                                                              2014 WI 15

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2011AP1400-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Jeffrey L. Elverman, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Jeffrey L. Elverman,
                                  Respondent-Appellant.



                           DISCIPLINARY PROCEEDINGS AGAINST ELVERMAN

OPINION FILED:          March 25, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
       For the respondent-appellant, there were briefs by Jeffrey
L. Elverman, Genoa City.


       For the Office of Lawyer Regulation, there was a brief by
Anne MacArthur and Anne MacArthur Law, LLC, Madison.
                                                                       2014 WI 15
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.     2011AP1400-D


STATE OF WISCONSIN                           :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Jeffrey L. Elverman, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
            Complainant-Respondent,
                                                               MAR 25, 2014
       v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
Jeffrey L. Elverman,

            Respondent-Appellant.




       ATTORNEY    disciplinary       proceeding.       Attorney's         license

revoked.



       ¶1   PER   CURIAM.    Attorney     Jeffrey     L.    Elverman       appeals

from that portion of a referee's report recommending that his

license to practice law be revoked effective the date of this

court's order rather than making revocation retroactive to the

date that his prior nine-month license suspension ended.                           He

also   appeals    the   amount   of   restitution       recommended        by    the

referee.
                                                                           No.        2011AP1400-D



      ¶2    Upon careful review of this matter, we agree with the

referee     that    given       the     seriousness         of    Attorney         Elverman's

misconduct, the revocation of his license to practice law in

Wisconsin should not be retroactive.                         We agree with Attorney

Elverman     and    the       Office     of        Lawyer    Regulation          (OLR)       that

restitution should be ordered in the same amount and upon the

same terms as that ordered by the circuit court in Attorney

Elverman's    underlying            criminal       case.         Finally,        we     find   it

appropriate to assess the full costs of this proceeding, which

are   $19,558.08         as    of     September       5,    2013,        against        Attorney

Elverman.

      ¶3    Attorney          Elverman    was       admitted      to     practice        law   in

Wisconsin in 1986.            On May 12, 2008, Attorney Elverman's license

was suspended for nine months for failure to report co-trustee

fees he received as income in his state and federal income tax

returns    for     the    years       1999    to     2003.         In     re     Disciplinary

Proceedings Against Elverman, 2008 WI 28, 308 Wis. 2d 524, 746

N.W.2d 793.         The        nine-month          suspension       would        have      ended
February 13,       2009.            Attorney         Elverman's          license         remains

suspended.

      ¶4    The most serious counts of misconduct alleged in the

OLR's amended complaint, which was filed on July 10, 2012, arose

out   of   Attorney      Elverman's       representation            of    D.P.          Attorney

Elverman was introduced to D.P., who was 82 years old, in 2000,

when he was a partner at Quarles & Brady.                               D.P.'s investment

advisor     introduced         them.         D.P.,     a    widow,       wanted         Attorney
Elverman to prepare an estate plan for her.                             She had assets of
                                               2
                                                                             No.     2011AP1400-D



between $1,000,000 and $2,000,000, including substantial liquid

assets.

       ¶5      In    May     2000     D.P.     signed         various     estate         planning

documents      prepared         by   Attorney      Elverman,        including        a    durable

financial power of attorney and a durable power of attorney for

health      care.         The    financial      advisor,         Leonard      Campbell,        was

D.P.'s      agent     under      both      powers     of      attorney,       with       Attorney

Elverman designated as successor agent.

       ¶6      Attorney Elverman also drafted a will for D.P., along

with a revocable trust.                   The trust established terms for its

administration            during     D.P.'s    lifetime          and     provided        for   the

creation of the D.P. Foundation (the Foundation) upon her death.

       ¶7      D.P. was the initial trustee of the revocable trust.

Campbell was the successor trustee, and Attorney Elverman was

the successor trustee if Campbell did not act or ceased to act.

Campbell       was    the       initial      trustee       for     the    Foundation,          and

Attorney Elverman was the successor trustee.

       ¶8      By late 2000, D.P.'s mental acuity began to decline as
a result of Alzheimer's disease.                    During 2001, Campbell resigned

as   D.P.'s       agent     under     her    powers      of      attorney,     and       Attorney

Elverman became D.P.'s agent for both finances and health care.

       ¶9      In February 2001 one of D.P.'s physicians wrote to

another      of     her    doctors        noting    he     had    spoken      with       Attorney

Elverman       and    that      D.P.'s      ability      to      think    cognitively          was

substantially        impaired.            Around    this      time,      Attorney        Elverman

contracted with Professional Organizers Unlimited to assist D.P.
with     her      activities         of    daily    living.            The     principal        of
                                               3
                                                                       No.     2011AP1400-D



Professional Organizers Unlimited, Marion Whelpley, continued to

provide services to D.P. through 2008.

      ¶10       By     March    of    2003,    D.P.'s     Alzheimer's        disease   had

progressed to the stage that she was no longer competent to

manage her personal or financial affairs.                     On March 24, 2003, at

Attorney Elverman's request, Dr. Brian Hirano, another of D.P.'s

physicians, provided Attorney Elverman with a certification of

D.P.'s incapacitation which was sent by facsimile to Attorney

Elverman's office at Quarles & Brady.                        In July and September

2003, Dr. Hirano sent letters to D.P. explaining that her memory

would continue to decline over time.                     Attorney Elverman received

copies of those letters.

      ¶11       In or about August of 2003, Attorney Elverman drafted

an amendment to D.P.'s revocable trust making him trustee of her

trust and the Foundation.                This amendment gave him the power to

appoint a successor trustee of each entity and gave him complete

control over the disposition of D.P.'s estate during her life

and after her death.                 D.P. signed the amendment on August 14,
2003,   several         months       after    Dr.   Hirano   had   provided      Attorney

Elverman with a certification of D.P.'s incapacitation.

      ¶12       In or about September of 2004, concerns were raised at

Quarles     &    Brady     as    the    result      of   allegations    that     Attorney

Elverman's time records and billing were false.                        Upon review of

the   firm's          records,    Quarles      &    Brady    learned    that     Attorney

Elverman        had    received       $230,000      in   co-trustee    fees     from   the

Donald W. Kastner Trusts that he had not turned over to Quarles
& Brady.        Attorney Elverman also failed to originally report the
                                                4
                                                                      No.     2011AP1400-D



receipt of the Kastner trustee income on his tax returns.                             This

failure formed the basis for the 2008 license suspension.

       ¶13     After   conducting     an    inquiry       in   the    Kastner      matter,

Quarles & Brady asked that Attorney Elverman provide a sworn

statement certifying all circumstances where he had acted or was

acting as a trustee.           In the statement he submitted to Quarles &

Brady in October 2004, Attorney Elverman failed to disclose that

he was acting as D.P.'s trustee.

       ¶14     Between     December   12,       2001,    and   September      23,    2004,

Attorney       Elverman      was    paid      at       least    $604,000      by    D.P.,

purportedly for performing 30 to 35 hours per week of personal

services that he billed at $150 an hour.

       ¶15     In   November      2004,    after       leaving    Quarles      &    Brady,

Attorney Elverman joined Michael Best & Friedrich.                          He failed to

disclose his relationship with D.P. to Michael Best & Friedrich,

even       though   the    firm    required      new    members      to   identify    all

existing client relationships.                  Attorney Elverman's employment

at Michael Best & Friedrich was terminated when the firm became
aware of the disciplinary proceedings against him involving the

Kastner trusts.

       ¶16     In   June    2008,     following         his    suspension,      Attorney

Elverman filed his SCR 22.261 affidavit with the OLR, but he

failed to list D.P. as one of his clients.

       1
           SCR 22.26 states, in relevant part:

            (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:

                                            5
                                                                       No.    2011AP1400-D



      ¶17    After   his     license     was    suspended,        Attorney      Elverman

resigned as D.P.'s agent under her durable financial power of

attorney and appointed Dwayne Johnson, an accountant he knew, as

the new agent.          Attorney Elverman also resigned as trustee of

D.P.'s     revocable     trust    and   of     the    Foundation        and    appointed

Johnson trustee of each entity.                 Attorney Elverman and Johnson

had   an    agreement    whereby      Johnson    would        resign    and    reappoint

Attorney Elverman to again be D.P.'s agent under the durable

powers of attorney, and trustee of D.P.'s revocable trust and of

the Foundation, when Attorney Elverman's license to practice law

was reinstated.

      ¶18    In July of 2008, while D.P. was living in an assisted

living     facility,     a   social     worker       raised    concerns       about   the

enforceability of D.P.'s durable power of attorney for health

care because both Campbell and Attorney Elverman had witnessed

the   document,      making      it   invalid    under        Wisconsin       law.     In

September     2008   the     social     worker       filed    a   petition      for   the

appointment of a guardian of D.P.'s person and estate.




             . . . .

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

             . . . .

           (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.

                                          6
                                                                      No.     2011AP1400-D



       ¶19   In   October     2008      in       response     to    the     guardianship

petition, Attorney Elverman executed a document attempting to

withdraw his resignation as D.P.'s financial power of attorney.

He also filed an objection to the guardianship petition and

filed his own guardianship petition asking that he be named the

guardian of D.P.'s person and estate.

       ¶20   On November 13, 2008, Milwaukee County Circuit Judge

John   DiMotto     issued    an   order      appointing       Supportive       Community

Services (SCS) as D.P.'s temporary guardian.                       Judge DiMotto held

that   Attorney     Elverman      was   not       an    interested    person      in    the

guardianship proceeding and thus had no standing in the matter

since he had resigned as D.P.'s financial power of attorney and

because D.P.'s health care power of attorney was invalid.                             Judge

DiMotto held that Attorney Elverman's attempt to withdraw his

resignation as D.P.'s financial power of attorney was improper,

as was Attorney Elverman's attempt to appoint Johnson as D.P.'s

agent under her durable financial power of attorney, because

Attorney Elverman lost the power to appoint a successor agent
when he resigned as D.P.'s agent.

       ¶21   On December 3, 2008, upon SCS's petition, Milwaukee

County Probate Court Commissioner Patrice A. Baker determined

that Attorney Elverman's attempt to resign as trustee of D.P.'s

trust and appoint Johnson in his place was ineffective because

Attorney     Elverman's     resignation          only    referred     to    the   trustee

appointment       under     the   article         of    the   trust        creating     the

Foundation upon D.P.'s death and did not refer to the article
governing appointment of the trustee of the trust administered
                                             7
                                                                     No.    2011AP1400-D



during D.P.'s lifetime.              The court commissioner ordered that

Attorney Elverman be removed as trustee of the trust, vacated

his appointment of Johnson as trustee of the Foundation, and

appointed SCS the trustee of each entity.

       ¶22    On December 5, 2008, Judge DiMotto issued an order

appointing SCS as D.P.'s permanent guardian, after finding that

Attorney Elverman had "engaged in questionable conduct as it

relates      to   the    ward,    including     not   making   her     a    client    of

Michael Best & Friedrich when he became a partner in the firm."

Judge     DiMotto       ordered    SCS,    as   D.P.'s     guardian,        to    obtain

accountings from Attorney Elverman and Johnson, finding it was

"essential that Jeffrey L. Elverman account to a third party for

his actions as trustee/agent for the ward."                    At Judge DiMotto's

direction, SCS began an investigation into Attorney Elverman's

conduct in relation to D.P.

       ¶23    A   forensic        accountant     retained      by     SCS        reviewed

Attorney     Elverman's      billing      records     at   Quarles    &    Brady    from

January 2002 through September 2004, the last month he billed
time at Quarles & Brady before his departure.                   During all of the

time    Attorney      Elverman     was    allegedly    performing      services       for

D.P., he was employed on a full-time basis as an equity partner

at   Quarles      &     Brady.     Attorney     Elverman     never     disclosed       to

Quarles & Brady that he was performing services for D.P., nor

did he report his receipt of income from her to the firm.

       ¶24    Adding the hours he billed at Quarles & Brady to the

hours he claimed to have worked for D.P., Attorney Elverman
would have worked 75 hours a week, 52 weeks a year, in 2002; 74
                                            8
                                                                     No.   2011AP1400-D



hours a week, 52 weeks a year, in 2003; and 54 hours a week in

2004.   While at Quarles & Brady, Attorney Elverman prepared, or

had prepared at his direction, four fake invoices purportedly on

behalf of Quarles & Brady, representing legal work he had done

on   D.P.'s    behalf,    which    D.P.    paid.        The   fake    invoices      were

generated on Quarles & Brady computers but were prepared outside

of the usual billing system employed by the firm.                          Two checks

drawn on D.P.'s account correspond to the dates and amounts of

the fake invoices and were made payable to, and endorsed by,

Attorney Elverman.         Two other checks drawn on D.P.'s account

correspond to the dates and amounts of the fake invoices, but

the payee is unknown.            One of the two checks is in the exact

amount of a deposit into Attorney Elverman's checking account

that occurred within two weeks of the date of one of the fake

invoices.

      ¶25     As a result of Quarles & Brady's inquiry into Attorney

Elverman's billing practices, Quarles & Brady determined it had

not received any payment regarding the fake invoices, nor were
there any time entries in its billing system matching them.

Quarles & Brady's further review of Attorney Elverman's time

entries in the firm's billing system indicated that for certain

days,   the    aggregate    of    the     hours    logged     on   the     system    for

Attorney Elverman's work for the firm, plus the hours indicated

in the fake invoices, totaled more than 20 hours in a day and in

one case more than 24 hours in a day.

      ¶26     Attorney Elverman did not include any of the income he
received    from   D.P.    on    the    state     and   federal    tax     returns    he
                                           9
                                                                                No.       2011AP1400-D



originally         filed       in    2001,      2002,      or    2003.        He     underreported

income he received from D.P. on his original state and federal

tax returns filed in 2004.

       ¶27    In     September             of    2009,          the     OLR's        investigative

committee asked that Attorney Elverman provide copies of his

income       tax    returns          for     2001        through      2004,     or       provide    an

authorization            for    the    OLR      to       obtain       the   returns        from    the

Department of Revenue.                  Attorney Elverman failed to respond to

this request until March of 2010, and then claimed there was no

Department of Revenue form authorizing release of tax returns.

The OLR ultimately obtained copies of the returns by subpoenaing

Attorney Elverman's accountant.

       ¶28    On    December          6,    2010,        Attorney      Elverman       was     charged

with    violating          Wis.      Stat.      § 943.20(1)(a),             theft        of   movable

property in excess of $10,000, a Class G felony, in Milwaukee

County circuit court as a result of his conduct regarding D.P.

       ¶29    The OLR filed a complaint against Attorney Elverman on

June 17, 2011.            Attorney Elverman filed a motion asking that the
OLR proceedings be stayed pending disposition of the criminal

case.    This court granted the motion on October 25, 2011.                                        On

December 15, 2011, a jury found Attorney Elverman guilty of

theft of movable property in excess of $10,000.                                     A judgment of

conviction         was     entered         against        him   on     March       13,    2012.      A

sentence consisting of five years of initial confinement and

five years of extended supervision was imposed and stayed and

Attorney Elverman was placed on probation for five years, with
seven    months      in        the    House     of       Corrections        with     work     release
                                                    10
                                                                 No.    2011AP1400-D



privileges.     Attorney Elverman was ordered to make restitution

in   the    amount     of    $325,000,        less   payments    already        made.

Specifically,    the      Department     of     Corrections     was    ordered     to

facilitate payment to the victim2 in the amount of $1,500 per

month during 2012, $2,000 per month during 2013, and $3,000 per

month during 2014, until paid in full.

     ¶30    James    J.     Winiarski    was     appointed      referee    in     the

matter.    On July 10, 2012, the OLR filed an amended complaint.

The amended complaint alleged the following counts of misconduct

with respect to Attorney Elverman's dealings with D.P.:

          [COUNT ONE] By using his position of trust as
     [D.P.'s] lawyer, trustee, and financial power of
     attorney to take at least $604,000 from her between
     December 2001 through September 2004, [Attorney]
     Elverman engaged in conduct involving dishonesty,
     fraud, deceit or misrepresentation, in violation of
     SCR 20:8.4(c).3

          [COUNT TWO] By collecting fees totaling at least
     $604,000 from [D.P.] from December 2001 to September
     2004, for which he has inadequate substantiating
     records, [Attorney] Elverman charged an unreasonable
     fee, in violation of former SCR 20:1.5(a), effective
     prior to July 1, 2007.4


     2
         The record indicates that D.P. is now deceased.
     3
       SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."
     4
       Former SCR 20:1.5(a) (effective through June 30, 2007)
provided as follows:

          A lawyer's fee shall be reasonable. The factors
     to be considered in determining the reasonableness of
     a fee include the following:

                                         11
                                                  No.     2011AP1400-D


         [COUNT THREE] By concealing from [Quarles &
    Brady (Q&B)] the fees he earned from [D.P.], and by
    concealing from Q&B and [Michael Best & Friedrich] his
    position as trustee for [D.P.'s] Trust, [Attorney]
    Elverman violated a standard of conduct set forth by
    the   Wisconsin    Supreme    Court   in   Disciplinary
    Proceedings   Against   Shea,   190  Wis. 2d 560,   527
                                                     5
    N.W.2d 314 (1995), actionable via SCR 20:8.4(f).

         [COUNT FOUR] By failing to report on his federal
    and state income tax returns for 2001, 2002, and 2003
    any of the income he received from [D.P.], and by
    underreporting the income he received from [D.P.] on
    his original federal and state income tax returns for
    2004, [Attorney] Elverman violated a standard of
    conduct set forth by the Wisconsin Supreme Court in
    Disciplinary    Proceedings   Against    Owens,   172


         (1) the time and labor required, the novelty and
    difficulty of the questions involved, and the skill
    requisite to perform the legal service properly;

         (2) the likelihood, if apparent to the client,
    that the acceptance of the particular employment will
    preclude other employment by the lawyer;

         (3) the fee customarily charged in the locality
    for similar legal services;

         (4) the    amount   involved   and   the       results
    obtained;

         (5) the time limitations imposed by the client
    or by the circumstances;

         (6) the nature and length of the professional
    relationship with the client;

         (7) the experience, reputation, and ability of
    the lawyer or lawyers performing the services; and

         (8)   whether the fee is fixed or contingent.
    5
       SCR 20:8.4(f) states 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; . . . ."

                               12
                                                                       No.    2011AP1400-D


       Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992), actionable
       via SCR 20:8.4(f).

            [COUNT FIVE] By failing to promptly comply with
       OLR's Investigative District Committee's request for
       his tax returns or an authorization to obtain copies
       of them, [Attorney] Elverman failed to cooperate with
       OLR's investigation, in violation of SCR [22.03(6)],6
       actionable via SCR 20:8.4(h).7
       ¶31       The amended complaint also alleged that on May 30,

2011, Attorney Elverman was arrested as the result of a domestic

violence         incident    that    occurred     at    the    home    of    H.H.,   where

Attorney         Elverman    was    living    with      H.H.    and    her    two    minor

children, who were both home at the time of the incident.                              On

July       7,    2011,   Attorney    Elverman     was    charged      with    disorderly

conduct, a Class B misdemeanor.                   He entered a guilty plea to

that charge on July 15, 2011.

       ¶32       Attorney Elverman failed to report his conviction to

the OLR and the clerk of this court within five days of the

entry       of    judgment   of     conviction.         On    July    26,    2011,   after

learning of Attorney Elverman's disorderly conduct conviction,

the OLR notified Attorney Elverman by first-class mail to his

last known address that the OLR was investigating his criminal

       6
       SCR 22.03(6) provides as follows: "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."
       7
       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); . . . ."

                                             13
                                                                No.    2011AP1400-D



conduct in the disorderly conduct case and Attorney Elverman's

failure to report the conviction, and that his response to the

OLR's investigation was required by August 18, 2011.                     Attorney

Elverman failed to respond to the OLR's letter.

    ¶33        On August 23, 2011, the OLR sent Attorney Elverman a

second letter informing him that failure to timely respond to

its investigation constituted misconduct and giving him until

September       2,   2011,   to   respond.       Attorney    Elverman     finally

responded on September 7, 2011, but the OLR concluded that his

response       failed   to   fully   and    fairly   disclose   all    facts   and

circumstances pertaining to the alleged misconduct.

    ¶34        The   OLR's   amended   complaint      alleged    the    following

counts    of    misconduct    with   respect    to   the    disorderly    conduct

conviction:

         [COUNT SIX] By engaging in conduct resulting in
    his conviction for disorderly conduct in a domestic
    violence situation, [Attorney] Elverman engaged in
    criminal conduct that reflects adversely on his
    fitness as a lawyer in violation of SCR 20:8.4(b).8

         [COUNT SEVEN] By failing to notify OLR and the
    Clerk of the Supreme Court of his conviction for
    disorderly conduct within five (5) days of its entry,
    [Attorney] Elverman violated SCR 21.15,9 enforced via
    SCR 20:8.4(f).

    8
       SCR 20:8.4(b) states it is professional misconduct for a
lawyer to "commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects; . . . ."
    9
         SCR 21.15 provides, in relevant part, as follows:

         (5) An attorney found guilty or convicted of any
    crime on or after July 1, 2002, shall notify in
    writing the office of lawyer regulation and the clerk
                                           14
                                                                 No.   2011AP1400-D


            [COUNT EIGHT] By failing to timely respond to
      OLR's    investigation  in  the   criminal  [disorderly
      conduct] matter within 20 days of receiving notice of
      the investigation, and by failing to fully and fairly
      disclose all facts and circumstances pertaining to it
      when he did respond, [Attorney] Elverman violated
      SCR 22.03(2),10 enforced via SCR 20:8.4(h).
      ¶35    On February 12, 2013, the parties filed a stipulation

whereby Attorney Elverman withdrew his answer to the amended

complaint and pled no contest to all eight counts alleged in the

OLR's amended complaint.           Attorney Elverman and the OLR jointly

recommended     that   the    sanction      in   this   matter    be   a   license

revocation imposed retroactively to February 13, 2009, so as to

run   consecutive      to    the   prior     nine-month    suspension.         The

stipulation says, "The disciplinary conduct at issue in this


      of the Supreme Court within 5 days after the finding
      or conviction, whichever first occurs.    The notice
      shall include the identity of the attorney, the date
      of finding or conviction, the offenses, and the
      jurisdiction.   An attorney's failure to notify the
      office of lawyer regulation and clerk of the supreme
      court of being found guilty or his or her conviction
      is misconduct.
      10
           SCR 22.03(2) states:

           Upon commencing an investigation, the director
      shall notify the respondent of the matter being
      investigated unless in the opinion of the director the
      investigation of the matter requires otherwise.     The
      respondent shall fully and fairly disclose all facts
      and circumstances pertaining to the alleged misconduct
      within 20 days after being served by ordinary mail 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.

                                       15
                                                                        No.    2011AP1400-D



case occurred during roughly the same period of time as the

matters addressed in the prior disciplinary matter, and occurred

prior   to     the    imposition       of      discipline          in    the     previous

disciplinary case."           The parties also jointly recommended that

restitution     be    imposed    "as   ordered       by      the    Milwaukee      County

Criminal Court . . . ."

    ¶36       The   referee    filed   his     report     and      recommendation       on

April 3, 2013.       The referee found that Attorney Elverman engaged

in the eight counts of misconduct alleged in the OLR's amended

complaint.      While both the OLR and Attorney Elverman recommended

license revocation retroactive to February 13, 2009, the referee

found   the    misconduct       serious     enough      to    recommend         that   the

starting date for the revocation be the date this court enters

the order of revocation.          The referee explained:

         In this case, [Attorney] Elverman stole money
    from a client.    His attempts to cover up his thefts
    were well planned and occurred over a significant
    period of time. He deceived two law firms by failing
    to report income and by using fake invoices.       He
    failed to report taxable income.

          Most of the misconduct in this case occurred
    after the misconduct in the previous disciplinary
    case.    . . . While Q&B was investigating [Attorney]
    Elverman's      conduct       in      the       Kastner
    case . . . [Attorney] Elverman was actively involved
    in covering up his conduct in this disciplinary case.

         I realize the Wisconsin Supreme Court customarily
    considers retroactive commencement of the date for
    license revocation if the attorney has not been
    licensed to practice since an earlier date. However,
    given the extreme seriousness and the distinctly
    separate and consecutive misconduct in this case, I do
    not believe [Attorney] Elverman should be given any
    credit for the time since his license suspension of

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       nine months which commenced May 12, 2008, nor do I
       believe [Attorney] Elverman should be given credit for
       the fact that he has not practiced law for an extended
       period of time.
       ¶37   Turning to the issue of restitution, the referee said:

            The pleadings and filings in this case do not
       disclose to me what, if any, restitution was ordered
       by the criminal court upon [Attorney] Elverman's
       convictions.    In any case, the factual agreement
       between the parties shows that [Attorney] Elverman was
       paid at least $604,000 by [D.P.] He should be ordered
       to make restitution of that full amount.
       ¶38   Attorney    Elverman    appeals,          arguing    that    there     are

compelling     reasons    to     retroactively          revoke    his    license     to

practice law so that the revocation runs consecutive to his

prior license suspension.            Attorney Elverman argues that his

license has already remained suspended well beyond the period of

the nine-month suspension previously imposed.                     He notes that he

filed a petition for reinstatement from the nine-month license

suspension before the OLR filed its complaint in this case, but

once   the   complaint     was    filed    he        withdrew    the    reinstatement

petition     pending    resolution   of        all    issues    presented    in    this
matter.

       ¶39   Attorney Elverman says that during the period of his

suspension he has engaged in numerous professional, civic, and

charitable events; he has taught numerous seminars on behalf of

the State Bar of Wisconsin; and he participated on numerous

charitable boards.       He says:

       [I]t is fair to say that becoming an equity partner at
       two major law firms requires not only intellectual
       capacity, but also sound ethical and moral character.
       Many smart and worthy attorneys saw [Attorney]

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    Elverman fit to become one of their partners.     This
    was not a mistake. Moreover, [Attorney] Elverman has
    represented some of the most influential and wealthy
    individuals and families of this State, including CEOs
    of major private and publicly traded companies. This
    did not happen by accident——it resulted from an
    exceptional reputation and character.

         Unfortunately, the time period between 2001-2004
    did not reflect [Attorney] Elverman's true character.
    A retroactive sanction will assure that [Attorney]
    Elverman's second chance will be successful and that
    he will prove once again that he is worthy of being a
    member of the legal profession and is a productive and
    valuable member of society.
    ¶40       Attorney Elverman also argues that there is no factual

basis   for    the    referee    requiring         him    to       pay    restitution     of

$604,000.      He notes that the stipulation he entered into with

the OLR provided that the restitution obligation be as ordered

by the Milwaukee County criminal court.

    ¶41       The    OLR   agrees      with       Attorney         Elverman       that   the

revocation     should      be   made    retroactive           to    the    date    Attorney

Elverman's nine-month license suspension would have ended.                               The

OLR says the facts of this case are similar to those presented

in In re Disciplinary Proceedings Against Cooper, 2013 WI 55,

348 Wis. 2d 266, 833 N.W.2d 88.               In Cooper this court found that

the misconduct at issue in two cases involving the attorney

occurred during roughly the same timeframe.                              Accordingly, the

new license suspension was made retroactive.

    ¶42       With   respect    to     the    issue      of    restitution,        the   OLR

notes that the record before the referee did not disclose the

amount of restitution that was ordered by the criminal court.
The OLR subsequently moved to supplement the record to include a


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copy     of    the      judgment          of     conviction            which       indicates         that

restitution in the amount of $325,000, less payments already

made, was ordered.

       ¶43     A   referee's          findings            of    fact    are     affirmed          unless

clearly erroneously.                 Conclusions of law are reviewed de novo.

See    In     re    Disciplinary           Proceedings               Against       Eisenberg,        2004

WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                                  The court may impose

whatever       sanction        it    sees       fit        regardless         of     the     referee's

recommendation.               See    In    re        Disciplinary           Proceedings        Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶44     With      the    exception             of       the    amount       of      restitution

ordered, there is no showing that any of the referee's findings

of fact are erroneous.                    Accordingly, we adopt them.                          We also

agree    with      the    referee's            conclusions             of    law     that     Attorney

Elverman      violated         all    of       the    supreme         court    rules        set    forth

above.

       ¶45     Revocation of an attorney's license to practice law is

the most severe sanction this court can impose.                                     It is reserved
for the most egregious cases.                         We agree that in this case, no

sanction short of revocation would be sufficient to protect the

public, achieve deterrence, and impress upon Attorney Elverman

the seriousness of his misconduct.

       ¶46     We agree with the referee's recommendation that the

revocation         of     Attorney             Elverman's            license        not      be      made

retroactive.             Although         Attorney          Elverman's         actual        theft    of

D.P.'s      money       may    have       ended       in       2004,    it     appears        that    he
continued to take actions to the detriment of her estate past
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the time that his license to practice law was suspended in 2008.

In addition, both Attorney Elverman and the OLR disregard the

fact that in July of 2011 Attorney Elverman was convicted of

disorderly conduct as the result of a domestic violence incident

that    occurred      in    May    2011.        Attorney     Elverman's        failure        to

timely report that conviction to this court, and his failure to

cooperate with the OLR's investigation into that incident, is

yet another indication of Attorney Elverman's true character.

This    fact      situation     is   readily        distinguishable      from      the       one

presented in Cooper.              The misconduct at issue in this case is

extremely      serious.           Attorney      Elverman     took   advantage           of   an

elderly woman who was suffering from Alzheimer's disease and

stole a large amount of money from her.                      Accordingly, we decline

the     parties'      request        to     make     revocation     of      his     license

retroactive.

       ¶47     Turning to the issue of restitution, it is unfortunate

that the referee was not provided with a copy of the judgment of

conviction, which would have disclosed the amount of restitution
ordered      by     the    circuit        court.       The   record      has      now    been

supplemented to include a copy of the judgment of conviction.

We    find     it   appropriate        to      order   Attorney     Elverman        to       pay

restitution in the amount of $325,000, less payments already

made.        Finally,      we   find      it   appropriate     to   require        Attorney

Elverman to pay the full costs of this proceeding.

       ¶48     IT IS ORDERED that the license of Jeffrey L. Elverman

to practice law in Wisconsin is revoked, effective the date of
this order.
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    ¶49    IT    IS   FURTHER   ORDERED     that   Jeffrey    L.    Elverman      be

required to pay restitution in the amount and under the terms

ordered   by    the   Milwaukee   County    criminal   court       in    State    v.

Elverman, No. 2010-CF-5940.

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

of this order, Jeffrey L. Elverman shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

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

already   done    so,   Jeffrey   L.   Elverman    shall     comply      with    the

provisions of SCR 22.26 concerning the duties of an attorney

whose license to practice law has been revoked.




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