                                                         2017 WI 24

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP243-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Adam Walsh, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Adam Walsh,
                                  Respondent.
                             DISCIPLINARY PROCEEDINGS AGAINST WALSH

OPINION FILED:          March 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                     2017 WI 24
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2017AP243-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Adam Walsh, Attorney at Law.


Office of Lawyer Regulation,                                      FILED
              Complainant,                                   MAR 23, 2017
      v.                                                        Diane M. Fremgen
                                                             Clerk of Supreme Court
Adam Walsh,

              Respondent.




      ATTORNEY     disciplinary     proceeding.       Attorney's         license

revoked.


      ¶1      PER CURIAM.    Attorney Adam Walsh has filed a petition

for the consensual revocation of his license to practice law in

Wisconsin pursuant to Supreme Court Rule (SCR) 22.19.1                  Attorney


      1
       SCR 22.19        provides:   Petition    for    consensual        license
revocation.

           (1) An attorney who is the subject of an
      investigation  for   possible   misconduct  or    the
      respondent in a proceeding may file with the supreme
                                                     (continued)
                                                                 No.   2017AP243-D



Walsh's    petition   states    that       he   cannot    successfully    defend

against the allegations of professional misconduct arising out

of   two   Office     of   Lawyer      Regulation        (OLR)   investigations

concerning his conduct.        An OLR summary of those investigations

and of the potential allegations of professional misconduct is

attached to Attorney Walsh's petition.



     court a petition for the revocation by consent or his
     or her license to practice law.

          (2) The petition shall state that the petitioner
     cannot successfully defend against the allegations of
     misconduct.

          (3) If a complaint has not been filed, the
     petition shall be filed in the supreme court and shall
     include the director's summary of the misconduct
     allegations being investigated. Within 20 days after
     the date of filing of the petition, the director shall
     file in the supreme court a recommendation on the
     petition. Upon a showing of good cause, the supreme
     court may extend the time for filing a recommendation.

          (4) If a complaint has been filed, the petition
     shall be filed in the supreme court and served on the
     director and on the referee to whom the proceeding has
     been assigned. Within 20 days after the filing of the
     petition, the director shall file in the supreme court
     a response in support of or in opposition to the
     petition and serve a copy on the referee. Upon a
     showing of good cause, the supreme court may extend
     the time for filing a response. The referee shall file
     a report and recommendation on the petition in the
     supreme court within 30 days after receipt of the
     director's response.

          (5) The supreme court shall grant the petition
     and revoke the petitioner's license to practice law or
     deny the petition and remand the matter to the
     director or to the referee for further proceedings.


                                       2
                                                                         No.     2017AP243-D



       ¶2     Attorney Walsh was admitted to the practice of law in

Wisconsin         in    January    2008.      He      most    recently    practiced      in

Madison under the name Affordable Legal Services of Wisconsin.

Attorney Walsh sold the law firm to another attorney effective

January 1, 2015.             He continued to work at the firm, however,

until November 25, 2015.

       ¶3     Attorney Walsh has been the subject of professional

discipline on one prior occasion.                      In 2015 he consented to the

imposition of a private reprimand pursuant to SCR 22.09 for

improperly using his client trust account credit card on three

separate occasions to disburse trust account funds prior to the

deposit      and       availability   of     those      funds     for    the    respective

clients and for failing to maintain and to produce required

trust    account        records.      Private         Reprimand    2015-1      (electronic

copy                                       available                                     at

https://compendium.wicourts.gov/app/raw/002757.html).

       ¶4     Attorney       Walsh    filed       a   petition     for    the    voluntary

resignation of his license to practice law in this state in June
2016.        Because the OLR's response to that petition indicated

that    it    was       conducting    an    investigation         regarding       Attorney

Walsh,      his    voluntary       resignation        petition     has    been    held   in

abeyance.         In light of his current petition, his petition for

voluntary resignation is being dismissed pursuant to a separate

order being issued simultaneously with this opinion.

       ¶5     The OLR summary attached to Attorney Walsh's petition

for     consensual         revocation       sets      forth     two     main     areas   of
investigation into potential ethical violations.
                                              3
                                                                   No.   2017AP243-D



    ¶6     The   first      area    involves     Attorney     Walsh's     multiple

instances of insufficient balances in his client trust account.

Attorney Walsh maintained a client trust account at JP Morgan

Chase Bank in Madison from November 19, 2010, until October 14,

2015.     At   the   time      he   closed    the    account,     Attorney    Walsh

withdrew for himself the remaining balance of $868.26.                     A check

Attorney Walsh had issued against the trust account, however,

was subsequently presented for payment on November 3, 2015, and

was returned for insufficient funds.                Attorney Walsh claims that

he reimbursed the recipient of the trust account check via other

means.

    ¶7     Although      the    OLR's     investigation      was     hampered     by

Attorney Walsh's refusal or inability to provide records for his

trust account, the available information shows that on multiple

occasions, the trust account contained substantially less money

than it should have in 2014 and 2015.                For example, bank records

show that the balance in the trust account was $469,349.55 on

May 31, 2014.        At that time, the trust account should have
contained at least $78,351.86 in funds belonging to two clients,

J.M.G. and M.J.E.           Subtracting that amount from the balance

would leave a remaining balance of $390,997.69.                      This amount,

however, was more than $50,000 less than Attorney Walsh had

previously admitted in a letter he should have been holding for

another client, a substantial trust.                Indeed, that amount would

have been more than $78,000 less than the amount identified in

the March 28, 2014 annual report of the trust.                     Moreover, the
limited   records    the     OLR    was   able      to   obtain    indicate     that
                                          4
                                                                          No.      2017AP243-D



Attorney Walsh deposited over $589,000 into his trust account on

behalf      of   the    trust,       but    those       records     also        show     total

disbursements          of    only      approximately          $530,000          to       proper

recipients of the trust's funds.                     Because the OLR has not been

able to obtain complete records, it cannot tell whether there

were other disbursements to proper recipients for which records

are not available or whether Attorney Walsh converted some or

all of the remaining trust's funds to his own use.

       ¶8    Similar        possible       shortcomings        in     disbursements         of

other client funds appear in connection with at least three

other clients.          The amounts that do not appear to have been

disbursed to the clients or to other proper recipients, however,

are substantially smaller than was the case with the trust's

money.      What is clear is that in at least one case, the balance

of   Attorney     Walsh's       client      trust       account     dipped       more      than

$30,000 below the amount that should have been held in trust for

just one client.            Thus, that amount of client funds had to have

been   converted       to    the    use    of       other   clients      or   to     Attorney
Walsh's personal use.

       ¶9    Indeed,        Attorney       Walsh      admitted      to    the      OLR     that

starting at least as far back as 2011 he had placed substantial

sums of his own money into the trust account and had not kept

track of those funds.              Given the fact that on multiple occasions

the balance in his trust account was substantially less than the

amounts that were owed to clients, one can only conclude that

Attorney Walsh needed to deposit his own funds into the account


                                                5
                                                                      No.    2017AP243-D



at   times    to   avoid      overdrafts        and   to   repay    amounts    he    had

previously converted to his own use.

      ¶10    In    the   course    of    its     investigation,      the    OLR    asked

Attorney     Walsh       to    produce    a      transaction       register,      client

ledgers, and a monthly reconciliation for his trust account.

Attorney Walsh failed to produce any of these requested records.

He produced only a single bank statement for October 2015, the

month prior to closing the account.                    His response to the OLR's

request stated merely that he was no longer practicing law and

that he did not possess any further records.

      ¶11    The OLR's summary indicates that its investigation of

Attorney Walsh's handling of his client trust account involves

Attorney Walsh's potential violations of the following Supreme

Court     Rules:     SCR      20:8.4(c);2       SCR   20:1.15(b)(1);3       former   SCR

      2
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
      3
       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.

      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.


                                            6
                                                            No.    2017AP243-D



20:1.15(b)(3);4      former   SCR       20:1.15(e)(4)c.;5     former      SCR

20:1.15(e)(6) and (7);6 and former SCR 20:1.15(f)(1)a., b., and

g.7

      4
       Former SCR 20:1.15(b)(3) provided: "No funds belonging to
the lawyer or law firm, except funds reasonably sufficient to
pay monthly account service charges, may be deposited or
retained in a trust account."
      5
       Former SCR 20:1.15(e)(4)c. provided: "A lawyer shall not
make deposits to or disbursements from a trust account by way of
an Internet transaction."
      6
          Former SCR 20:1.15(e)(6) and (7) provided:

           (6) 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.

           (7) All trust account records have public aspects
      related to a lawyer's fitness to practice.        Upon
      request of the office of lawyer regulation, or upon
      direction of the supreme court, the records shall be
      submitted to the office of lawyer regulation for its
      inspection, audit, use, and evidence under any
      conditions to protect the privilege of clients that
      the court may provide.    The records, or an audit of
      the records, shall be produced at any disciplinary
      proceeding involving the lawyer, whenever material.
      Failure    to   produce    the   records   constitutes
      unprofessional conduct and grounds for disciplinary
      action.
      7
        Former SCR 20:1.15(f)(l)a. provided: The transaction
      register shall contain a chronological record of all
      account transactions, and shall include all of the
      following:

             1. the date, source, and amount of all deposits;

           2. the date, check or transaction number, payee
      and amount of all disbursements, whether by check,
      wire transfer, or other means;

                                                                  (continued)
                                    7
                                                    No.   2017AP243-D




     3. the date and amount of every other deposit or
deduction of whatever nature;

     4. the identity of the client for whom funds were
deposited or disbursed; and

     5. the    balance   in       the   account   after   each
transaction.

Former SCR 20:1.15(f)(1)b. provided:

     A subsidiary ledger shall be maintained for each
client or 3rd party for whom the lawyer receives trust
funds that are deposited in an IOLTA account or any
other pooled trust account. The lawyer shall record
each receipt and disbursement of a client's or 3rd
party's   funds   and  the   balance   following  each
transaction. A lawyer shall not disburse funds from an
IOLTA account or any pooled trust account that would
create a negative balance with respect to any
individual client or matter.

Former SCR 20:1.15(f)(1)g. 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.


                              8
                                                                  No.   2017AP243-D



       ¶12       The    second    investigation   that    the     OLR   has   been

conducting relates to Attorney Walsh's representation of O.B.

Attorney Walsh agreed to represent O.B. in attempting to have

his felony convictions expunged or to seek a pardon for those

convictions.           According to his fee agreement with O.B., Attorney

Walsh accepted an advanced flat fee of $1,500 at or near the

time       of   entering    into   the   representation    and    deposited    the

advanced fee into his law firm's business account.                       Attorney

Walsh claimed to the OLR that he had done work on O.B.'s behalf

and was able to describe some of that work.                     According to the

OLR's summary Attorney Walsh promised O.B. in July 2015 that he

would be following up on a lead that required research, but

warned that O.B. would likely be out of luck if the research did

not yield favorable results.              Attorney Walsh, however, failed to

communicate the results of his research to O.B.                   He then failed

to advise O.B. in November 2015 that he was leaving the law firm

and was ceasing his practice of law.                  Attorney Walsh failed to

provide O.B. with any of the notices that were required when an
attorney placed an advanced fee into the attorney's business

account         and    utilized   the   alternative    advanced   fee   procedure

outlined in former SCR 20:1.15(b)(4m).8                 Indeed, Attorney Walsh


       8
           Former SCR 20:1.15(b)(4m) provided:

            Alternative protection for advanced fees.       A
       lawyer who accepts advanced payments of fees may
       deposit the funds in the lawyer's business account,
       provided that review of the lawyer's fee by a court of
       competent jurisdiction is available in the proceeding
                                                       (continued)
                                           9
                                                     No.    2017AP243-D




to which the fee relates, or provided that the lawyer
complies with each of the following requirements:

     a. Upon accepting any advanced payment of fees
pursuant to this subsection, the lawyer shall deliver
to the client a notice in writing containing all of
the following information:

    1. the amount of the advanced payment;

    2. the basis or rate of the lawyer's fee;

     3. any expenses   for    which   the   client    will    be
responsible;

     4. that the lawyer has an obligation to refund
any unearned advanced fee, along with an accounting,
at the termination of the representation;

     5. that the lawyer is required to submit any
unresolved   dispute   about  the   fee   to   binding
arbitration within 30 days of receiving written notice
of such a dispute; and

     6. the ability of the client to file a claim with
the Wisconsin lawyers' fund for client protection if
the lawyer fails to provide a refund of unearned
advanced fees.

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

      1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;

     2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and

                                                           (continued)
                             10
                                                           No.     2017AP243-D



failed to provide O.B. with a final accounting that showed how

he had earned the $1,500 flat fee.

     ¶13   The OLR was unable to determine the full extent of

Attorney Walsh's work on O.B.'s behalf because Attorney Walsh

says that he is no longer in possession of his billing software,

and the lawyer who purchased the law firm from Attorney Walsh

states that she is unable to access Attorney Walsh's billing

records.

     ¶14   The    OLR's   summary      indicates   in    connection       with

Attorney Walsh's representation of O.B. that it is investigating

possible violations of the following Supreme Court Rules:                  SCR

20:1.3;9   SCR    20:1.4(a);10   SCR     20:1.16(d);11   and     former    SCR

20:1.15(b)(4m).

          3. notice that, if the lawyer is unable to
     resolve the dispute to the satisfaction of the client
     within 30 days after receiving notice of the dispute
     from the client, the lawyer shall submit the dispute
     to binding arbitration.

          c. Upon timely receipt of written notice of a
     dispute from the client, the lawyer shall attempt to
     resolve that dispute with the client, and if the
     dispute is not resolved, the lawyer shall submit the
     dispute to binding arbitration with the State Bar Fee
     Arbitration Program or a similar local bar association
     program within 30 days of the lawyer's receipt of the
     written notice of dispute from the client.

          d. Upon receipt of an arbitration award requiring
     the lawyer to make a payment to the client, the lawyer
     shall pay the arbitration award within 30 days, unless
     the client fails to agree to be bound by the award of
     the arbitrator.
     9
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."


                                    11
                                                               No.   2017AP243-D



    ¶15    Attorney   Walsh's     petition    for     consensual     revocation

asserts that he is seeking the consensual revocation of his

license freely, voluntarily, and knowingly.                 He states that he

cannot successfully defend himself against the allegations of

misconduct   summarized   above    and    more      fully   described    in    the

OLR's    summary.     Attorney    Walsh      also    acknowledges       that   he


    10
         SCR 20:1.4(a) provides that a lawyer shall:

         (1) Promptly inform the client of any decision or
    circumstance with respect to which the client's
    informed consent, as defined in SCR 20:1.0(f), is
    required by these rules;

         (2) reasonably consult with the client about the
    means by which the client's objectives are to be
    accomplished;

         (3) keep the client reasonably informed about the
    status of the matter;

         (4) promptly comply with reasonable requests by
    the client for information; and

         (5) consult with the client about any relevant
    limitation on the lawyer's conduct when the lawyer
    knows that the client expects assistance not permitted
    by the Rules of Professional Conduct or other law.
    11
         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 advanced 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.


                                    12
                                                                       No.   2017AP243-D



understands he is giving up his right to contest any of the

OLR's allegations, as well as his right to have the assistance

of counsel in this matter.                Finally, the petition acknowledges

that if the court grants the petition and revokes his license,

Attorney Walsh will be subject to the requirements of SCR 22.26

and,    should     he    ever    wish   to    seek   the    reinstatement       of    his

license, the reinstatement procedure set forth in SCRs 22.29-

22.33.

       ¶16    The OLR's summary and its recommendation in support of

the petition make clear that it is not seeking a restitution

award in this case.             While it is clear that there were multiple

instances of conversion of trust account funds (either for the

benefit of other clients or for Attorney Walsh's personal use),

the OLR states that it has not been able, given the limited

records      and   information       it      was   able    to    obtain,     either    to

identify to whom restitution might be owed or to arrive at any

reasonably ascertainable restitution amounts.                         The OLR further

notes that despite the apparent looseness with which Attorney
Walsh    handled        his   client    trust      account,      no   individual      has

notified it that Attorney Walsh still owes him or her any money.

Similarly, given the lack of billing records, the OLR cannot

determine with any reasonable certainty that O.B. should receive

a   refund    of   any    particular      amount     of    his   advanced     fee     from

Attorney Walsh.

       ¶17    Having reviewed Attorney Walsh's petition, the OLR's

summary of possible misconduct, and its written recommendation
in favor of the petition, we conclude that the petition for
                                             13
                                                                         No.     2017AP243-D



consensual revocation should be granted.                     It is clear from the

OLR's   summary     of    misconduct       allegations           that    Attorney      Walsh

treated his client trust account as if it were a community fund

at his constant disposal.               His disregard for the core ethical

value of protecting the integrity of each client's funds and his

complete rejection of any obligation to maintain the required

records    that   are         necessary    to     keep    client        funds    in    order

represent    serious       breaches       of     his    ethical    obligations         as    a

lawyer in this state.            His ethical lapses are compounded by his

apparent     lack        of      diligence        and     communication           in      the

representation       of       O.B.        Moreover,        the     private       reprimand

previously imposed on Attorney Walsh demonstrates that there is

a pattern of misconduct.

    ¶18     Given    the        OLR's     admitted        inability       to     determine

whether any particular client or third party is owed any money

by Attorney Walsh, and to arrive at a reasonably ascertainable

amount, we have no choice but to accede to the OLR's request not

to award restitution in this matter.                    We are disturbed that this
outcome    appears       to    result     from    Attorney       Walsh's        failure     to

create,    preserve,      and/or     produce       the    necessary       records.          We

note, however, that if Attorney Walsh were ever to seek the

reinstatement of his license, he would be required to prove

affirmatively that he had made full restitution to all persons

injured or harmed by his misconduct.                    See SCR 22.29(4m).

    ¶19     Finally, because this matter is being resolved via a

petition for consensual revocation without the need to appoint a


                                            14
                                                         No.     2017AP243-D



referee or hold an extensive hearing, we do not impose any costs

on Attorney Walsh.

    ¶20   IT IS ORDERED that the petition of Adam Walsh for the

consensual    revocation   of   his    license   to   practice     law   in

Wisconsin is granted.

    ¶21   IT IS FURTHER ORDERED that the license of Adam Walsh

to practice law in Wisconsin is revoked, effective the date of

this order.

    ¶22   IT IS FURTHER ORDERED that, to the extent he has not

already done so, Adam Walsh shall comply with the provisions of

SCR 22.26 concerning the duties of a person whose license to

practice law in Wisconsin has been revoked.




                                  15
    No.   2017AP243-D




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