                                                         2018 WI 13

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1567-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against George W. Curtis, Jr., Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        George W. Curtis, Jr.,
                                  Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST CURTIS, JR.

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

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                              2018 WI 13
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2015AP1567-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against George W. Curtis, Jr., Attorney at Law:

Office of Lawyer Regulation,                                             FILED
             Complainant,
                                                                    FEB 15, 2018
      v.                                                               Diane M. Fremgen
                                                                       Acting Clerk of
George W. Curtis, Jr.,                                                   Supreme Court


             Respondent.




      ATTORNEY        disciplinary      proceeding.           Attorney's        license

suspended.



      ¶1     PER   CURIAM.     We     review    the     report    of    the    referee,

Richard M. Esenberg, regarding the Office of Lawyer Regulation's

(OLR)    complaint     in    this   matter      against       Attorney      George        W.

Curtis, Jr.        At all times relevant to this matter, Attorney

Curtis     operated    the   Curtis    Law     Office    in    Oshkosh,       Wisconsin

(hereafter, the "firm"), as a sole proprietorship.                        The referee

recommended that Attorney Curtis be suspended for 120 days in
connection with his willful failure to pay his personal income
                                                                         No.    2015AP1567-D



taxes for several years and for various trust account violations

committed at his firm.            The referee recommended the dismissal of

three counts of misconduct:                one related to his trust account

record keeping, another related to his failure to remit employee

and employer contributions to his law firm's 401(k) plan, and

another related to his failure to remit payroll taxes for his

firm's employees.           The referee proposed that the court place

certain conditions on Attorney Curtis' post-suspension practice

of    law,   and    that    the    court      reduce    the       full   costs    of     this

proceeding ($16,886.87 as of October 31, 2017) by one-quarter.

The    OLR   did    not    seek    the     payment      of    restitution        in    these

proceedings, and the referee did not recommend it.

       ¶2    Because       no   appeal     has       been    filed,      we    review     the

referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).

After conducting our independent review of the matter, we adopt

the referee's findings of fact and conclusions of law.                            We agree

with the referee that Attorney Curtis' license to practice law

in Wisconsin should be suspended for a four-month period.                                  We
also   agree    with      the   referee       that    Attorney      Curtis      should     be

required to pay three-quarters of the costs of this proceeding,

which will result in a cost assessment of $12,665.15.                            We impose

certain conditions upon the reinstatement of Attorney Curtis'

license to practice law in Wisconsin.                        Finally, we decline to

order restitution for reasons explained below.

       ¶3    Attorney       Curtis      was       admitted    to     practice      law     in

Wisconsin      in   1962.         His   law       license    is    currently      in     good


                                              2
                                                                      No.     2015AP1567-D



standing.        He   has   not     been       the    subject    of     any     previous

disciplinary proceedings.

    ¶4      On   August     3,    2015,    the       OLR   filed      the     underlying

complaint   against       Attorney       Curtis,      raising      seven      counts    of

misconduct.       Count     1    concerned      his    willful      failure      to    pay

personal income taxes for 2007, 2008, and 2009, culminating in

his federal conviction of three misdemeanor counts of failure to

pay income taxes in violation of 26 U.S.C. § 7203.                              Count 2

concerned his failure to pay to the federal government employee

payroll taxes withheld from his firm's employees' paychecks for

the third and fourth quarters of 2013, and all four quarters of

2014.    Counts       3   through    6    concerned        various     trust     account

problems.     Count 7 concerned the administration of funds that

were to have been paid into his firm's 401(k) plan.

    ¶5      Attorney Curtis answered the complaint and admitted

three counts of misconduct (Counts 3,1 4, and 6), denied three

counts of misconduct (Counts 1, 2, and 5), and pled the Fifth

Amendment in response to Count 7 and its background allegations.
    ¶6      The referee held an evidentiary hearing on December 5

and 9, 2016.     Both parties submitted post-hearing briefs.




    1
       In his answer, Attorney Curtis invoked the Fifth Amendment
in response to Count 3.     In post-hearing briefing before the
referee, Attorney Curtis clarified that he had erroneously
invoked the Fifth Amendment in response to Count 3, and that his
intention was instead to "admit the violation and affirmatively
allege the violation was unintentional."


                                           3
                                                                    No.       2015AP1567-D



       ¶7      On September 26, 2017, the referee submitted a report

containing      his    findings    of   fact,     conclusions       of    law,     and    a

recommendation         for    discipline.        The     findings        of    fact     and

conclusions of law are summarized below.

       Willful Failure to Pay Income Tax (Count 1)

       ¶8      Count 1 concerns Attorney Curtis' willful failure to

pay income taxes——a problem that was long in the making and that

culminated in a conviction, following a federal district court

jury    trial    in    January    2014,    on    three    misdemeanor          counts    of

willfully failing to pay the taxes he owed for 2007, 2008, and

2009, in violation of 26 U.S.C. § 7203.                       See United States v.

Curtis, 1:13-cr-00113-WCG (E.D. Wis.).                     The amount of unpaid

tax, with interest and penalties, was $387,233.                           The district

court sentenced Attorney Curtis to six months in prison and one

year of supervised release, both of which he has now completed.

The    court    also    ordered    Attorney      Curtis    to    pay     the    Internal

Revenue     Service     (IRS)     $5,000   per    month    until       the     total    tax

liability for the three years was paid in full.
       ¶9      Attorney Curtis' tax difficulties began years before

his conviction.          In 1996 and 1997, he filed returns reporting

significant      tax    obligations,       but   he    made    no   payments      toward

those debts.          Over the ensuing years, Attorney Curtis entered

into installment payment plans with the IRS, but he did not

fully comply with them; he made payments for a period of time,

and then stopped.            Attorney Curtis also continued to file yearly

tax returns showing significant tax liabilities that he had paid
nothing toward at the time of filing.                     Eventually the IRS ran
                                           4
                                                                  No.    2015AP1567-D



out   of       patience    and     referred      the    matter     for     criminal

investigation.        His conviction followed, which Attorney Curtis

appealed, unsuccessfully.           See United States v. Curtis, 781 F.3d

904 (7th Cir. 2015).           The Seventh Circuit wrote that there was a

"sea of . . . damning evidence demonstrating Curtis' intent" to

not pay his taxes, such as the facts that:

       . . . during the three charged years, Curtis had
      adjusted gross income of more than $1.4 million but
      paid   none  of   it  toward   his   corresponding   tax
      liabilities of approximately $378,000 for that same
      time period. Instead, he spent more than $1.1 million
      on personal expenses that included $142,916 in life
      insurance   premiums;  $43,266   for   a   new   Lincoln
      Navigator luxury SUV; $17,730 worth of wine; $32,775
      in donations and political contributions; $6,945 on
      jewelry; and $10,891 on his pets.        Presented with
      these expenditures and a list that also included
      gifts, firearms, restaurants, department stores, and
      other purely discretionary spending, any jury would
      conclude that Curtis had the money to pay his taxes
      (at least in part) and simply chose not to.
Id. at 911.

      ¶10      The   referee     concluded    that     Attorney    Curtis'    long-

standing failure to pay his taxes reflected adversely on his

fitness as a lawyer in violation of SCR 20:8.4(b),2 in that it

showed     a   disregard   for     his   legal    obligations      and    reflected

adversely on his legal judgment and expertise.

      Failure to Remit Payroll Taxes (Count 2)



      2
       SCR 20:8.4(b) provides:   "It is professional misconduct
for a lawyer to commit a criminal act that reflects adversely on
the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects.


                                         5
                                                                              No.    2015AP1567-D



       ¶11        Count   2    concerns     the      undisputed        fact    that    Attorney

Curtis'          firm   failed      to   remit    to    the     federal       government      the

payroll taxes for his law firm's employees for the third and

fourth quarters of 2013 and all of 2014.                            The OLR alleged that

this       conduct       was    a   form   of     dishonesty,          fraud,       deceit,    or

misrepresentation in violation of SCR 20:8.4(c).3

       ¶12        The referee recommended the dismissal of this charge,

citing an overall "paucity of evidence."                            On the one hand, the

referee found that Attorney Curtis became aware, at some point,

that his firm had not remitted the payroll taxes that it had

withheld from its employees during part of 2013 and all of 2014.

But    the       referee       credited    Attorney          Curtis'    testimony       at    the

disciplinary            hearing     that   the    firm       fell   behind      on    remitting

payroll taxes because the IRS's garnishment of firm accounts

left       him    unclear      as   to   whether       the    seized     funds       were   being

applied toward payroll taxes.                    In the referee's view, the record

was too unclear to permit him to conclude that Attorney Curtis

engaged in dishonesty, fraud, deceit, or misrepresentation in
violation of SCR 20:8.4(c).                      As such, the referee recommended

the dismissal of Count 2.

       Trust Account Violations (Counts 3-6)

       ¶13        These misconduct charges concern the disarrayed state

of the firm's trust account.                      Since 1999, Attorney Curtis has


       3
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                                 6
                                                                     No.     2015AP1567-D



been the sole partner in the firm; for many years before that,

he practiced in partnership with one or more lawyers.                               Since

1999, Attorney Curtis was the attorney primarily responsible for

supervising and managing the firm's trust account, as well as

for supervising the trust account-related work of the firm's

office manager, bookkeepers, and other staff.

      ¶14   As a firm largely engaged in the representation of

plaintiffs,     the     firm    would     receive       settlement     and     judgment

payments and deposit these funds in a trust account, pending a

determination of how the funds should be disbursed.                              It was

Attorney Curtis' practice (and apparently that of the lawyers

who   oversaw   the     firm's    trust    account       before   Attorney       Curtis

began doing so) to hold in the trust account any potentially

disputed    portions     of    settlement       and   judgment    payments       (e.g.,

funds   that    could    be     subject    to    subrogation      claims)       pending

resolution of the claims or the expiration of any applicable

statute of limitations, which Attorney Curtis understood to span

six years from the firm's receipt of the funds.                   If the claimant
was   not   currently     pursuing      the     claim,    Attorney     Curtis       would

advise his client to simply wait and not "wake up" the claimant

by attempting to resolve the matter; that way, Attorney Curtis

believed, his client might ultimately collect more money than

they would have otherwise received had the claim been resolved.

Because many clients followed his advice, more money was held in

trust   than    would    have    been     the    case    had   these       claims   been

resolved soon after receipt of the funds.                   And because the firm
failed to periodically review the trust account to ensure that
                                           7
                                                                   No.     2015AP1567-D



releasable funds were, in fact, released, the funds languished

in the firm's trust account for many years.

    ¶15     This    practice    led     to    an    impossibly      jumbled      trust

account.     In 2009, while converting the firm from a paper to an

electronic accounting system, firm employees discovered that a

substantial amount of money had been held in trust for longer

than the six-year statute of limitations that Attorney Curtis

believed governed them.          The firm began an effort to identify

and locate clients to whom these funds belonged——a task that

proved difficult and, in some instances, unworkable.                          Some of

the clients had moved.          Others could not be found.               Others had

died, sometimes requiring that an estate be opened or reopened.

There were some funds held in trust for which the client could

not be identified.          As a result, a substantial amount of money

remained unpaid to its owners.           As of April 2014, the firm trust

account held a total of $1,059,218.09.                   Of that amount, at least

$105,235.59 related to cases that had been closed prior to April

2008; some funds had been held since as far back as 1978.                          The
firm has made some progress in disbursing these funds; by April

2015, the firm disbursed $42,865.41 of the $105,235.59 related

to cases that had been closed prior to April 2008.                               As of

January    2015,    there    remained    $23,487.94         held   in    trust    with

respect to which the owners could not be identified.

    ¶16     Based    on      these    facts        and     on   Attorney      Curtis'

admissions    (see    n.1),    the    referee       determined      that     Attorney

Curtis failed to ensure the prompt notice and delivery of funds
to clients and third parties, in violation of SCR 20:1.15(b), in
                                         8
                                                             No.    2015AP1567-D



effect between October 1, 2000 and June 30, 2004, and former SCR

20:1.15(d)(l), effective as of July 1, 2004 (Count 3).4

     ¶17   Based   on   the   above    facts   and   on    Attorney    Curtis'

admissions in his answer, the referee determined that Attorney

Curtis   failed    to   regularly     reconcile   his     trust    account   in



     4
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."      See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

     Former SCR 20:1.15(b), in effect between October 1,
     2000 and June 30, 2004, provided:

          Upon receiving funds or other property in which a
     client or third person has an interest, a lawyer shall
     promptly notify the client or third person in writing.
     Except as stated in this rule or otherwise permitted
     by law or by agreement with the client, a lawyer shall
     promptly deliver to the client or third person any
     funds or other property that the client or third
     person is entitled to receive and, upon request by the
     client or third person, shall render a full accounting
     regarding such property.

     Former SCR 20:1.15(d)(1), in effect between July 1,
     2004 and June 30, 2016, provided:

          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.


                                       9
                                                        No.    2015AP1567-D



violation   of   SCR   20:1.15(f)(1)g   (Count   4),5   and   failed    to

adequately supervise his staff's management of the trust account

in violation of SCR 20:5.3(a) and (b), in effect between October

1, 2000 and December 31, 2009, and SCR 20:5.3(a) and (b), in

effect as of January 1, 2010 (Count 6).6


     5
       Former SCR 20:1.15(f)(1)g, in effect between January
     1, 2010 and June 30, 2016, provided:

          For each trust account, the lawyer shall prepare
     and retain a printed reconciliation report on a
     regular and periodic basis not less frequently than
     every 30 days. Each reconciliation report shall show
     all of the following balances and verify that they are
     identical:

          1. the balance that appears in the transaction
     register as of the reporting date;

          2. the total of all subsidiary ledger balances
     for IOLTA accounts and other pooled trust accounts,
     determined by listing and totaling the balances in the
     individual client ledgers and the ledger for account
     fees and charges, as of the reporting date; and

          3. the adjusted balance, determined by adding
     outstanding deposits and other credits to the balance
     in the financial institution's monthly statement and
     subtracting outstanding checks and other deductions
     from the balance in the monthly statement.
     6
       Former SCR 20:5.3(a) and (b), in effect between
     October 1, 2000 and December 31, 2009, provided that,
     with respect to a nonlawyer employed or retained by or
     associated with a lawyer:

          (a) a partner in a law firm shall make reasonable
     efforts to ensure that the firm has in effect measures
     giving reasonable assurance that the person's conduct
     is compatible with the professional obligations of the
     lawyer;

                                                              (continued)
                                  10
                                                                No.   2015AP1567-D



       ¶18    The referee determined, however, that the OLR had not

proven       that   Attorney    Curtis    failed   to   maintain      and   retain

complete      records   of     trust   account     funds   in     violation     of

SCR 20:1.15(e), in effect between October 1, 2000 and June 30,

2004 and SCR 20:1.15(e)(6), in effect since July 1, 2004 (Count

5).7       According to the referee, the record was unclear as to



            (b) a lawyer having direct supervisory authority
       over the nonlawyer shall make reasonable efforts to
       ensure that the person's conduct is compatible with
       the professional obligations of the lawyer.

       Current SCR 20:5.3(a) and (b) provide that, with
       respect to a nonlawyer employed or retained by or
       associated with a lawyer:

            (a) a partner, and a lawyer who individually or
       together with other lawyers possesses comparable
       managerial authority in a law firm shall make
       reasonable efforts to ensure that the firm has in
       effect measures giving reasonable assurance that the
       person's conduct is compatible with the professional
       obligations of the lawyer;

            (b) a lawyer having direct supervisory authority
       over the nonlawyer shall make reasonable efforts to
       ensure that the person's conduct is compatible with
       the professional obligations of the lawyer.
       7
       Former SCR 20:1.15(e), in effect between October 1, 2000
and June 30, 2004, provided: "Complete records of trust account
funds and other trust property shall be kept by the lawyer and
shall be preserved for a period of at least six years after
termination of the representation."

     Former SCR 20:1.15(e)(6), in effect between July 1, 2004
and June 30, 2016, provided: "A lawyer shall maintain complete
records of trust account funds and other trust property and
shall preserve those records for at least 6 years after the date
of termination of the representation."


                                         11
                                                                  No.     2015AP1567-D



whether Attorney Curtis' trust account problems were the result

of a failure to keep the records required by SCR 20:1.15, or a

failure to properly reconcile the records he kept.                      The referee

therefore     concluded     that   the    OLR   had     failed    to    prove     trust

account misconduct independent of that charged in Counts 3, 4,

and 6.

      401(k) Issues (Count 7)

      ¶19    This misconduct charge concerned the firm's payment

(or   non-payment)     of     funds      into    the     401(k)    plan     that    it

maintained for its employees.             Both firm employees and the firm

itself      would   make    contributions        to     the    plan,      which    was

administered by a third party.                Attorney Curtis determined the

amount of the firm's contribution to the plan.

      ¶20    The OLR claimed that the firm did not remit to the

401(k) plan the amounts that had been withheld from employee

paychecks for that purpose, nor did the firm make its promised

contributions to the plan.            The OLR claimed that these actions

displayed     dishonesty,     fraud,     deceit,       or   misrepresentation        in
violation of SCR 20:8.4(c).            In his answer to the OLR complaint

and in his hearing testimony, Attorney Curtis invoked the Fifth

Amendment in response to allegations and questions about the

401(k) plan.

      ¶21    The    referee    recommended         the      dismissal      of      this

misconduct charge, again citing a paucity of evidence in the

record.     The referee maintained that the record did not show why

amounts withheld from employee checks were not promptly paid to
the 401(k) plan; whether Attorney Curtis was involved in the
                                         12
                                                                        No.     2015AP1567-D



nonpayment      of     employee       funds          to     the   401(k)      plan;     what

representations Attorney Curtis made to employees regarding the

401(k) plan; how any such representations related to the status

of the 401(k) plan at the time they were made; and whether the

firm was current on its own contributions to the plan.                            The only

established facts regarding the 401(k) plan, according to the

referee, were that:            (1) while delayed, all amounts that the

firm withheld from employee paychecks were eventually paid into

the   401(k)    plan;       and     (2)    Attorney          Curtis    pled     the    Fifth

Amendment in response to allegations and questions about the

401(k) plan.         The referee reasoned that neither of these facts,

viewed together or in isolation, constituted sufficient proof of

dishonesty,     fraud,      deceit,       or    misrepresentation          to   warrant     a

determination        of   an   SCR    20:8.4(c)            violation.         Although    an

attorney's invocation of the Fifth Amendment in a disciplinary

proceeding permits an inference to be drawn on issues involving

grounds for discipline, State v. Postorino, 53 Wis. 2d 412, 416–

17, 193 N.W.2d 1 (1972), the referee wrote that the OLR was
"asking the possibility of a negative inference do too much

work" in this case.

      ¶22   As for the amount of discipline required to address

the   above-described          misconduct,            the    referee     noted        various

mitigating and aggravating factors.                        On the mitigating side of

the   ledger,    the      referee    noted          that    Attorney    Curtis    did     not

attempt to conceal his tax obligations; rather, he filed yearly

tax returns informing the government what he owed, though he did
not pay the amount owed.             Attorney Curtis served time in prison,
                                               13
                                                                          No.        2015AP1567-D



without practicing law, for his failure to pay income taxes.

The referee also noted that the trust account violations did not

benefit      Attorney    Curtis,      were        not    intentional,       and        did    not

involve misrepresentation or dishonesty.                          Attorney Curtis also

tried to locate the clients to whom money was owed.                             The referee

further noted that Attorney Curtis had practiced law for 55

years without prior discipline, and is now 81 years old.

       ¶23    On the aggravating side of the ledger, the referee

noted that the length of time during which Attorney Curtis was

delinquent on his taxes and the size of the delinquency itself

were quite considerable.                  Likewise, the dollar amount of the

undisbursed trust account funds and the length of time during

which     those     funds       languished        in      the     trust     account          were

significant.

       ¶24    Given   all     of    the    above        considerations,         the     referee

proposed that a 120-day license suspension was in order.                                      The

referee      also   recommended        that,       as     a     condition       of     Attorney

Curtis'      practice    of     law    following          his     suspension,          he    must
disburse the funds held in trust to the proper recipients, and

he must certify to the OLR that he has a system in place that:

(1) provides periodic reports to clients regarding amounts held

in trust; (2) flags amounts that have remained in trust for more

than a specified period since receipt of the funds and since the

last review by an attorney; and (3) requires an attorney in the

firm    to   review     these      funds    on    an     annual    basis    to        determine

whether they should be disbursed.


                                             14
                                                                              No.     2015AP1567-D



       ¶25       Because no appeal has been filed from the referee's

report      and     recommendation,         we    review         the   matter       pursuant       to

SCR 22.17(2).             When        reviewing         a        referee's          report        and

recommendation, we affirm the referee's findings of fact unless

they       are    found    to    be    clearly        erroneous,       but    we     review       the

referee's         conclusions         of   law    on        a    de    novo   basis.         In    re

Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305

Wis. 2d 71, 740 N.W.2d 125.                 We determine the appropriate level

of discipline to impose given the particular facts of each case,

independent of the referee's recommendation, but benefiting from

it.    In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶26       This is a difficult case.                       The referee's task was

undoubtedly complicated by the polar opposite positions taken by

the parties before him:                    the OLR demanded the revocation of

Attorney Curtis' license, and Attorney Curtis insisted that no

discipline was warranted whatsoever.                            In a lengthy report, the

referee          resisted       any    temptation           to    make    a     middle-ground
recommendation, instead proposing a 120-day suspension——a result

from which neither party appealed, leaving us to decide this

matter without the benefit of automatically ordered briefing.8




       8
       We could have              ordered the parties to file briefs with us
on our own motion.               See SCR 22.17(2). But we have not done so,
as the issues are                not so insurmountable as to justify the
further expense and              delay of additional briefing in this long-
pending matter.


                                                 15
                                                                           No.     2015AP1567-D



       ¶27     Adding another layer of complexity, Attorney Curtis

declined, on Fifth Amendment grounds, to answer any allegations

or questions regarding his firm's 401(k) plan (Count 7), but

also introduced evidence at the disciplinary hearing to suggest

that    the    plan's     finances      were      in    order.          This       litigation

strategy       was   entirely     permissible:                 our     rules        permit     a

respondent-lawyer         to   invoke    his      or     her     right       against      self-

incrimination, SCR 22.03(7), and this right is unaffected by

assertions of innocence.             See Ohio v. Reiner, 532 U.S. 17, 21

(2001).       It was then incumbent on the OLR to make a strong case

against Attorney Curtis on the subject of the 401(k) plan from

independent      sources——a     task     that,         the   record        shows,       the   OLR

might have done better.              For example, the record is largely

devoid    of    records    relating     to     the      401(k)       plan,       such    as   the

plan's accounting and tax records, or its standard quarterly and

annual reports, or any regular correspondence between the firm

and the plan's third-party administrator.                        All said, this court

is left with a challenging task in determining, on the facts,
the magnitude of Attorney Curtis' misconduct and the amount of

discipline necessary to prevent its recurrence, either by him or

other lawyers.

       ¶28     We start by addressing the easiest issue to dispose

of:      whether Attorney Curtis' willful failure to pay income

taxes    reflected      adversely       on    his      fitness        as     a    lawyer,      in

violation of SCR 20:8.4(b) (Count 1).                        The answer is a clear

yes.


                                             16
                                                                         No.        2015AP1567-D



       ¶29        Attorney Curtis' position before the referee seemed to

be that his tax woes didn't amount to professional misconduct

given that he filed accurate tax returns——he simply didn't pay

the taxes owed, which was a purely personal failing that didn't

abuse       his    professional         status       as   a   lawyer,   or     violate      any

professional norms, or harm any clients, or (he claimed) tarnish

his reputation in the legal community.                        We disagree, as did the

referee.           Given       his    federal    conviction,       upheld      on      appeal,

Attorney           Curtis       cannot       meaningfully          dispute          that     he

intentionally failed to pay any of the taxes he owed for the

years 2007 through 2009 despite having adjusted gross income of

more than $1.4 million over those years, and despite having

spent significant sums on extravagances——$17,730 on wine, for

example.           See Curtis, 781 F.3d at 911.                    As Attorney Curtis

himself          told    the         district    court        during     his        sentencing

allocution,9 "my whole system was wrong.                       . . . I had the concept

that it was my money and it isn't my money.                              Unfortunately I

never really thought about it."                      This sort of blinkered thinking
raises a red flag as to Attorney Curtis' fitness as lawyer——one

that       he,    in    this    proceeding,      seems        unable    or   unwilling       to

acknowledge:             during       his   disciplinary        hearing,       he     blithely

compared the jury's verdict that he willfully failed to pay his

taxes to "historical verdicts that the world was flat.                                   I got

       9
       The transcript of Attorney Curtis' sentencing hearing from
his federal tax case is included in the record of this
disciplinary matter, along with various other documents from
that case.


                                                17
                                                          No.     2015AP1567-D



beat."    On these facts, we have no difficulty concluding that

Attorney Curtis' criminal act reflects adversely on his fitness

as a lawyer.

    ¶30   We   move    next   to   Count   2,   which   alleged    that,   by

failing to remit to the federal government the payroll taxes10

that had been withheld from employee paychecks during the third

and fourth quarters of 2013 and all of 2014, Attorney Curtis

engaged   in   a      form    of   dishonesty,     fraud,       deceit,    or

misrepresentation in violation of SCR 20:8.4(c).                As described

above, the referee recommended the dismissal of this charge,

citing ambiguity in the record as to whether Attorney Curtis

understood that the firm's payroll taxes were not being paid.

On the one hand, the referee found that Attorney Curtis became


    10
       On the subject of payroll taxes, the Seventh Circuit has
explained:

    The Internal Revenue Code requires employers to
    withhold income and Federal Insurance Contribution Act
    taxes from their employees' wages.         The amounts
    collected from the employees' wages are considered to
    be held by the employer in trust for the United
    States, and must be paid over quarterly.     See Slodov
    v. United States, 436 U.S. 238, 244, 98 S.Ct. 1778,
    1783–84, 56 L.Ed.2d 251 (1978) (citing 26 U.S.C. §
    7501(a)). While it is not always required that these
    funds be segregated by the employer prior to being
    paid over to the IRS, the law is clear that the funds
    may not be used by the employer for any other
    obligations, including but not limited to operating
    expenses.   Id.; see also Purdy Co. of Illinois v.
    United States, 814 F.2d 1183, 1186 (7th Cir. 1987).

    United States v. Kim, 111 F.3d 1351, 1356-57 (7th Cir.
    1997).


                                    18
                                                                       No.     2015AP1567-D



aware, at some point, that his firm had not remitted the payroll

taxes that it had withheld from its employees during part of

2013 and all of 2014.            But the referee credited testimony at the

disciplinary      hearing       that    the    firm   fell    behind     on     remitting

payroll taxes because the IRS had garnished firm accounts, which

in turn left Attorney Curtis unclear as to whether the seized

funds were being applied toward payroll taxes.                      These facts, the

referee wrote, preclude a determination that Attorney Curtis'

conduct rose to the level of dishonesty, fraud, or deceit that

constituted an SCR 20:8.4(c) violation.                       As such, the referee

recommended the dismissal of Count 2.

      ¶31   We    accept        the    referee's      recommendation          to   dismiss

Count 2.        Neither party has challenged any of the referee's

findings of fact or legal conclusions underlying the referee's

recommended dismissal of this count.                        Our own review of the

matter leads us to accept the referee's findings of fact——in

particular his credibility determination that Attorney Curtis

was unclear as to whether funds seized by the IRS were being
applied     toward       payroll       taxes.         See     In    re       Disciplinary

Proceedings Against Nunnery, 2009 WI 89, ¶40, 320 Wis. 2d 422,

769   N.W.2d 858        ("The    referee      is   best     situated     to    judge   the

credibility of witnesses.")                 We also note, as did the referee,

the absence from the record of certain documentary evidence that

would   have     been    helpful       in   analyzing     this     misconduct      count;

e.g.,     the    firm's     payroll         tax    returns,      payroll      accounting

records, employee payroll stubs, etc.                       Based on the referee's
unchallenged factual findings of fact and on the state of the
                                              19
                                                                No.    2015AP1567-D



record, we agree         with the referee's conclusion that               the OLR

failed to establish that Attorney Curtis engaged in dishonesty,

fraud,    deceit,   or    misrepresentation        sufficient    to    warrant     a

misconduct determination on Count 2.

    ¶32     We move next to Counts 3 through 6, which concern

trust account problems.           Attorney Curtis admitted in his answer

that he failed to regularly reconcile his trust account (Count

4), and he failed to adequately supervise his staff's management

of the trust account (Count 6).               Attorney Curtis admitted in his

post-hearing briefing that he failed to ensure the prompt notice

and delivery of funds to clients and third parties (Count 3).

Given Attorney Curtis' misguided practice of trying to wait-out

subrogated claims by letting subrogated funds lay dormant——and

untracked——in his trust account, we have no difficulty accepting

his admissions on these counts.

    ¶33     We   also    agree    with   the    referee's    recommendation        to

dismiss Count 5, which alleged that Attorney Curtis failed to

maintain and retain complete records of trust account funds.
According to the referee, the record is unclear as to whether

Attorney Curtis' trust account problems were the result of a

failure    to    keep   the   records    required      by   SCR 20:1.15,      or   a

failure to properly reconcile the records he kept.                    The referee

therefore   concluded      that    the   OLR     had   failed   to    prove   trust

account misconduct independent of that charged in Counts 3, 4,

and 6.    Neither party has appealed from this determination.                      We

conclude that the referee's findings of fact are not clearly
erroneous, and thus we uphold the referee's conclusion of law
                                         20
                                                                No.     2015AP1567-D



that Attorney Curtis' conduct did not violate former and current

SCR 20:1.15(e)(6).

    ¶34    We move next to Count 7, which alleged that Attorney

Curtis     engaged       in    dishonesty,            fraud,      deceit,          or

misrepresentation in violation of SCR 20:8.4(c) by virtue of his

failure to deposit in the firm's 401(k) plan the amount of funds

that his firm withheld from employee paychecks and the amount of

funds that his firm had committed to pay into the fund.                            As

mentioned above, Attorney Curtis pled the Fifth Amendment with

respect   to   any   allegations   regarding          this    count   during      the

discovery, pleadings, and disciplinary hearing stages of this

matter.      We have previously held that although a respondent-

lawyer's invocation of the Fifth Amendment "is not in itself a

ground for disbarment," we may draw a negative inference from

that invocation.      Postorino, 53 Wis. 2d at 417.                   The referee

concluded that this negative inference constituted the entirety

of the OLR's case in support of Count 7——not enough to support a

misconduct     charge,   and   thus        the   referee       recommended        its
dismissal.

    ¶35    The   referee's     discussion        of    this     issue     lacks     a

recommendation on whether Attorney Curtis properly invoked the

Fifth Amendment.      Fifth Amendment protection "must be confined

to instances where the witness has reasonable cause to apprehend

danger from a direct answer."              Hoffman v. United States, 341

U.S. 479, 486–87 (1951).        "The witness is not exonerated from

answering merely because he declares that in so doing he would
incriminate himself——his say-so does not of itself establish the
                                      21
                                                                                   No.     2015AP1567-D



hazard of incrimination.                   It is for the court to say whether his

silence       is   justified,          and    to     require         him    to     answer        if   'it

clearly       appears      to    the       court        that    he    is     mistaken.'"              Id.

(citations         omitted).           Thus,       the       "trial        court     has     a     clear

responsibility to make a full record that the witness' fear of

incrimination         is        valid,        real        and        appreciable,           and       not

speculative or merely an imaginary possibility of incriminatory

danger."           State        v.     Harris,          92     Wis. 2d 836,              844–45,      285

N.W.2d 917 (Ct. App. 1979) (footnotes omitted).

      ¶36      The referee was to have made such "a full record"

here.        See SCR 22.16(1) ("The referee has the powers of a judge

trying a civil action and shall conduct the hearing as the trial

of a civil action to the court.")                         The referee did not do so; it

appears that the parties and the referee alike simply assumed

that Attorney Curtis' silence regarding the 401(k) funds was

justified.          Thus,       at    no     point      in     the    record       before        us   did

Attorney        Curtis      articulate              a     reason        why        responding          to

allegations or questions regarding the 401(k) plan could subject
him     to     criminal         liability,          nor        did    the     referee         make      a

determination of the proper scope and legitimacy of his Fifth

Amendment claim.            Such an unchecked use of the Fifth Amendment

rests uneasily alongside our method of maintaining the integrity

of the bar by requiring attorneys to fully cooperate with OLR

investigations.                      See      SCR         20:8.4(h),             SCR        21.15(4),

SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), and SCR 22.04(1).

      ¶37      Nevertheless, it takes little imagination to see the
"real and appreciable" fear that presumably motivated Attorney
                                                   22
                                                                            No.    2015AP1567-D



Curtis' invocation of the Fifth Amendment.                       See, e.g., 18 U.S.C.

§ 664    (criminalizing             theft    or   embezzlement        from        an    employee

benefit plan).            At this point, requiring Attorney Curtis to

trace      the    path    of     his    employees'       401(k)       withholdings             from

paycheck-to-plan might improperly compel him "to surrender the

very protection which the privilege is designed to guarantee."

Hoffman,     341       U.S.    at    486.      Thus,    we    conclude       that       Attorney

Curtis properly asserted the Fifth Amendment privilege to avoid

answering allegations and questions about his firm's payment of

401(k) funds.

       ¶38       The   referee's       discussion       of     the     401(k)          issue     is

lengthy and appropriately critical of the ambiguous nature of

much of the testimony and exhibits received on the issue.                                   Based

on   the     evidence         submitted,      the   referee      found       that,       for    an

unknown period of time, an unknown amount of employees' 401(k)

withholdings were delinquent from the firm's 401(k) plan, but

the firm cured this delinquency by no later than August 2015.

Citing a shortage of evidence, the referee wrote that he was
unable to make findings as to why employees' 401(k) withholdings

were     delinquent           from     the     firm's        401(k)     plan,          or      what

representations Attorney Curtis made to employees related to the

plan, or whether Attorney Curtis was even involved with the

401(k)     withholdings.             The     referee    opined       that    the       delay     in

remitting        employees'         401(k)    withholdings      to    the     401(k)        plan,

along with the adverse inference drawn from Attorney Curtis'

invocation of his Fifth Amendment privilege, were not enough to
demonstrate an SCR 20:8.4(c) violation; additional evidence of
                                               23
                                                                   No.     2015AP1567-D



"the circumstances of [the funds'] delay" was necessary, the

referee wrote.

    ¶39      We    agree.      Given    the     OLR's    failure   to     submit   all

relevant information about the delinquent 401(k) contributions

(answering the essential inquiries of who, what, where, when,

why, and how), we cannot conclude that Attorney Curtis' actions

rose to the level to the level of dishonesty, fraud, deceit, or

misrepresentation that constituted a violation of SCR 20:8.4(c).

We agree with the referee's observation that the OLR was asking

the adverse inference drawn from Attorney Curtis' assertion of

his Fifth Amendment privileges to do "too much work."

    ¶40      We     turn    next   to     the    issue     of   the      appropriate

discipline for Attorney Curtis.                The referee recommended a 120-

day suspension of Attorney Curtis' law license, along with a

variety of trust account related reinstatement conditions.                          We

agree that        a four-month suspension is sufficient, as it is well

within the wide range of discipline this court has imposed for

arguably     similar        misconduct.          See       In   re       Disciplinary
Proceedings Against Washington, 2007 WI 65, 301 Wis. 2d 47, 732

N.W.2d 24 (18-month suspension for conduct resulting in federal

conviction for one count of tax evasion); In re Disciplinary

Proceedings Against McKinley, 2014 WI 48, 354 Wis. 2d 717, 848

N.W.2d 295 (60–day suspension for conduct resulting in two state

misdemeanor convictions for filing a false tax return); In re

Disciplinary       Proceedings     Against       Usow,    214   Wis. 2d 596,       571

N.W.2d 162    (1997)       (six-month     suspension      for   misrepresentation
and trust account violations that were found to be committed
                                          24
                                                                             No.     2015AP1567-D



without intent and due to a failure to properly supervise office

staff).

       ¶41    We    turn      next     to          the        various        conditions       of

reinstatement recommended by the referee.                          We agree that certain

conditions are appropriate to foster Attorney Curtis' compliance

with trust account requirements, though we do not impose the

exact conditions suggested by the referee.                                 Rather, we simply

direct Attorney Curtis, following reinstatement, to submit to

OLR trust account monitoring for a period of three years, or

until such time as this court enters an order ending monitoring.

       ¶42    We turn next to the issue of costs.                            Citing his view

that the OLR failed to prove the misconduct alleged in three of

the   seven    alleged      counts    (Counts        2,       5,     and    7),    the   referee

recommended        that    Attorney    Curtis            be    ordered       to    pay    three-

quarters of the cost of this proceeding, which will result in

Attorney      Curtis      being   required         to     pay      costs     of    $12,665.15.

Neither       Attorney       Curtis      nor         the        OLR        challenges       this

recommendation.           We agree with the referee and the parties that
a     one-quarter         reduction      in        costs        is     warranted.             Our

determination is not the result of the application of a precise

mathematical formula, but is based on our thorough consideration

of the record, the manner in which this case developed, and the

factors set forth in SCR 22.24(1m).

       ¶43    Finally, we turn to the issue of restitution.                              The OLR

has not sought restitution, citing two reasons:                               (1) as part of

his    criminal     judgment,      the    district             court       ordered       Attorney
Curtis to make $5,000 monthly payments until his overdue income
                                              25
                                                                    No.    2015AP1567-D



taxes are fully paid, making a restitution award related to

Count     1    unnecessary;        and     (2)    the     remaining       counts     not

recommended for dismissal by the referee concern trust account

problems of such age and complexity that there is no reasonably

ascertainable amount of restitution.

      ¶44     We agree with the OLR's reasoning.                   As for Attorney

Curtis' back taxes, there is no need for this court to order

restitution that would duplicate that already ordered in the

federal court system.              As for Attorney Curtis' trust account

violations, we note that, according to the record, thousands of

dollars remain in the firm's trust account with respect to which

the     owners      have   not     been    identified,      despite       the    firm's

substantial         efforts   to   do     so.     Given    the     OLR's    plausible

inability to determine whether any particular client or third

party is owed any particular amount of money by Attorney Curtis,

we will accede to the OLR's request not to award restitution in

this matter.         However, as both part of Attorney Curtis' sanction

and as a condition of reinstatement, we will require him to
disburse      all    funds    in   his    trust   account     to    their       rightful

owners, and if the rightful owners cannot be located, he must

transfer the funds to the state treasurer's office as unclaimed

or unidentifiable property.

      ¶45     IT IS ORDERED that the license of George W. Curtis,

Jr. to practice law in Wisconsin is suspended for a period of

four months, effective March 29, 2018.

      ¶46     IT IS FURTHER ORDERED that George W. Curtis, Jr. shall
distribute all funds in his trust account to their rightful
                                           26
                                                                No.   2015AP1567-D



owners.        If the rightful owners cannot be located, George W.

Curtis, Jr. shall transfer those funds to the state treasurer's

office    as    unclaimed     or    unidentifiable      property.     George    W.

Curtis, Jr.         shall provide documentation to the OLR that all

funds in his trust account have been so distributed.

    ¶47        IT IS FURTHER ORDERED that, upon reinstatement of his

license to practice law, George W. Curtis, Jr.'s trust account

shall     be    subject     to     monitoring   by     the   Office   of   Lawyer

Regulation for three years or until further order of this court.

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

of this order, George W. Curtis, Jr. shall pay to the Office of

Lawyer Regulation costs in the amount of $12,665.15.

    ¶49        IT IS FURTHER ORDERED that George W. Curtis, Jr. shall

comply with the provisions of SCR 22.26 concerning the duties of

an attorney whose license to practice law has been suspended.

    ¶50        IT   IS    FURTHER    ORDERED    that     compliance   with     all

conditions of this order is required for reinstatement.                        See

SCR 22.28(2).




                                         27
    No.   2015AP1567-D




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