                                                         2016 WI 72

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP617-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Diane R. Caspari, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Diane R. Caspari,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST CASPARI

OPINION FILED:          July 19, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2016 WI 72
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2016AP617-D


STATE OF WISCONSIN                               :            IN SUPREME COURT

In the Matter of the Disciplinary Proceedings
Against Diane R. Caspari, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
           Complainant,
                                                                   JUL 19, 2016
      v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Diane R. Caspari,

           Respondent.




      ATTORNEY      disciplinary     proceeding.            Attorney's         license

suspended.



      ¶1   PER CURIAM.      We     review    a       stipulation        pursuant       to

Supreme Court Rule (SCR) 22.12 between the Office of Lawyer

Regulation (OLR) and Attorney Diane R. Caspari.                    The stipulation

provides     that    Attorney    Caspari     committed            six     counts       of

professional        misconduct     arising           out     of      four        client

representations and requests that the court impose a sixty-day

suspension of Attorney Caspari's license to practice law in this
state.
                                                                    No.       2016AP617-D



       ¶2    After carefully reviewing this matter, we accept the

stipulation and impose the requested discipline.                          Pursuant to

the    stipulation      and   because         Attorney    Caspari       has     already

reimbursed the Office of the State Public Defender (SPD) for

fees she did not earn, we do not order any restitution.                         Because

this matter has been resolved by a stipulation under SCR 22.12

without the need for the appointment of a referee, we also do

not impose any costs on Attorney Caspari.

       ¶3    Attorney Caspari was admitted to the practice of law

in    Wisconsin   in    January   2004.         She   maintains     a    private     law

practice in Milwaukee.

       ¶4    Attorney Caspari has been the subject of professional

discipline on one prior occasion.                 In 2015 she was privately

reprimanded for her misconduct in two client representations.

In the first matter, Attorney Caspari failed to file a petition

for a writ of certiorari on behalf of an incarcerated client

within the statutory time period, in violation of SCR 20:1.3.

She also failed to respond to that client's multiple inquiries
about the status of the matter, in violation of SCR 20:1.4(a)(3)

and (a)(4).       Further, she charged that client legal fees for

preparing the certiorari petition even though she never filed

it, and she failed to refund those fees upon termination of the

representation, in violation of SCRs 20:1.5(a) and 20:1.16(d).

In    the   second     matter,    Attorney      Caspari    again        violated     SCR

20:1.4(a)(3) and (a)(4) by failing to respond to the client's

requests for information about the status of his matter.


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    ¶5       In    the    stipulation        in    the    present        case,      Attorney

Caspari      states      that    she     fully     understands          the     allegations

against her and her right to contest those allegations.                                    She

represents that she also understands her right to consult with

counsel and the ramifications of the imposition of the requested

level of discipline.             Finally she affirms that her entry into

the stipulation is knowing and voluntary and that it was not the

product of negotiation for any reduction in charges or requested

level   of    discipline.          Attorney        Caspari      admits        all    of    the

allegations of misconduct and assents to the level of discipline

requested by the OLR.

    ¶6       The    first       matter      addressed     in    the      stipulation        is

Attorney Caspari's representation of M.W.                          The SPD appointed

Attorney      Caspari       in     July         2012     to     represent           M.W.   in

postconviction proceedings.                 Over the next nearly three years,

Attorney     Caspari      failed       to   advance      M.W.'s    case       through      the

postconviction        proceedings        into     an   appeal     of    his     conviction.

She filed multiple motions seeking extensions of time, but then
often failed to meet the new deadline.                          She did not file a

postconviction motion for over a year.                    Even after she filed the

motion, she did not schedule a hearing date with the circuit

court for another five months.                  In that intervening time period,

she failed to provide a status report to the court of appeals as

she was ordered to do.              After the circuit court conducted the

hearing      and   denied        M.W.'s      postconviction            motion,      Attorney




                                              3
                                                                     No.    2016AP617-D



Caspari failed to ensure that a written order was submitted to

the circuit court for approximately nine months.1

     ¶7     Once the order was finally submitted, the court of

appeals extended the deadline for filing a notice of appeal.

Attorney Caspari, however, failed to file a notice of appeal or

a further extension motion by the new deadline, causing M.W.'s

appeal rights to lapse.                 When the SPD communicated with her

about    this    matter,    she    stated       that   she   had   developed     a     new

theory of the defense for appeal and that she was now planning

to file a second postconviction motion and to request a further

extension of the deadline for filing an appeal so she could

pursue    the    second    postconviction         motion.      She   still     failed,

however, to file any second postconviction motion or to seek a

further extension of time from the court of appeals.

     ¶8     In    May     2015    the    court    of   appeals     issued   an    order

stating that it could "discern no reason for inaction in this

matter" and referred the case to the SPD for a response as to

whether Attorney Caspari should remain counsel for M.W.                        The SPD
filed a response that acknowledged that some of the delay in

M.W.'s    case   had    been     the    result    of   late   transcripts        and    of

     1
       The circuit court did initially direct the counsel for the
state to prepare and submit a proposed order. Attorney Caspari,
however, never followed up when that attorney did not file a
proposed order, which delayed the filing of a notice of appeal
on M.W.'s behalf. Ultimately, the court of appeals had to issue
an order to Attorney Caspari either to request the prosecutor to
prepare the order or to submit a proposed order herself.     Only
after this order from the court of appeals did Attorney Caspari
submit a proposed order to the circuit court.


                                            4
                                                                             No.       2016AP617-D



needed investigation, but also concluded that Attorney Caspari

had   not    acted     with     diligence           or    competence             and    had   not

communicated properly with M.W.                    The SPD further stated that it

would appoint new counsel for M.W.                       Attorney Caspari also filed

a   response   admitting       that      her       conduct   had       "unreasonably          and

improperly     held    up     [M.W.'s]     appeal."              As    a    result       of   the

responses, the court of appeals discharged Attorney Caspari from

her representation of M.W. and directed the SPD to appoint new

counsel.

      ¶9    Attorney         Caspari     stipulates          that          her     conduct     in

failing to pursue postconviction or appellate relief for M.W. in

a timely manner constitutes a violation of SCR 20:1.3.2

      ¶10   The    second       matter         stems      from        Attorney         Caspari's

appointment to represent M.W.3 in a criminal case pending against

him in the circuit court.                 After M.W. was found guilty and

sentenced, the SPD appointed Attorney Diane Erickson in May 2014

to represent M.W. in postconviction proceedings and on appeal.

Attorney Erickson made several requests to Attorney Caspari for
her complete file on M.W.'s case.                    Eventually, Attorney Caspari

produced    only      some    of   the    materials          requested            by    Attorney

Erickson.      Various materials that should have been in the file

were missing, including various items of discovery.                                     Attorney

      2
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
      3
       This is a different M.W. than the individual who was the
subject of the postconviction motion described in the previous
matter.


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                                                                       No.    2016AP617-D



Erickson    was    forced    to    obtain       some   of    these   items     from   the

investigator who had worked on M.W.'s case and to reconstruct

other parts of the discovery and case file from the files of the

police    department       and    the   district       attorney's      office.        The

failure of Attorney Caspari to provide a complete file and the

time and effort required to reconstruct the file resulted in

substantial       delays    to    M.W.'s    postconviction           proceedings      and

appeal.

     ¶11    As a result of M.W.'s allegations and the OLR's review

of M.W.'s criminal case file during its investigation, it became

evident    that     Attorney      Caspari       had    billed    the    SPD    and    had

received payment for several jail visits to M.W. that did not

occur.     Attorney Caspari failed to correct her invoices to the

SPD and did not refund the payments for those entries for years

until    February    2016,       just   prior     to   the    filing   of     the   OLR's

complaint     in    this     disciplinary         proceeding.           In    addition,

Attorney Caspari billed the SPD for a visit to M.W.'s mother and

brother.      Attorney       Caspari      acknowledged,         however,      that    she
merely went to the mother's house, knocked on the door a couple

of times without receiving a response, waited for a while, then

placed her business card in the door, and left.

     ¶12    In the stipulation, Attorney Caspari agrees that her

failure to deliver her case file for M.W. to successor counsel

constituted a violation of SCR 20:1.16(d).4                    She also agrees that


     4
         SCR 20:1.16(d) provides:

                                                                             (continued)
                                            6
                                                                            No.     2016AP617-D



her submission of invoices containing charges for tasks that she

did not actually perform and her failure to correct her invoices

or refund those fees for years constituted a violation of SCR

20:8.4(c).5

     ¶13       Count    4      of     the     stipulation         relates     to     Attorney

Caspari's appointment in 2014 to represent I.W. in a criminal

case in the Racine County circuit court.                          On the day that I.W.'s

trial    was    to     start,       the     circuit      court    judge     asked    Attorney

Caspari and the prosecutor whether there had been a negotiated

resolution       to    the      charges       against          I.W.    Attorney       Caspari

responded that there was no negotiated resolution and asked for

an adjournment of the trial "due to the fact that we have a

material witness, an important witness for our case, unknown to

me left the state on Friday."                      The judge asked Attorney Caspari

whether    the       witness        had     been       under    subpoena,     and    Attorney

Caspari responded, "Yes."                    The witness referenced by Attorney

Caspari    was        I.W.'s        mother,        who    had    not   been       subpoenaed.


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


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                                                                     No.    2016AP617-D



Moreover, as evidenced by a subsequent email she sent to an SPD

director, Attorney Caspari had known prior to the trial date

that I.W.'s mother had intended to leave the state.                         Thus, her

statements to the circuit court had been false.

      ¶14     In Count 4 of the stipulation, Attorney Caspari admits

that her false statements to the circuit court, which she failed

to correct, violated SCR 20:3.3(a)(1).6

      ¶15     The   final   matter      addressed      in   the      stipulation     is

Attorney      Caspari's     representation       of    A.H.     in    postconviction

proceedings.        Attorney Caspari was appointed to serve as A.H.'s

postconviction        counsel      in    January       2013.         When    an    SPD

representative subsequently spoke with Attorney Caspari about

the status of A.H.'s case, she confirmed that she had received

the   final    transcript     in   the    case    on    April     13,   2013,     which

established a deadline of June 11, 2013, for Attorney Caspari to

file either a postconviction motion or a notice of appeal on

A.H.'s behalf.       Attorney Caspari, however, failed to file either

a postconviction motion or a notice of appeal.                    She also did not
file a motion for an extension of the deadline, thereby allowing

A.H.'s appeal rights to lapse.                Attorney Caspari did not inform

A.H. that she had failed to meet the deadline.                       Ultimately, the

SPD appointed another attorney as successor counsel for A.H. and

successfully moved the court of appeals to extend the deadline

      6
       SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly:
(1) 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. . . ."


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                                                                           No.        2016AP617-D



for A.H. to file a postconviction motion, thereby reinstating

his appeal rights.

       ¶16       Attorney Caspari stipulates that her failure to pursue

postconviction or appellate relief on A.H.'s behalf in a timely

manner constituted a lack of diligence, in violation of SCR

20:1.3.          She also stipulates that her failure to inform A.H.

that she had allowed his postconviction and appellate rights to

lapse constituted a violation of SCR 20:1.4(a)(3).7

       ¶17       The    stipulation       requests          that    the    court        suspend

Attorney Caspari's license to practice law in Wisconsin for a

period of 60 days, which is the level of discipline initially

sought      by    the    OLR.       In    its       memorandum      in    support       of    the

stipulation, the OLR points to two prior decisions in which this

court imposed 60-day suspensions for analogous conduct.                                   In re

Disciplinary Proceedings Against Callahan, 2016 WI 8, 366 Wis.

2d     503,      874     N.W.2d     98     (imposing         60-day       suspension          for

professional           misconduct        that       included       failing       to     perform

necessary work, advancing a settlement offer not authorized by
client,       misrepresenting        settlement         authority,        and    failing       to

keep       client      informed     of    status       of     her    matter);            In    re

Disciplinary Proceedings Against Fitzgerald, 2008 WI 101, 314

Wis. 2d 7, 752 N.W.2d 879 (accepting stipulation for 60-day

suspension for misconduct that included appearing in court on

behalf of clients during license suspension, billing the SPD for

       7
       SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."


                                                9
                                                                             No.   2016AP617-D



court appearances during license suspension, misleading a county

clerk about the status of her license, and failing to cooperate

with the OLR's investigation).                The OLR further notes that there

are    both     aggravating          and    mitigating          factors       here.         The

aggravating factors include the fact that Attorney Caspari has

been privately reprimanded on a previous occasion, some evidence

of a dishonest motive, multiple offenses, and two patterns of

misconduct.      On the mitigating side of the ledger are the fact

that   the    overcharge       to     the   SPD     was    a    small     amount      and    was

ultimately repaid, Attorney Caspari's cooperation with the OLR's

investigation,         and     her    prompt       entry        into     a    comprehensive

stipulation      that        admits    her        misconduct       and       resolves       this

disciplinary proceeding.               Thus, the OLR believes that a 60-day

suspension, consistent with Callahan and Fitzgerald, would be an

appropriate level of discipline in this matter.

       ¶18    After carefully reviewing this matter, we accept the

stipulation      and    impose       the    requested       60-day       suspension.          In

light of the fact that Attorney Caspari has recently refunded
the overcharges to the SPD, we do not impose any restitution

obligation.      Finally, given the filing of a stipulation at the

outset of this proceeding that avoided litigation costs and the

need   to     appoint    a    referee,       we    do     not    impose      any   costs     on

Attorney Caspari.

       ¶19    IT IS ORDERED that the license of Diane R. Caspari to

practice law in Wisconsin is suspended for a period of 60 days,

effective August 8, 2016.


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                                                               No.   2016AP617-D



    ¶20   IT    IS   FURTHER    ORDERED    that   Diane   R.   Caspari      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(2).




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    No.   2016AP617-D




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