                                                         2018 WI 71

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP1887-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Suzanne E. Kitto, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Suzanne E. Kitto,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST KITTO


OPINION FILED:          June 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2018 WI 71
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2017AP1887-D


STATE OF WISCONSIN                              :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Suzanne E. Kitto, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
           Complainant,
                                                                   JUN 19, 2018
      v.
                                                                      Sheila T. Reiff
                                                                   Clerk of Supreme Court
Suzanne E. Kitto,

           Respondent.




      ATTORNEY     disciplinary        proceeding.          Attorney's           license

suspended.



      ¶1   PER     CURIAM.       We    review    a     referee's        report       and

recommendation      concluding        that    Attorney       Suzanne       E.     Kitto

violated the rules of professional conduct in connection with

her representation of W.C. and C.C.                   The referee recommended

that this court impose a 60-day suspension of Attorney Kitto's

law   license.       We    adopt      the    referee's       findings       of    fact,

conclusions   of    law,   and     recommendation        regarding       discipline.
We impose the full costs in this matter, which total $1,310.32
                                                                            No.       2017AP1887-D



as of April 17, 2018.                We do not impose restitution, as the

Office of Lawyer Regulation (OLR) has confirmed that Attorney

Kitto has made full restitution to W.C. and C.C.

    ¶2        Attorney      Kitto     was       admitted         to     practice         law   in

Wisconsin in 1972.          She has no disciplinary history.

    ¶3        On   September        27,    2017,       the    OLR      filed      a    complaint

against   Attorney         Kitto    alleging          five    counts        of    professional

misconduct arising out of her representation of W.C. and C.C.

Attorney Kitto filed an answer by which she admitted all but one

of the OLR's factual allegations, affirmatively alleged certain

additional facts, and admitted all five counts of misconduct.

This court appointed William Eich to serve as the referee in the

matter.

    ¶4        Attorney      Kitto    later          entered     into    a    stipulation        by

which she agreed that the referee could use the allegations of

the complaint as a factual basis for the referee's determination

of misconduct.          The parties agreed to brief the issue of the

appropriate        level    of   discipline           to   be    imposed         for    Attorney
Kitto's misconduct.

    ¶5        After receiving briefing on the issue of discipline,

the referee filed a report recommending a 60-day suspension of

Attorney Kitto's law license.                   In noting that the parties had

stipulated that the OLR complaint provided an adequate factual

basis   for    a    misconduct       determination,             the    referee        implicitly

incorporated       by   reference         the       undisputed        allegations        in    the

OLR's complaint and deemed them established.                             The facts before
us are, then, as follows.
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    ¶6      Starting in July 2013, Attorney Kitto represented W.C.

and C.C with regard to collection work on a land contract.                        The

other party to the land contract made the land contract payments

to W.C. and C.C. through Attorney Kitto's office.                  W.C. and C.C.

agreed that Attorney Kitto would collect ten percent of the land

contract payments for her fees, and would apply the remainder of

the payments to real estate taxes, the mortgage on the property,

and property insurance.

    ¶7      Attorney Kitto erred in her caretaking of W.C. and

C.C.'s funds.       She failed to hold in trust the land contract

payments that she received on W.C. and C.C.'s behalf.                      She also

converted     approximately       $10,000   of    these    payments         to    her

personal use.

    ¶8      Attorney      Kitto     made    other        trust         fund-related

violations.     She deposited personal funds into her client trust

account, ostensibly for later use in paying her own personal

debts.      Attorney     Kitto   also   disbursed   funds       from     her     trust

account when there were insufficient funds in the account to
cover the disbursement.

    ¶9      Based   on     the    stipulated     facts    set      forth       above,

Attorney Kitto conceded the following five counts of misconduct:

        Count 1:    By failing to promptly deliver funds,
         which   she  collected   in   connection  with   her
         representation of W.C. and C.C., to W.C. and C.C. or
         to third parties for W.C. and C.C.'s benefit,




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         Attorney Kitto violated former    SCR   20:1.15(d)(1)1
         and current SCR 20:1.15(e)(1).2

        Count 2:    By failing to hold in trust W.C. and
         C.C.'s funds that she collected in connection with
         her representation of W.C. and C.C., Attorney Kitto
         violated SCR 20:1.15(b)(1).3



     1
       Former SCR 20:1.15(d)(1), effective prior to July 1, 2016,
provided:

          Upon receiving funds or other property in which a
     client has an interest, or in which the lawyer has
     received notice that a 3rd party has an interest
     identified by a lien, court order, judgment, or
     contract, the lawyer shall promptly notify the client
     or 3rd party in writing.     Except as stated in this
     rule or otherwise permitted by law or by agreement
     with the client, the lawyer shall promptly deliver to
     the client or 3rd party any funds or other property
     that the client or 3rd party is entitled to receive.
     2
         Current SCR 20:1.15(e)(1) provides:

          Upon receiving funds or other property in which a
     client has an interest, or in which a lawyer has
     received notice that a 3rd party has an interest
     identified by a lien, court order, judgment, or
     contract, the lawyer shall promptly notify the client
     or 3rd party in writing. Except as stated in this rule
     or otherwise permitted by law or by agreement with the
     client, the lawyer shall promptly deliver to the
     client or 3rd party any funds or other property that
     the client or 3rd party is entitled to receive.
     3
         SCR 20:1.15(b)(1) provides:

          A lawyer shall hold in trust, separate from the
     lawyer's own property, that property of clients and
     3rd parties that is in the lawyer's possession in
     connection with a representation.        All funds of
     clients and 3rd parties paid to a lawyer or law firm
     in connection with a representation shall be deposited
     in one or more identifiable trust accounts.


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          Count 3: By converting funds belonging to W.C. and
           C.C. for her own personal use, Attorney Kitto
           violated SCR 20:8.4(c).4

          Count 4:      By depositing and retaining funds
           belonging to her in her client trust account,
           Attorney Kitto violated former SCR 20:1.15(b)(3).5

          Count 5: By disbursing funds from her trust account
           without the funds being available for disbursement,
           Attorney Kitto violated SCR 20:1.15(f)(4)(a).6
     ¶10     In its brief on sanctions to the referee, the OLR

argued that a 60-day suspension is called for by certain of our

prior cases.        See, e.g., In re Disciplinary Proceedings Against

Sarbacker, 2017 WI 86, 377 Wis. 2d 484, 901 N.W.2d 373 (lawyer

with two previous private reprimands suspended for 60 days based

on   six     counts        of   misconduct,     including     failing         to    hold

garnishment funds belonging to clients in a trust account and

misappropriating       approximately       $2,000   of    those    funds);         In    re

Disciplinary        Proceedings      Against     Lunde,     2016        WI    84,       372

Wis. 2d 1, 886 N.W.2d 87 (lawyer with previous public reprimand

suspended     for     60    days   based   on   five     counts    of    misconduct,


     4
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
     5
       Former SCR 20:1.15(b)(3), effective prior                  to July 1, 2016,
provided: "No funds belonging to the lawyer or                    law firm, except
funds reasonably sufficient to pay monthly                        account service
charges, may be deposited or retained in a trust                  account."
     6
       SCR 20:1.15(f)(4)(a) provides:    "A lawyer shall not
disburse funds from any trust account unless the deposit from
which those funds will be disbursed has cleared, and the funds
are available for disbursement."


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including failing to hold funds due to a beneficiary of a life

insurance policy in a trust account, and maintaining a trust

account balance that fell below the amount of funds received and

to be held on behalf of the beneficiary); In re Disciplinary

Proceedings     Against   Bartz,   2015    WI   61,    362     Wis. 2d 752,    864

N.W.2d 881 (lawyer with previous private reprimand suspended for

60 days based on five counts of misconduct, including failing to

disburse settlement funds and failing to cooperate with an OLR

investigation).

      ¶11    In her brief to the referee, Attorney Kitto requested

a   public   reprimand.    She   emphasized     that    she    had    experienced

health difficulties during the time period in question, and that

she had relied on her former assistant to ensure that client

funds were being properly handled.

      ¶12    The    referee    recommended      a     60-day     suspension     of

Attorney Kitto's license in his report.               The referee wrote that

other   cases      involving   analogous   misconduct        "have    had   little

trouble imposing a 60-day suspension, often . . . noting that
harsh sanctions should be expected to follow as a warning to

other lawyers that this type of conduct cannot be tolerated."

The referee characterized Attorney Kitto's misconduct as serious

indeed:      W.C. and C.C. were individual clients, and Attorney

Kitto converted a significant sum of their funds——over $10,000.

The referee dismissed as factually unsupported Attorney Kitto's

attempt to assign blame for her trust account-related problems

to her former assistant.         The referee also noted that, according
to the OLR's brief on sanctions, it had taken Attorney Kitto's
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                                                                         No.     2017AP1887-D



medical issues into account in formulating its recommendation

for   a   60-day        suspension;      thus,     the    referee       did     not   assign

additional weight to that factor.                     As mitigating factors, the

referee     noted       that     Attorney     Kitto      has    not     been     previously

disciplined; she has fully reimbursed W.C. and C.C.; and she

cooperated with the OLR's investigation of the charges.                                Given

these facts and the applicable precedent, the referee concluded

that a 60-day suspension would be appropriate.

      ¶13    Neither party appealed the referee's report, so this

matter      is    submitted       to    the   court       for     review       pursuant     to

SCR 22.17(2).        We review a referee's findings of fact subject to

the     clearly     erroneous          standard.         See      In    re     Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,

675 N.W.2d 747.           We review the referee's conclusions of law de

novo.      Id.      We determine the appropriate level of discipline

independent        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.
      ¶14    We agree with the referee that a 60-day suspension is

appropriate.            We find our recent decision in                   Sarbacker, 377

Wis. 2d 484,        to      be     particularly          instructive.                Attorney

Sarbacker's clients hired him to collect on a money judgment

they had obtained against a tenant.                   Id., ¶¶5-6.            After Attorney

Sarbacker arranged for the debtor's wages to be garnished, he

began     receiving       weekly       garnishment       checks    on    behalf       of   his

clients.         Id., ¶6.        He deposited some of the checks, totaling
$892.23, into his trust account, but then disbursed almost all
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of those funds to himself or his law office rather than to his

clients.         Id.,    ¶13.          He       deposited     other       checks,       totaling

$1,273.49,    directly          into       his    operating         account       rather       than

disbursing the funds to his clients.                          Id.     Attorney Sarbacker

committed other misdeeds:                   he represented the clients pursuant

to an unwritten contingent fee agreement; he failed to timely

cooperate with the OLR; and he faced one count of misconduct

based on his plea of no contest to unrelated misdemeanor charges

filed   against         him.         Id.,       ¶14.      Focusing         heavily       on    the

conversion allegations, we imposed a 60-day suspension.                                        Id.,

¶¶23-24.

    ¶15     Sarbacker and this case are alike in important ways.

Both Attorney Kitto and Attorney Sarbacker regularly received

funds on behalf of their clients, and they regularly mishandled

the funds in similar fashion, failing to faithfully hold them in

trust and misappropriating some portion of them.

    ¶16     To    be     sure,       the    two       cases   are    not    exactly       alike.

Attorney    Sarbacker          had    a     disciplinary        history          (two    private
reprimands), whereas Attorney Kitto does not.                               Attorney Kitto

converted    a    significantly             larger       amount      of    funds        than   did

Attorney Sarbacker.            Attorney Sarbacker committed certain forms

of misconduct that Attorney Kitto did not, and vice versa.

    ¶17     In the end, however, we find the misconduct here to be

sufficiently analogous to that in Sarbacker to justify the same

suspension length:             60 days.           This suspension length is also

generally    supported         by     other      cases    cited      by    the    OLR     to   the
referee.     See,        e.g.,       In    re    Disciplinary        Proccedings         Against
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Lunde,   372     Wis. 2d 1;   In    re    Disciplinary      Proceedings    Against

Bartz, 362 Wis. 2d 752.

    ¶18     We also deem it appropriate, as is our usual custom,

to impose the full costs of this disciplinary proceeding on

Attorney Kitto.

    ¶19     Finally,     because         Attorney    Kitto      has     made    full

restitution to W.C. and C.C., the OLR does not seek restitution,

and we do not impose it.

    ¶20     IT    IS   ORDERED     that    Suzanne    E.    Kitto's     license    to

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

effective July 31, 2018.

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

of this order Suzanne E. Kitto shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $1,310.32 as

of April 17, 2018.

    ¶22     IT IS FURTHER ORDERED that, to the extent that she has

not already done so, Suzanne E. Kitto 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.

    ¶23     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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