                                                         2017 WI 41

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP380-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Alan R. Stewart, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Alan R. Stewart,
                                  Respondent.
                            DISCIPLINARY PROCEEDINGS AGAINST STEWART

OPINION FILED:          April 26, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                        2017 WI 41
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2016AP380-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Alan R. Stewart, Attorney at Law:


Office of Lawyer Regulation,                                         FILED
            Complainant,                                        APR 26, 2017
      v.                                                           Diane M. Fremgen
                                                                Clerk of Supreme Court
Alan R. Stewart,

            Respondent.




      ATTORNEY     disciplinary    proceeding.            Attorney's        license

suspended.


      ¶1    PER CURIAM.     We review the report and recommendation

of Referee William Eich approving a stipulation filed by the

Office of Lawyer Regulation (OLR) and Attorney Alan R. Stewart.

Attorney    Stewart   stipulated   to   the       facts    underlying       the     ll

counts of misconduct alleged in the OLR's complaint and joined

the   OLR   in   jointly   recommending   a       nine-month      suspension        of

Attorney Stewart's license to practice law in Wisconsin.                          The
referee agreed that a nine-month suspension was appropriate.
                                                                           No.       2016AP380-D



      ¶2    Upon     careful    review       of    this     matter,        we       uphold   the

referee's findings of fact and conclusions of law and agree that

a nine-month suspension is an appropriate sanction for Attorney

Stewart's misconduct.          We also find it appropriate to impose the

full costs of this proceeding, which are $645.46 as of February

13, 2017, on Attorney Stewart.                   We further agree that Attorney

Stewart should reimburse the Wisconsin Lawyers' Fund for Client

Protection (the Fund) in the amount of $4,400 for funds it paid

to one client, and he should be required to pay restitution to

F.W. in the amount of $8,000.

      ¶3    Attorney       Stewart     was       admitted        to   practice         law    in

Wisconsin     in     1992.      His     current         address       is    in       Appleton,

Wisconsin.       His law license has been suspended since February

2015 for failure to cooperate in two OLR investigations.                                     His

Wisconsin license is also suspended for failure to comply with

continuing legal education requirements, failure to pay State

Bar   dues,        and    failure      to        file    required          trust       account

certifications.           On   March    19,        2001,    Attorney            Stewart      was
initially registered as a patent attorney with the United States

Patent and Trademark Office (USPTO).                       Attorney Stewart is not

currently registered as a patent attorney with the USPTO.                                 As of

July 16, 2015, he is registered only as a patent agent with the

USPTO.

      ¶4    On     February    24,     2016,       the     OLR    filed         a    complaint

against Attorney Stewart alleging 11 counts of misconduct.                                   The

first six counts arose out of his representation of A.H. and
C.H. (the Hs).           The Hs contacted Attorney Stewart in November
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2013 to discuss the possibility of hiring him to represent them

in connection with patenting an invention.               In early January of

2014, the Hs hired Attorney Stewart to draft and file a non-

provisional patent application.               They paid Attorney Stewart a

$4,400 advanced fee to represent them in the matter.

      ¶5     Attorney    Stewart    never      drafted   the    non-provisional

patent application, and he failed to perform any meaningful work

in the matter.       Attorney Stewart failed to respond to several

telephone calls and emails from the Hs requesting information,

and he did not keep the Hs reasonably informed about the status

of their matter.        Attorney Stewart did not refund to the Hs the

$4,400 advanced fee in spite of their multiple requests for a

refund.      Attorney    Stewart     has     not   returned    the   Hs'   product

sample and papers even after they requested that he do so.                      The

Hs   filed   an   application      for   reimbursement     in    the   amount    of

$4,400 with the Fund, and in December 2014, the Fund approved

payment to the Hs in that amount.

      ¶6     The Hs filed a grievance against Attorney Stewart in
May 2014.     The OLR provided Attorney Stewart with written notice

of its formal investigation of the grievance and of his duty to

cooperate with the investigation of the grievance in September

2014.      Attorney Stewart was informed that his written response

to the grievance was to be submitted on or before October 6,

2014.      Attorney Stewart did not respond.              He also failed to

respond to a follow-up letter sent on October 13, 2014 that was

sent by both certified and first class mail, nor did he respond
to a November 19, 2014 letter that was personally served upon
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him.       In December 2014, the OLR filed with this court a notice

of motion and motion requesting an order to show cause as to why

Attorney Stewart's license should not be suspended for failing

to cooperate in two OLR investigations.                 This court issued an

order requiring Attorney Stewart to show cause in writing why

the    OLR's    motion   should    not   be   granted   and   his     license    to

practice law in Wisconsin should not be temporarily suspended.

Attorney Stewart failed to respond to this court's order.                       On

February      10,   2015,   this   court     granted   the   OLR's    motion    and

temporarily suspended Attorney Stewart's Wisconsin law license.

His license remains temporarily suspended.

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

misconduct with respect to his representation of the Hs:

       Count One:   By failing to complete and file the non-
       provisional patent application, and by otherwise
       failing to act in furtherance of the Hs' interests,
       Attorney Stewart violated SCR 20:1.3.1

       Count Two: By failing to keep the Hs reasonably
       informed regarding the status of the matter, and by
       failing to respond to the Hs' several telephone calls
       and emails requesting information, Attorney Stewart
       violated SCR 20:1.4(a)(3) and (4).2



       1
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
       2
       SCR 20:1.4(a) provides 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 . . . ."




                                         4
                                                  No.    2016AP380-D


    Count Three:    Having received a $4,400 advanced fee
    from the Hs to complete and file the non-provisional
    patent application, and thereafter by failing to do
    so, Attorney Stewart violated SCR 20:1.5(a).3

    Count Four:   Having received an advanced fee payment
    in contemplation of completing and filing the non-
    provisional patent application, and thereafter failing
    to do so, rendering the advanced fee unearned, by
    failing to refund the advanced fee and return the
    product sample and papers to the Hs, Attorney Stewart
    violated SCR 20:1.16(d).4

    Count Five: By misrepresenting to the Hs that he had
    completed the non-provisional patent application and
    sent it to them via email for their review, Attorney
    Stewart violated SCR 20:8.4(c).5

    Count Six: By failing to provide the OLR with a
    written response to the Hs' grievance, Attorney
    Stewart violated SCR 22.03(2)6 and (6),7 enforced by
    SCR 20:8.4(h).8


    3
       SCR 20:1.5(a) provides:     "A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses."
    4
        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.
    5
       SCR 20:8.4(c) provides:    "It is professional misconduct
for a lawyer to: . . . engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."
    6
        SCR 22.03(2) provides:

                                                        (continued)
                                   5
                                                                            No.   2016AP380-D



       ¶8        The    remaining        counts       of    misconduct     alleged    in   the

OLR's complaint arose out of Attorney Stewart's representation

of F.W., who hired Attorney Stewart in May of 2014 to draft and

file       a    non-provisional      patent       application        for    her   mechanical

invention         and    to   represent      her       in    the   intellectual      property

matter.          Attorney Stewart and F.W. had a written fee agreement

which required F.W. to pay Attorney Stewart an $8,000 advanced

fee,       to    be    paid   in   two    installments.            F.W.    made   the   first

advanced fee payment in the amount of $4,000 on or about May 1,




       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
       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.
       7
       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."
       8
       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(6), or SCR
22.04(1)."


                                                  6
                                                                        No.    2016AP380-D



2014, and she made the second fee advanced fee payment in the

amount of $4,000 on or about June 24, 2014.

    ¶9      Attorney      Stewart    never      drafted          the    non-provisional

patent application and failed to perform any meaningful work in

F.W.'s intellectual property matter.              Attorney Stewart failed to

respond     to   F.W.'s     telephone         calls        and    emails       requesting

information, and he did not otherwise keep F.W. informed about

the status of her matter.            Attorney Stewart did not refund to

F.W. the $8,000 advanced fee, and he failed to respond to her

request for a refund.

    ¶10     F.W. filed a grievance with the OLR in August 2014.

The OLR provided Attorney Stewart with written notice of its

formal    investigation      of     the   F.W.    matter          and    his    duty   to

cooperate     with   the     investigation            on     September        11,   2014.

Attorney Stewart failed to respond to the OLR's request for a

written response.      He also failed to respond to an October 13,

2014 follow-up letter sent by both certified and first class

mail, nor did he respond to a letter that was personally served
on him on November 19, 2014.                  The OLR subsequently filed a

notice of motion and motion requesting an order to show cause as

to why Attorney Stewart's license should not be suspended for

failing to cooperate in the F.W. and the Hs investigations.                            As

noted above, on February 10, 2015, this court issued an order

granting the OLR's motion and temporarily suspending Attorney

Stewart's law license.




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                                                                  No.       2016AP380-D



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

misconduct with respect to Attorney Stewart's representation of

F.W.:

      Count Seven:    By failing to draft and file the non-
      provisional patent application, and by otherwise
      failing to act in furtherance of F.W.'s interests,
      Attorney Stewart violated SCR 20:1.3.

      Count Eight:      By failing to keep F.W. reasonably
      informed regarding the status of the matter, and by
      failing to respond to F.W.'s several telephone calls
      and emails requesting information, Attorney Stewart
      violated SCR 20:1.4(a)(3) and (4).

      Count Nine:    Having received an $8,000 advanced fee
      from F.W. to draft and file the non-provisional patent
      application, and thereafter by failing to do so,
      Attorney Stewart violated SCR 20:1.5(a).

      Count Ten: Having received an advanced fee payment in
      contemplation   of  drafting   and  filing   the  non-
      provisional patent application, and thereafter failing
      to do so, rendering the advanced fee unearned, by
      failing to refund the advanced fee, Attorney Stewart
      violated SCR 20:1.16(d).

      Count Eleven:   By failing to provide the OLR with a
      written response to F.W.'s grievance, Attorney Stewart
      violated SCR 22.03(2) and (6), enforced by SCR
      20:8.4(h).
      ¶12   On   January    27,     2017,     the   OLR   and   Attorney      Stewart

entered into a stipulation whereby Attorney Stewart admitted the

facts and all counts of misconduct alleged in the OLR complaint

and   agreed     to   the   level    of     discipline     sought      by    the   OLR

director,   namely     a    nine-month        suspension   of    his    license     to

practice law in Wisconsin.           Attorney Stewart represented that he

fully understands the misconduct allegations, fully understands
the ramifications should this court impose the stipulated level

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                                                                      No.        2016AP380-D



of    discipline,       fully    understands   his       right   to        contest      the

matter, fully understands his right to consult with and obtain

counsel, and states that his entry into the stipulation is made

knowingly and voluntarily.

       ¶13   The referee issued his report and recommendation on

January 25, 2017.           Based upon the parties' stipulation, the

referee found that the OLR met its burden of proof with respect

to all 11 counts of misconduct alleged in the complaint.                                The

referee concluded that the stipulated period of suspension of

Attorney Stewart's law license was reasonable and appropriate.

The referee also recommended, consistent with the stipulation,

that Attorney Stewart be ordered to reimburse the Fund in the

amount of $4,400 for the funds it paid to the Hs and that he be

required to pay restitution to F.W. in the amount of $8,000.

The referee further recommends that Attorney Stewart pay the

full costs of the proceeding.

       ¶14   This court will adopt the referee's findings of fact

unless   they     are    clearly      erroneous.     Conclusions            of    law   are
reviewed de novo.          See In re Disciplinary Proceedings Against

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                              The

court may impose whatever sanction it sees 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.

       ¶15   We    adopt        the    referee's    findings          of     fact       and

conclusions of law that Attorney Stewart violated the supreme
court rules as alleged in the 11 counts set forth above.                                 We
                                          9
                                                                     No.    2016AP380-D



further agree with the referee that a nine-month suspension of

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

appropriate     level      of    discipline.         Since    no    two    cases    are

precisely    the     same,      there   is   no    standard    sanction       for   any

particular     misconduct.         We   note      that   in   In    re    Disciplinary

Proceedings Against Smelzer, 2015 WI 97, 365 Wis. 2d 109, 870

N.W.2d 830, an attorney's license was suspended for nine months

for seven counts of misconduct, including failing to respond to

a client's request for information; failing to keep a client

reasonably informed about the status of a matter; and failing to

cooperate with an OLR investigation.                 We find the misconduct at

issue   here    to    be     somewhat    analogous       to   the    misconduct      in

Smelzer, and we find a similar suspension to be appropriate.                        We

agree with the referee that Attorney Stewart should be required

to reimburse the Fund and pay restitution to F.W., and we deem

it appropriate, as is our usual custom, to impose the full costs

of this disciplinary proceeding on Attorney Stewart.

    ¶16     IT IS ORDERED that the license of Alan R. Stewart to
practice law in Wisconsin is suspended for a period of nine

months, effective the date of this order.

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

of this order, Alan R. Stewart shall reimburse the Wisconsin

Lawyers' Fund for Client Protection in the amount of $4,400 and

shall pay restitution to F.W. in the amount of $8,000.

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

of this order Alan R. Stewart shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
                                         10
                                                                  No.    2016AP380-D



      ¶19    IT   IS     FURTHER   ORDERED       that   reimbursement      to   the

Wisconsin Lawyers' Fund for Client Protection and restitution to

F.W. shall be paid before the payment of costs to the Office of

Lawyer Regulation.

      ¶20    IT IS FURTHER ORDERED that, to the extent that he has

not   already     done   so,   Alan    R.    Stewart    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.

      ¶21    IT   IS     FURTHER      ORDERED    that    compliance      with   all

conditions of this order is required for reinstatement.                    See SCR

22.28(3).9

      ¶22    IT IS FURTHER ORDERED that the temporary suspension of

Attorney Stewart's license to practice law in Wisconsin, which

was imposed on February 10, 2015 due to his willful failure to

cooperate with the Office of Lawyer Regulation's investigation

in this matter, is lifted.




      9
       In   addition  to   obtaining   reinstatement  from   the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Stewart will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.




                                            11
    No.   2016AP380-D




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