                                                         2016 WI 43

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2015AP1966-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against James G. Moldenhauer, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        James G. Moldenhauer,
                                  Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST MOLDENHAUER

OPINION FILED:          May 24, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2016 WI 43
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.     2015AP1966-D


STATE OF WISCONSIN                               :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against James G. Moldenhauer, Attorney at Law:


Office of Lawyer Regulation,                                            FILED
            Complainant,
                                                                   MAY 24, 2016
       v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
James G. Moldenhauer,

            Respondent.




       ATTORNEY    disciplinary      proceeding.              Attorney's        license

suspended.



       ¶1   PER CURIAM.          We review a stipulation filed pursuant

to    Supreme   Court     Rule   (SCR)   22.12   by     the    Office      of    Lawyer

Regulation (OLR) and Attorney James G. Moldenhauer.                             In the

stipulation, Attorney Moldenhauer agrees that he engaged in two

counts of misconduct involving his clients, G.C. (now deceased),

and    G.C.'s     wife,   L.C.    (collectively,       the     C.s.).         Attorney
Moldenhauer also agrees that a 60-day suspension of his license
                                                                                  No.      2015AP1966-D



to practice law in Wisconsin is an appropriate sanction for his

misconduct. The OLR does not request restitution, and it also

does       not    seek       the      imposition          of     costs          against       Attorney

Moldenhauer.

          ¶2     After careful review of the matter, we approve the

stipulation          and    agree      that     a       60-day      suspension          of    Attorney

Moldenhauer's          license         to     practice           law       is    an     appropriate

sanction.        Because        this    matter       is    being       resolved         without       the

appointment of a referee, we do not impose any costs on Attorney

Moldenhauer.          No restitution was sought and none is ordered.

          ¶3     Attorney Moldenhauer was admitted to practice law in

Wisconsin        in    1982.           The    most       recent        address        furnished        by

Attorney Moldenhauer to the State Bar of Wisconsin is in Eau

Claire, Wisconsin.

          ¶4     Attorney Moldenhauer has a disciplinary history.                                      In

1996, Attorney Moldenhauer consented to a private reprimand for

misconduct         consisting          of     failing          to      act      with       reasonable

diligence, failing to communicate properly with a client, and
failing to render a full accounting of estate funds in respose

to    a    client's        request.          Private      Reprimand          96-28.           In   2006,

Attorney Moldenhauer was publicly reprimanded for misconduct in

two       matters.         In   the     first       matter,      he        failed     to     act     with

reasonable        diligence,          failed    to       return        a   client's          file,    and

failed to cooperate with the OLR's investigation.                                     In the second

matter, he failed to provide his client with an itemized billing

statement, failed to refund the unearned portion of his advanced
fee, and failed to cooperate in the OLR's investigation. Public
                                                    2
                                                            No.   2015AP1966-D



Reprimand of James G. Moldenhauer, 2006-11.             In 2008, Attorney

Moldenhauer was publicly reprimanded for misconduct consisting

of failing to communicate properly with a client, failing to act

with reasonable diligence, and failing to obey a court order.

Public Reprimand of James G. Moldenhauer, 2008-01.                    In 2012,

Attorney   Moldenhauer    was    publicly     reprimanded   for   misconduct

consisting of failing to communicate properly with a client and

failing to act with reasonable diligence.             Public Reprimand of

James G. Moldenhauer, 2012-13.

      ¶5   In September 2015, the OLR filed a complaint alleging

that Attorney Moldenhauer engaged in two counts of misconduct

involving his clients, the C.s.             In March 2016, the OLR and

Attorney Moldenhauer filed a stipulation pursuant to SCR 22.12.

We take the following facts from the parties' stipulation.

      ¶6   In   2009,    the    C.s.   hired    Attorney    Moldenhauer     to

represent them in a Wisconsin Department of Revenue (DOR) tax

matter concerning the 2004 through 2007 tax years.                    In July

2011, Attorney Moldenhauer filed a petition with the Wisconsin
Tax   Appeals   Commission     (Commission)    appealing    a   DOR   decision

that disposed of two cases involving the C.s.

      ¶7   On October 12, 2011, the Commission sent a Notice of

Telephone Status Conference to Attorney Moldenhauer informing

him that a telephone status conference would be held before a

Commissioner on December 13, 2011 at 10:30 a.m.                   The notice

stated:    "If the Commission is unable to reach you or your

representative by telephone, the conference will proceed, and
the petitions for review will be subject to dismissal, pursuant
                                       3
                                                                     No.     2015AP1966-D



to Wis. Stat. §§ 802.10(7) and 805.03."                    In a subsequent letter

to the C.s., Attorney Moldenhauer stated that he had received

the Notice of Telephone Status Conference, and that it was not

necessary for them to attend the status conference.

      ¶8    Attorney Moldenhauer failed to appear for the December

13, 2011 telephone status conference, despite the fact that the

Commission called Attorney Moldenhauer's office four times at or

about the scheduled conference time.

      ¶9    On December 14, 2011, the Commission sent a Status

Conference Memorandum and Order to Attorney Moldenhauer.                            This

document confirmed that Attorney Moldenhauer did not appear at

the December 13, 2011 telephone status conference; scheduled a

telephone status conference for December 21, 2011 at 2:30 p.m.;

and   warned:         "The    cases     will    be     dismissed     if    Petitioners'

attorney is not present for the status conference."

      ¶10   Attorney Moldenhauer failed to appear for the December

21, 2011 telephone status conference, despite the fact that the

Commission called Attorney Moldenhauer's office four times at or
about the scheduled conference time.

      ¶11   During         the    December      21,      2011      telephone      status

conference, DOR's attorney appeared and made a motion to dismiss

based on Attorney Moldenhauer's failure to appear and failure to

prosecute.       In    a     December    22,    2011    Order   of    Dismissal,     the

Commission      dismissed        the    petition     for   review     in    the   cases

involving the C.s.

      ¶12   A Notice of Appeal Information was attached to the
December 22, 2011 Order of Dismissal.                      The Notice of Appeal
                                            4
                                                                      No.     2015AP1966-D



Information had a notice of rights for rehearing or judicial

review, the times allowed for each, and filing instructions for

each option.

     ¶13   Attorney Moldenhauer did not inform the C.s. of the

December 22, 2011 Order of Dismissal, nor did he respond to the

C.s.'   telephone    calls       requesting            information     regarding        the

status of the cases, nor did he file a petition for a rehearing

before the Commission or a petition for judicial review.

     ¶14   In approximately March 2012, the C.s. contacted the

Commission to inquire about the status of the cases.                             Also in

approximately      March     2012,       the       C.s.      terminated         Attorney

Moldenhauer's representation.

     ¶15   On    March    27,    2012,      the    Commission        sent     the    C.s.,

Attorney   Moldenhauer,         and   DOR's        attorney     a     notice     that     a

telephone status conference would be held on April 5, 2012 at

11:30 a.m.      The C.s., Attorney Moldenhauer, and DOR's attorney

appeared   for    this     telephone        status       conference.        During   this

conference, the Commission informed the C.s. that the petition
to   review      their     cases      was        dismissed      due     to      Attorney

Moldenhauer's failure to appear at the December 13 and 21, 2011

telephone status conferences and that the period of time in

which to file an appeal had expired.

     ¶16   In    August    2012,      the       C.s.    filed   a    malpractice        and

breach of contract action against Attorney Moldenhauer for his

mishandling of their tax matters. The case eventually settled

for $50,000.


                                            5
                                                                     No.     2015AP1966-D



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

misconduct with respect to Attorney Moldenhauer's representation

of the C.s.:

     Count    One:     By    failing    to    appear         for   telephone     status

      conferences     on     December    13    and      21,    2011,     resulting    in

      dismissal of [the C.s.'] cases, and thereafter by failing

      to file a petition for rehearing or a petition for judicial

      review, and by otherwise failing to act in furtherance of

      [the C.s.'] interests, [Attorney] Moldenhauer violated SCR

      20:1.3.1

     Count    Two:     By    failing     to     keep      [the     C.s.]    reasonably

      informed regarding the status of the cases, and by failing

      to inform [the C.s.] of the December 22, 2011 Order of

      Dismissal,      and    by   failing      to    respond        to     [the   C.s.']

      telephone       calls       requesting         information,            [Attorney]

      Moldenhauer violated SCR 20:1.4(a)(3) and (4).2

      ¶18     In the stipulation, Attorney Moldenhauer agrees that

the factual allegations in the OLR's complaint are accurate and
that he committed the professional misconduct charged in the

complaint.     The    stipulation       states      that      Attorney      Moldenhauer

fully understands the misconduct allegations against him, his

      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)(3) and (4) provides:     "A lawyer shall:
. . . .(3) keep the client reasonably informed about the status
of the matter; (4) promptly comply with reasonable requests by
the client for information."


                                          6
                                                                                  No.     2015AP1966-D



right to contest those allegations, and the ramifications that

would   follow        from      this     court's           imposition      of     the     stipulated

level     of        discipline.        The       stipulation          also        indicates        that

Attorney Moldenhauer understands his right to counsel and is

represented          by    counsel      in       this      matter.    Attorney          Moldenhauer

verifies that he is entering into the stipulation knowingly and

voluntarily and that his entry into the stipulation represents

his decision not to contest this matter.                               Attorney Moldenhauer

agrees in the stipulation that it would be appropriate for this

court to impose a 60-day suspension of his license to practice

law in Wisconsin.

      ¶19      Having        considered           this          matter,      we     approve         the

stipulation and adopt the stipulated facts and legal conclusions

of professional misconduct.                      From our independent review of the

matter,        we     agree      that        a        60-day      suspension        of      Attorney

Moldenhauer's             license    to      practice           law   in     Wisconsin        is    an

appropriate sanction.                  We agree with the OLR's observation in

its   memorandum           in   support          of       the   stipulation        that     Attorney
Moldenhauer's previous private and public reprimands for similar

misconduct have not impressed upon him the importance of his

ethical obligations.                We also note that in its memorandum, the

OLR identifies a number of arguably similar cases in which we

imposed a 60-day suspension, as is requested here.                                        See In re

Disciplinary Proceedings Against Ermert, 2007 WI 10, 298 Wis. 2d

622, 726 N.W.2d 250 (attorney who had been disciplined on five

prior     occasions          received        a     60-day        suspension         for     lack     of
diligence,           failing        to       keep           a     client          informed,        and
                                                      7
                                                                     No.     2015AP1966-D



misrepresentation);          In    re    Disciplinary      Proceedings             Against

Lister, 2010 WI 108, 329 Wis. 2d 289, 787 N.W.2d 820 (attorney

who had been disciplined on two prior occasions received a 60-

day suspension for lack of diligence, failing to keep a client

informed,    failing      to   forward       the   client's    file     to    successor

counsel     and    refund      advanced      fee   payments,     and       failing     to

cooperate with an investigation); In re Disciplinary Proceedings

Against Anderson, 2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100

(attorney    who    had     been   disciplined      on   three       prior    occasions

received a 60–day suspension for lack of diligence, failing to

keep a client informed, and failing to explain matters to a

client);     In re Disciplinary Proceedings Against Theobald, 2010

WI 102, 329 Wis. 2d 1, 786 N.W.2d 834 (attorney who had been

disciplined on two prior occasions received a 60–day suspension

for lack of diligence and failing to keep a client informed).

Although no two disciplinary matters are identical, we agree

with the OLR's observation that a 60-day suspension of Attorney

Moldenhauer's      law    license       is    consistent      with    the     sanctions
imposed in these arguably similar cases.

    ¶20     Because         Attorney         Moldenhauer       entered        into      a

comprehensive stipulation under SCR 22.12, thereby obviating the

need for the appointment of a referee and a full disciplinary

proceeding, we do not impose any costs in this matter.

    ¶21     Because       Attorney      Moldenhauer      entered      into     a    civil

settlement with the C.s. related to his mishandling of their tax

matters, we agree with the OLR that no restitution is warranted.


                                             8
                                                      No.    2015AP1966-D



    ¶22   IT IS ORDERED that the license of James G. Moldenhauer

to practice law in Wisconsin is suspended for a period of 60

days, effective June 27, 2016.

    ¶23   IT IS FURTHER ORDERED that James G. Moldenhauer shall

comply with the provisions of SCR 22.26 concerning the duties of

an attorney whose license to practice law has been suspended.

    ¶24   IT    IS   FURTHER   ORDERED   that   compliance   with    all

conditions of this decision is required for reinstatement. See

SCR 22.28(2).




                                   9
    No.   2015AP1966-D




1
