted the parties' stipulation
and found, based on the stipulation, that the following facts

were true.
      Representation of R.R. (Counts 1-4)
      ¶7    In February 2015, R.R. and his wife divorced.                          R.R.
was represented by counsel other than Attorney Alfredson at the
time.
      ¶8    In approximately September 2015, R.R. hired Attorney
Alfredson to represent him after he had fallen behind on certain
post-divorce    obligations.          R.R.    owed     his        ex-wife    past-due
maintenance and attorney's fees.             In addition, R.R. had not yet
                                       3
                                                                 No.    2018AP520-D



attempted to sell a boat that he and his ex-wife had owned
during their marriage, even though the divorce judgment required
that the boat be placed on the market for sale.
     ¶9      In mid-October 2015, a family court commissioner found
R.R. in contempt and imposed a $2,405.95 purge condition.
     ¶10     On October 20, 2015, R.R. informed Attorney Alfredson
that he had sold the boat for $7,500.                 Attorney Alfredson and
R.R. agreed that the proceeds from the sale would be deposited
into Attorney Alfredson's trust account; that the proceeds would
be   used    to    pay   the   $2,405.95     purge    amount;    and    that    the
remainder of the proceeds ($5,094.05) would be held in trust
pending     documentation      of    receipts   for   storage    and    the    bank

payoff    for     the boat,    for   which R.R.'s     ex-wife    was    partially
responsible.
     ¶11     Attorney     Alfredson     never   deposited       the    boat    sale
proceeds into a trust account.           Rather, on October 22, 2015, she
deposited the check that R.R. had received for the boat in a
non-trust account held by the law firm where she worked at the

time.     Attorney Alfredson subsequently transferred a portion of
the funds to a second non-trust account held by the firm, and
transferred another portion of the funds to a third non-trust
account held by the firm.
     ¶12     In November 2015, Attorney Alfredson provided R.R.'s
ex-wife's lawyer with a check, drawn from one of these non-trust
accounts, for the $2,405.95 purge amount.                 Attorney Alfredson
also used some of R.R.'s funds for her own personal use.


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                                                                               No.     2018AP520-D



       ¶13    In April 2016, R.R. terminated Attorney Alfredson and
retained      a    new    lawyer.         In    a    May    9,    2016    letter       to    R.R.,
Attorney Alfredson agreed to forward the remaining proceeds from
the boat sale to R.R.'s new lawyer.                        Later in May 2016, Attorney
Alfredson provided the OLR with a carbon copy of a purported
check   that       she    allegedly       wrote      to    R.R.'s     new      lawyer       in   the
amount of the boat sale proceeds left after the $2,405.95 purge
payment; i.e., $5,094.05.
       ¶14    In early June 2016, the circuit court ordered that
$5,000 of the proceeds from the boat sale were to be paid to
R.R.'s ex-wife's lawyer within ten business days.                                    In mid-June
2016, R.R.'s ex-wife's lawyer wrote R.R.'s new lawyer, inquiring

about     the     status       of   the    $5,000          payment       and    stating          that
"Attorney Alfredson advises that she sent the monies from her
trust to you."             Attorney Alfredson was copied on this letter.
In response, R.R.'s new lawyer wrote Attorney Alfredson to say
that    she       had    not    received        any       trust    funds       from     Attorney
Alfredson.         Almost four months after receiving this letter, in

October      2016,       Attorney   Alfredson         delivered       a     $5,094.95        check
made payable to R.R.'s ex-wife's lawyer.                             The check was drawn
from a non-trust account.
       ¶15    In April 2016, R.R. filed a grievance with the OLR
against Attorney Alfredson.                    In mid-July 2016, the OLR notified
Attorney Alfredson of the investigation of R.R.'s grievance and
requested certain information and records from her.                                  She did not
respond.


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                                                                           No.    2018AP520-D



     ¶16    In   August        2016,   the    OLR    sent       Attorney        Alfredson   a
second request for information and records via certified mail.
Although Attorney Alfredson signed the return receipt for the
letter, she did not respond.
     ¶17    In   early    September       2016,      the    OLR      personally       served
Attorney Alfredson with a letter in which it threatened to move
for a temporary license suspension for failure to cooperate with
its investigation.         In late September 2016, the OLR received a
letter   response       from    Attorney      Alfredson         to   R.R.'s       grievance.
Attorney Alfredson failed to disclose in her letter that there
was any issue with respect to the delivery of the remaining
proceeds from the boat sale.

     ¶18    In April 2017, Attorney Alfredson wrote a letter to
the OLR stating that in May 2016, she had sent a $5,094.05 check
to R.R.'s new lawyer, but she stopped payment on the check when
that lawyer informed her that she had never received the check.
     ¶19    In    May    2017,     the   OLR        sent    a    letter      to    Attorney
Alfredson    requesting          additional         information        and        documents.

Attorney Alfredson did not respond.
     ¶20    In June 2017, the OLR wrote Attorney Alfredson again,
reminding   her     of    her     duty   to      cooperate.           In    a     July   2017
telephone conversation with OLR staff, Attorney Alfredson stated
that her response was in the mail and that she would fax a copy
of the response to the OLR.                      The OLR received nothing from
Attorney Alfredson.
     ¶21    In   August    2017,       the    OLR    personally        served       Attorney
Alfredson with a letter in which it threatened to move for a
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                                                                       No.     2018AP520-D



temporary license suspension for failure to cooperate with its
investigation.        In late August 2017, the OLR received Attorney
Alfredson's faxed response to the OLR's May 2017 letter.
       Representation of M.T. (Counts 5-6)
       ¶22   In    October     2015,    M.T.     hired      Attorney     Alfredson     to
represent him in a divorce.             In a May 9, 2016 letter to Attorney
Alfredson,        M.T.'s   wife's      lawyer    identified       certain       personal
property     items    that    her   client      wanted      to   retrieve      from    the
marital residence but that M.T. had allegedly prevented her from
retrieving.         Attorney    Alfredson       did   not     directly       communicate
with M.T. regarding this issue.                 M.T.'s wife moved for contempt
based on M.T.'s failure to return some of the items on the

personal property list.
       ¶23   In June 2016, M.T. retained a new lawyer.                         That same
month, M.T.'s new lawyer asked Attorney Alfredson to provide him
with M.T.'s file as soon as possible.                       His office followed-up
that   request      with   numerous      written      requests     and    phone     calls
asking for the file.           Attorney Alfredson did not provide M.T.'s

file   until      September    2016,     over    three      months     after    the    new
lawyer's initial request for the file.
       ¶24   The referee reviewed the complaint and stipulation and
concluded that, in connection with her work for R.R. and M.T.,
Attorney     Alfredson        had   committed         the    following         forms    of
misconduct:




                                           7
                                                                No.    2018AP520-D



        •   Count One:    By failing to hold R.R.'s funds in trust,
            Attorney Alfredson violated SCR 20:1.15(b)(1).2
        •   Count Two:    By failing to promptly deliver funds that
            she collected in connection with her representation of
            R.R.    to R.R.'s    ex-wife's         lawyer, Attorney Alfredson
            violated          former         SCR       20:1.15(d)(1),         and
            SCR 20:1.15(e)(1).3
        •   Count    Three:     By     converting     R.R.'s   funds   that   she
            received in connection with her representation of R.R.




    2   SCR 20:1.15(b)(1) provides:

         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
    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.
    3  By S. Ct. Order 14-07, 2016 WI 21 (issued Apr. 4, 2016,
eff. July 1, 2016) former SCR 20:1.15(d)(1) was renumbered as
SCR 20:1.15(e)(1).    The text of the rule was not changed.
Former SCR 20:1.15(d)(1) and current SCR 20:15(e)(1) provide:

         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.


                                         8
                                                              No.    2018AP520-D



            for her own personal use, Attorney Alfredson violated
            SCR 20:8.4(c).4
        •   Count Four:     By failing to timely provide the OLR with
            a written response to R.R.'s grievance, and by failing
            to timely provide the OLR with a response to the OLR's
            additional request for information, Attorney Alfredson
            violated SCR 22.03(2),5 enforced via SCR 20:8.4(h).6
        •   Count   Five:     By   failing   to    address   with     M.T.   the
            personal   property     issue    set   forth     in     his   wife's




    4 SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    5   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.
    6  SCR 20:8.4(h) provides:   "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)."


                                     9
                                                                  No.       2018AP520-D



              lawyer's    May     9,   2016    letter,       Attorney       Alfredson
              violated SCR 20:1.3.7
          •   Count Six:      By failing to timely deliver M.T.'s case
              file to successor counsel, Attorney Alfredson violated
              SCR 20:1.16(d).8
      ¶25     The   referee     then   considered     appropriate       discipline.
He   adopted,       without      analysis,      the     OLR's    reasoning           and
recommendation set forth in its sanction memorandum.                             In that
memorandum, the OLR discussed certain cases that, in its view,
justified a 90-day suspension period.                  See In re Disciplinary

Proceedings Against Briggs, 2014 WI 119, 358 Wis. 2d 493, 861
N.W.2d 528      (90-day       suspension      for     lawyer    with        no     prior

discipline who committed 12 counts of misconduct); see also In
re   Disciplinary     Proceedings       Against     Woods,     2008    WI    79,     311
Wis. 2d 213, 751 N.W.2d 840 (90-day suspension for lawyer with
an extensive disciplinary history who committed four counts of



      7SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
      8   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 expense 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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misconduct).          The OLR also discussed various aggravating and
mitigating factors.               On the aggravating side of the scale, the
OLR noted that Alfredson has a disciplinary history, converted
client funds for personal use, and engaged in misconduct with a
pattern of neglect, dishonesty, and failure to cooperate.                                   On
the   mitigating       side        of       the    scale,    the     OLR    noted    Attorney
Alfredson's      "lack           of        substantial       legal     experience,"        her
acknowledgement         of        her       misconduct,       and     her    provision      of
"confidential information to OLR regarding family and medical
issues which affected her ability to practice law during the
time period in question."
      ¶26     Ultimately,             the        referee     accepted       the      parties'

stipulated discipline and recommended a 90-day suspension.                                  He
also recommended that Attorney Alfredson be held responsible for
all   the     costs    of    this          disciplinary      proceeding,       which     total
$2,649.59 as of November 15, 2018.
      ¶27     No appeal was filed, so we review this matter pursuant
to SCR 22.17(2).            We will affirm the referee's findings of fact

unless they are clearly erroneous.                      We review conclusions of law
de novo.      See In re Disciplinary Proceedings Against Eisenberg,
2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                              We may impose
whatever      sanction       we       see    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.
      ¶28     There is no showing that any of the referee's findings
of    fact,    based        on     the       parties'       stipulation,      are     clearly
erroneous.      Accordingly, we adopt them.                    We also agree with the
                                                  11
                                                                              No.       2018AP520-D



referee's legal conclusions that Attorney Alfredson violated the
supreme court rules noted above.
       ¶29    The     central          issue    for        this     court     is       whether     a
suspension greater than the 90-day recommended suspension is in
order.       Our concern over the length of suspension is prompted by
our February 2017 decision in Alfredson I, in which we noted

that the 60-day suspension we imposed was "modest" given the
facts at hand, and cautioned that a longer suspension would have
been     in     order       had        Attorney           Alfredson        been        previously
disciplined.          Alfredson         I,     373    Wis. 2d 79,          ¶35.        We    warned
Attorney      Alfredson         "that     the    court       may     impose       progressively
severe       sanctions          when     an      attorney           engages       in     repeated

misconduct,"        and    we     imposed       the       stipulated       60-day      suspension
"with the expectation that Attorney Alfredson will not commit
future misconduct subjecting her to additional discipline."                                      Id.
Attorney Alfredson is now back before us——and, troublingly, the
facts    show       that    she        failed        to    cooperate        with       the    OLR's
investigation regarding her representation of R.R. even after
the February 2017 issuance of Alfredson I.
       ¶30    "This       court     has       long        adhered     to    the     concept       of
progressive discipline in attorney regulatory cases."                                        In re
Disciplinary Proceedings Against Netzer, 2014 WI 7, ¶49, 352
Wis. 2d 310,        841    N.W.2d 820.               The    question        for    us    here     is
whether moving from a 60-day suspension to the recommended 90-
day suspension constitutes a sufficiently serious step in the
progressive discipline process.


                                                12
                                                                          No.     2018AP520-D



       ¶31    On these facts, we conclude the answer is yes——though
it is a close call.              The closeness of the call stems from the
weakness of certain mitigating circumstances identified by the
OLR    in    its    sanction       memorandum——which,            again,      the      referee
endorsed in its entirety without analysis.                       The OLR stated that
Attorney      Alfredson's        "lack    of    substantial        legal        experience"
should count as a mitigating factor.                 But Attorney Alfredson was
admitted to the bar in 2009, and the misconduct in this case
occurred years later, in 2015 through much of 2017.                                 By this
time, Attorney Alfredson was not a brand-new lawyer.                               Moreover,
the   ethical       principles     she    violated     are       not   elusive:          hold
client funds in trust; do not spend them on personal matters;

pay client funds owed to third parties promptly; communicate
with clients diligently; cooperate with the OLR, etc.                              Even the
greenest lawyer is charged with knowledge of these basic rules.
Surely      Attorney     Alfredson,      with     multiple      years     of     experience
under her belt, should have known better.
       ¶32    We    also       cannot    assign     any    weight       to      the    OLR's

statement      in   its    sanction      memorandum       that    Attorney         Alfredson
provided "confidential information" to the OLR regarding "family
and medical issues which affected her ability to practice law
during the time period in question."                  Problematically, there is
no    evidence      in   the    record    regarding       the    nature      of     Attorney
Alfredson's alleged family and medical issues, or their possible
nexus to her misconduct.                The parties' stipulation provides no
details, and the issues went unaddressed by the referee.                               Thus,
nothing stands behind the assertion that Attorney Alfredson's
                                           13
                                                                      No.     2018AP520-D



family and medical issues should partially excuse her misconduct
except the parties' own say-so.                   That is not enough.         See In re

Disciplinary Proceedings Against Davig Huesmann, 2018 WI 114,
¶40,   385     Wis. 2d 49,         ___    N.W.2d ___       (declining    to    consider
lawyer's      personal    and      substance      abuse    problems     as    mitigating
factors absent a "showing in [the] record that those problems
were    the     cause    of        her    professional       misconduct");        In   re
Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243,
562 N.W.2d 137, (1997) ("Absent a causal connection between an
attorney's medical           condition and that            attorney's professional
misconduct, the medical condition may not be considered a factor
mitigating      either       the    seriousness      of    the   misconduct      or    the

severity of discipline to be imposed for it.")
       ¶33    Nevertheless, we conclude that a 90-day suspension of
Attorney Alfredson's law license is sufficient to impress upon
her the seriousness of her professional duties and to deter her
and others from engaging in similar misconduct.                          We note the
presence of certain mitigating factors.                    Attorney Alfredson did,
ultimately,      endeavor          to     rectify    the     consequences       of     her
misconduct.      She also entered into a stipulation that resolves
this     disciplinary              proceeding,       wherein       she        explicitly
acknowledged that her misconduct caused harm and that she was
wrong for failing to cooperate with the OLR's investigation.                            In
addition to these mitigating factors, we note that a roughly
analogous      case,    In    re    Disciplinary      Proceedings       Against      Wood,
2014 WI 116, 358 Wis. 2d 472, 854 N.W.2d 844, provides support
for a 90-day suspension.                 See id. (imposing a 90-day suspension
                                             14
                                                                            No.    2018AP520-D



on a respondent-lawyer who had been suspended the previous year
in his first disciplinary matter, and who stipulated to seven
misconduct counts, including failing to keep a client informed
of   the    case     status,   failing      to     cooperate         with    the    OLR,    and
various      trust       account    violations).           We    impose       this     90-day
suspension with the same caveat that we gave in Alfredson I:                                 we

expect      that      Attorney       Alfredson        will       not        commit     future
misconduct,        and    should    this    expectation         be    disappointed,          our
progressive discipline system will await.
      ¶34    As is our normal practice, we find it appropriate to
impose      the    full     costs    of     this    disciplinary            proceeding       on
Attorney Alfredson.           See SCR 22.24(1m).
      ¶35    Finally, as to restitution, none was sought and none
is ordered.
      ¶36    IT IS ORDERED that the license of Melinda Alfredson is
suspended for a period of 90 days, effective April 9, 2019.
      ¶37    IT IS FURTHER ORDERED that within 60 days of the date
of this order, Melinda Alfredson shall pay to the Office of
Lawyer      Regulation      the     costs    of     this     proceeding,           which    are
$2,649.59 as of November 15, 2018.
      ¶38    IT    IS     FURTHER    ORDERED       that    Melinda      Alfredson          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.
      ¶39    IT      IS    FURTHER    ORDERED        that       compliance         with     all
conditions of this order is required for reinstatement.                                     See
SCR 22.28(2).
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    No.   2018AP520-D




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