                                                              2014 WI 13

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP2362-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        John R. Maynard, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        John R. Maynard,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST MAYNARD

OPINION FILED:          March 14, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2014 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.        2013AP2362-D


STATE OF WISCONSIN                               :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John R. Maynard, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
               Complainant,
                                                                   MAR 14, 2014
       v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
John R. Maynard,

               Respondent.




       ATTORNEY       disciplinary        proceeding.      Attorney's          license

suspended.



       ¶1      PER CURIAM.       We review a stipulation filed pursuant

to    SCR    22.121   by   the   Office   of   Lawyer     Regulation       (OLR)     and



       1
           SCR 22.12 provides: Stipulation.

            (1) The director may file with the complaint a
       stipulation of the director and the respondent to the
       facts, conclusions of law regarding misconduct, and
       discipline to be imposed. The supreme court may
       consider the complaint and stipulation without the
       appointment of a referee.
                                                                     No.   2013AP2362-D



Attorney John R. Maynard.             In the stipulation, Attorney Maynard

agrees that by failing to give timely written notice of the

suspension     of    his    license      to       practice    law,   and   consequent

inability to continue as counsel, to each of his clients; by

continuing to practice law after the date this court ordered his

license suspended; by knowingly making a false statement to a

court that his license had already been reinstated; by repeated

use of firm letterhead while he was suspended and other false

and misleading communications that he was an attorney permitted

to practice law in Wisconsin during the term of his suspension;

by   failing    to    fully        and   fairly       disclose       all   facts     and

circumstances       pertaining      to    his       alleged    misconduct;     and    by

filing   a   complaint      that    violated        Wis.     Stat.   § 802.05(2),     as

subsequently determined by a court, a one-year suspension of his

license to practice law in Wisconsin is an appropriate level of

discipline.         There    is     no   request        in    this    matter   for    a

restitution award, nor is there a request for the imposition of

costs against Attorney Maynard.



          (2) If the supreme court approves a stipulation,
     it shall adopt the stipulated facts and conclusions of
     law and impose the stipulated discipline.

          (3) If the supreme court rejects the stipulation,
     a referee shall be appointed and the matter shall
     proceed as a complaint filed without a stipulation.

          (4) A stipulation rejected by the supreme court
     has no evidentiary value and is without prejudice to
     the respondent's defense of the proceeding or the
     prosecution of the complaint.

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       ¶2    After careful review of the matter, we agree that a

one-year suspension of Attorney Maynard's license to practice

law in Wisconsin is a proper sanction.                        Since the matter is

being resolved without the appointment of a referee, we do not

impose any costs on Attorney Maynard.

       ¶3    Attorney Maynard was admitted to the practice of law

in    Wisconsin   in   1973.        He    was      admitted    to    practice     law   in

California the same year.                On December 29, 2009, this court

suspended     Attorney   Maynard's         license      to    practice      law   for   90

days, effective February 1, 2010, for failing to notify his

former law firm of payments for legal services that he received

and deposited in his personal account, and for making false and

misleading communications when he failed to identify his "of

counsel" status when he used law firm stationery and when he

represented on a postal application that he was a principal of

the    law   firm.     See     In   re     Disciplinary        Proceedings        Against

Maynard, 2009 WI 106, 322 Wis. 2d 53, 776 N.W.2d 583.

       ¶4    Attorney Maynard was reinstated from the disciplinary
suspension on January 31, 2011.                      However, his Wisconsin law

license was not restored to good standing until May 2, 2011, due

to existing administrative suspensions of his license caused by

his    noncompliance      with       continuing          legal       education     (CLE)

requirements and failure to pay State Bar of Wisconsin dues.

       ¶5    On September 1, 2011, this court temporarily suspended

Attorney     Maynard's   license         to       practice    law    for    his   willful

failure      to   respond      or        cooperate       in     an    OLR     grievance
investigation involving the conduct that is the subject of this
                                              3
                                                                         No.     2013AP2362-D



opinion.         That    temporary     suspension         remains       in    effect.      In

addition    to     the     temporary      disciplinary          suspension,        Attorney

Maynard's license to practice law is currently administratively

suspended    for        failure   to    pay       State   Bar      of    Wisconsin      dues,

failure to file a trust account certification, and noncompliance

with CLE requirements.

    ¶6      Attorney        Maynard's         license         to    practice       law     in

California was suspended for 90 days in 2011, as reciprocal

discipline to his 90-day suspension in Wisconsin.                              In 2012 his

California license was inactivated for failure to comply with

his obligations while he was suspended.                         On October 15, 2012,

his California license was suspended for failure to take and

pass the Multistate Professional Responsibility Examination by

August     21,    2012,     which      was      a    condition      of       reinstatement.

Attorney Maynard was ultimately disbarred from California for

his noncompliance, effective August 16, 2013.

    ¶7      Between the time the Wisconsin suspension order was

issued on December 29, 2009, and its February 1, 2010 effective
date, Attorney Maynard was in practice as a partner in Maynard,

Schmitt & Associates, in Cedarburg, Wisconsin.                            The only other

attorney     at    the     firm     was      Attorney     Maynard's           then-partner,

Mark S. Schmitt.

    ¶8      As of February 1, 2010, Attorney Maynard was attorney

of record in seven cases pending in the courts and he was also

performing       legal     services       for       various     other        clients.     On

January 29, 2010, Attorney Maynard wrote to one client advising
that Attorney Maynard was being suspended from the practice of
                                              4
                                                                             No.       2013AP2362-D



law for 90 days and would be unable to act as the client's

attorney during that period.                   Rather than advising the client to

seek   legal       advice     of      his     choice      elsewhere,         as    required      by

SCR 22.26(1)(b), Attorney Maynard said that the pending matters

would be handled by Mark Schmitt.                         The letter went on to say,

"As    an    alternative,          you      can    seek       legal     services        elsewhere

regarding these two matters."                      This letter was the only letter

notifying     a     client       of     his   suspension          that      Attorney      Maynard

produced for the OLR, despite the OLR's request for information

about, and copies of, all such letters.

       ¶9     On       October     25,      2013,       the     OLR    filed       a    complaint

alleging     nine       counts     of    misconduct           with    respect      to    Attorney

Maynard's      failure        to      give        timely       written       notice       of    the

suspension        of    his   license         to       practice       law   as     required      by

SCR 22.26(1); his continuing to practice law during the term of

his suspension; misrepresenting himself as an attorney while he

was in fact suspended; filing a frivolous complaint; and failing

to provide complete information to the OLR during the course of
its investigation.

       ¶10    The       complaint        alleged          the     following            counts    of

misconduct:

            [COUNT I] By failing to give timely written
       notice of the suspension of his license to practice
       law, and consequent inability to continue as counsel,
       to each of his clients, to each of the courts before
       which a client's legal action was pending, and to each
       other party's counsel in those actions, by failing to
       advise each of [his] clients, in writing, to seek
       legal counsel elsewhere, and by failing to provide an
       affidavit listing all clients in all pending matters

                                                   5
                                                 No.   2013AP2362-D


    and listing all matters pending before any court or
    administrative agency, Maynard violated SCR 20:8.4(f)2
    and SCR 22.26(1).3


    2
       SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers; . . . ."
    3
       SCR 22.26(1) states: Activities following suspension or
revocation.

         (1) On or before the effective date of license
    suspension or revocation, an attorney whose license is
    suspended or revoked shall do all of the following:

         (a) Notify by certified mail all clients being
    represented in pending matters of the suspension or
    revocation and of the attorney's consequent inability
    to act as an attorney following the effective date of
    the suspension or revocation.

         (b) Advise the clients to seek legal advice of
    their choice elsewhere.

         (c) Promptly provide written notification to the
    court or administrative agency and the attorney for
    each party in a matter pending before a court or
    administrative agency of the suspension or revocation
    and of the attorney's consequent inability to act as
    an attorney following the effective date of the
    suspension or revocation.    The notice shall identify
    the successor attorney of the attorney's client or, if
    there is none at the time notice is given, shall state
    the client's place of residence.

         (d) Within the first 15 days after the effective
    date   of   suspension   or   revocation,   make   all
    arrangements for the temporary or permanent closing or
    winding up of the attorney's practice.    The attorney
    may assist in having others take over clients' work in
    progress.

         (e) Within 25 days after the effective date of
    suspension or revocation, file with the director an
    affidavit showing all of the following:

                               6
                                                 No.   2013AP2362-D


         [COUNT II] By swearing in a SCR 22.26(1)(e)
    affidavit that his name had been removed from the law
    firm's [stationery] and that there were no pending
    court matters not identified in his affidavit, and by
    omitting the names of clients with pending legal
    matters, when he knew all of that information to be
    inaccurate   and/or   incomplete,  Maynard    violated
                 4
    SCR 20:8.4(c) .

         [COUNT III] By continuing to practice law in
    Wisconsin after February 1, 2010, when the Supreme
    Court of Wisconsin ordered his license suspended,
    Maynard violated SCR 20:8.4(f), SCR 22.26(2),5 and
    SCR 20:5.5(a)(1).6

         (i) Full compliance with the provisions of the
    suspension or revocation order and with the rules and
    procedures regarding the closing of the attorney's
    practice.

         (ii) A list of all jurisdictions, including
    state, federal and administrative bodies, before which
    the attorney is admitted to practice.

         (iii) A list of clients in all pending matters
    and a list of all matters pending before any court or
    administrative agency, together with the case number
    of each matter.

         (f) Maintain records of the various steps taken
    under this rule in order that, in any subsequent
    proceeding instituted by or against the attorney,
    proof of compliance with the rule and with the
    suspension or revocation order is available.
    4
       SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
    5
        SCR 22.26(2) provides as follows:

         An attorney whose license to practice law is
    suspended or revoked or who is suspended from the
    practice of law may not engage in this state in the
    practice of law or in any law work activity
    customarily done by law students, law clerks, or other
    paralegal personnel, except that the attorney may
    engage in law related work in this state for a
                                 7
                                                   No.     2013AP2362-D


         [COUNT IV] By knowingly making a false statement
    to the court in the Petrolon v. Badger Sheet Metal
    Works [(Brown County Case No. 2010CV34)] matter that
    his license had already been reinstated, and, in a
    subsequent letter to the same court, by omitting
    relevant facts and creating the false impression that
    OLR had consented to his resumption of the practice of
    law,   Maynard    violated   SCR   20:3.3(a)(1)7   and
    SCR 20:8.4(c).

         [COUNT V] By repeated use of firm letterhead
    while he was suspended and multiple other false or
    misleading communications that he was an attorney
    permitted to practice law in Wisconsin during his
    suspension,   Maynard violated SCR  20:7.1(a)8 and
                   9
    SCR 20:7.5(a).

    commercial employer itself not engaged in the practice
    of law.
    6
        SCR 20:5.5(a)(1) states that a lawyer shall not:

         [P]ractice law in a jurisdiction where doing so
    violates the regulation of the legal profession in
    that jurisdiction except that a lawyer admitted to
    practice in Wisconsin does not violate this rule by
    conduct in another jurisdiction that is permitted in
    Wisconsin under SCR 20:5.5 (c) and (d) for lawyers not
    admitted in Wisconsin; . . . .
    7
       SCR 20:3.3(a)(1) states that a lawyer shall not knowingly
"make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."
    8
       SCR 20:7.1(a) states: "A lawyer shall not make a false or
misleading communication about the lawyer or the lawyer's
services.   A communication is false or misleading if it: (a)
contains a material misrepresentation of fact or law, or omits a
fact necessary to make the statement considered as a whole not
materially misleading; . . . ."
    9
        SCR 20:7.5(a) provides as follows:

          A lawyer shall not use a firm name, letterhead or
    other     professional   designation   that    violates
    SCR 20:7.1. A trade name may be used by a lawyer in a
    private practice if it does not imply a connection
                                 8
                                                 No.   2013AP2362-D


     [COUNT VI] By misrepresenting himself to counsel
for another party as an attorney while he was
suspended, by making conflicting representations about
whether he or his partner drafted the Articles of
Amendment for Absolute Automations Systems, Inc., by
dishonestly claiming lack of knowledge of SCR 22.28,
by    making    selective  and    incomplete    factual
representations to create a false impression about
OLR's position on his practice of law during May 2010,
by deceitfully stating in a letter to OLR that while
suspended he had not undertaken work for clients, or
filed or attended hearings in any courtroom, by
misrepresenting   on   his "Petition   to   Voluntarily
Surrender a Wisconsin License," that there were no
grievances pending against him, Maynard violated
SCR 20:8.4(c).

     [COUNT VII] By serving as general counsel for a
corporation   in   Georgia,  meeting  with   corporate
management personnel in Georgia to discuss legal
issues, giving legal advice to management personnel of
the corporation located in Georgia, providing legal
documents he prepared to the Georgia corporation and
by representing the corporation to others, all without
being duly licensed as an attorney in Georgia, Maynard
violated SCR 20:5.5(a)(1).

     [COUNT VIII] By failing to fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct, by failing to answer questions and
produce documents and information requested by OLR by
generally failing to provide relevant information, and
by providing incomplete information and information
containing    misrepresentations,    Maynard    violated
                                      10
SCR 22.03(2)    and   SCR   22.03(6),     enforced   via
SCR 20:8.4(h).11

with a government agency or with a public or
charitable legal services organization and is not
otherwise in violation of SCR 20:7.1.
10
     SCRs 22.03(2) and (6) provide as follows:

     (2) 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
                             9
                                                   No.   2013AP2362-D


         [COUNT IX] By filing a complaint in Petrolon v.
    Badger Sheet Metal Works that violated Wis. Stat.
    § 802.05(2), as subsequently determined by a court,
    Maynard violated SCR 20:3.1(a).12



    disclose all facts and circumstances pertaining to the
    alleged misconduct within 20 days after being served
    by ordinary mail a request for a written response.
    The director may allow additional time to respond.
    Following receipt of the response, the director may
    conduct further investigation and may compel the
    respondent to answer questions, furnish documents, and
    present any information deemed relevant to the
    investigation.

           . . . .

         (6) 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.
    11
       SCR 20:8.4(h) states it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by
SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or
SCR 22.04(1); . . . ."
    12
         SCR 20:3.1(a) states:

           (a) In representing a client, a lawyer shall not:

         (1) knowingly advance a claim or defense that is
    unwarranted under existing law, except that the lawyer
    may advance such claim or defense if it can be
    supported by good faith argument for an extension,
    modification or reversal of existing law;

         (2) knowingly advance a factual position unless
    there is a basis for doing so that it not frivolous;
    or

         (3) file a suit, assert a position, conduct a
    defense, delay a trial or take other action on behalf
    of the client when the lawyer knows or when it is
                                 10
                                                                    No.        2013AP2362-D



      ¶11    On November 15, 2013, the OLR and Attorney Maynard

entered into a stipulation whereby Attorney Maynard agreed that

his conduct violated all of the supreme court rules referenced

in the OLR's complaint.             He further agreed that it would be

appropriate for this court to impose the level of discipline

sought by the OLR director, namely a one-year suspension of his

license to practice law in Wisconsin.

      ¶12    Attorney Maynard states that he fully understands the

misconduct allegations and the ramifications should this court

impose a one-year license suspension.                   He also states that he

fully understands his right to contest this matter and his right

to consult with counsel.           He represents that his entry into the

stipulation is made knowingly and voluntarily.

      ¶13    Having carefully considered this matter, we approve

the   stipulation       and     adopt   the        stipulated     facts    and       legal

conclusions of professional misconduct.                    We also agree that a

one-year suspension of Attorney Maynard's license to practice

law   in    Wisconsin     is    appropriate.          We   note    that        in    In    re
Disciplinary       Proceedings     Against         Hahnfeld,    2012      WI     17,      338

Wis. 2d 740, 809 N.W.2d 382, an attorney's license was suspended

for   one   year    for   six    counts       of   misconduct      relating         to    his

continued     representation       of     a    client      while    suspended,            his

failure to disclose his suspension to the client or the OLR, and

his failure to cooperate with the OLR; and three counts related


      obvious that such an action would serve                       merely          to
      harass or maliciously injure another.

                                          11
                                                             No.   2013AP2362-D



to the attorney's failure to hold in trust that client's fees

and refusal to refund fees when he was terminated by the client.

Attorney Hahnfeld had two prior public reprimands and a 60-day

license suspension, a more extensive disciplinary history than

does Attorney Maynard.         In addition, a component of Attorney

Hahnfeld's   misconduct     involved    client   fees,     whereas    Attorney

Maynard's misconduct did not involve any fee issues.                   On the

other hand, Attorney Hahnfeld's conduct did not include making

false representations to a court or filing a frivolous lawsuit,

and Attorney Hahnfeld's case related to only one client whereas

Attorney Maynard represented multiple clients while his license

was suspended.      On balance, however, the misconduct at issue in

Hahnfeld and the misconduct at issue in this matter are somewhat

similar, leading to the conclusion that a one-year suspension of

Attorney Maynard's license is an appropriate sanction.

    ¶14   IT IS ORDERED that the license of John R. Maynard to

practice law in Wisconsin is suspended for one year, effective

the date of this order.
    ¶15   IT   IS    FURTHER   ORDERED    that      the   temporary   license

suspension of September 1, 2011, which arose out of Attorney

Maynard's willful failure to respond or cooperate with the OLR's

grievance investigation in this matter, is lifted.

    ¶16   IT IS FURTHER ORDERED John R. Maynard shall continue

compliance   with    the   provisions    of   SCR    22.26   concerning    the

duties of a person whose license to practice law in Wisconsin

has been suspended.


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