                                                             2015 WI 100

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP680-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Amoun Vang Sayaovong, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Amoun Vang Sayaovong,
                                  Respondent.

                            DISCIPLINARY HEARINGS AGAINST SAYAOVONG

OPINION FILED:          November 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                            2015 WI 100
                                                                      NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2015AP680-D


STATE OF WISCONSIN                                :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Amoun Vang Sayaovong, Attorney at Law:

Office of Lawyer Regulation,                                               FILED
            Complainant,
                                                                     NOV 18, 2015
      v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
Amoun Vang Sayaovong,

            Respondent.




      ATTORNEY       disciplinary           proceeding.     Attorney's           license

suspended.



      ¶1    PER     CURIAM.       On   August    3,   2015,      Referee       James     R.

Erickson issued a report recommending that Attorney Amoun Vang

Sayaovong    be     declared      in   default    and     that       his   license       to

practice    law     in    Wisconsin    be   suspended     for    a    period      of   six

months.

      ¶2    We declare Attorney Sayaovong to be in default.                              We

further     agree        with   the    referee   that      Attorney        Sayaovong's
professional misconduct warrants a six-month suspension of his
                                                                           No.    2015AP680-D



license to practice law in Wisconsin.                          In addition, we follow

our usual practice and order Attorney Sayaovong to pay the full

costs of the proceeding, which are $852.43 as of August 20,

2015.

      ¶3        Attorney        Sayaovong    was     admitted      to   practice       law    in

Wisconsin in 2007.               The address he has on file with the State

Bar of Wisconsin is in Saint Paul, Minnesota.                           However, there is

no such address in Saint Paul.                        Attorney Sayaovong has also

listed a Milwaukee address in previous correspondence.

      ¶4        In 2014, Attorney Sayaovong was publicly reprimanded

for   misconduct           in   two   separate       client    matters     consisting         of

failing    to     advance        a    client's      interests,     failing       to    have    a

written    fee     agreement          setting       forth    the   rate    for    his       fee,

failing to hold an advanced fee in trust, failing on termination

of representation to timely provide an itemized statement as to

legal    services          rendered,     and     failing      to   cooperate      with       the

Office     of    Lawyer         Regulation's        (OLR)     investigation.           In     re

Disciplinary          Proceedings         Against       Sayaovong,        2014        WI     94,
357 Wis. 2d 312, 850 N.W.2d 940.                     On February 19, 2014, Attorney

Sayaovong's license to practice law in Wisconsin was temporarily

suspended       for    his      willful     failure     to     cooperate     in       the    OLR

investigation concerning his conduct that underlies the present

proceeding.           In    addition,       Attorney        Sayaovong's    Wisconsin         law

license     is     administratively             suspended       for     failure       to     pay

mandatory bar dues and failure to comply with continuing legal

education requirements.


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                                                                          No.   2015AP680-D



      ¶5    On April 6, 2015, the OLR filed a complaint against

Attorney Sayaovong alleging six counts of misconduct.

      ¶6    The OLR's complaint alleged four counts of misconduct

with respect to Attorney Sayaovong's representation of P.S. and

C.S., who Attorney Sayaovong represented in an accident case

against J.N. in 2009.             In November 2010, a judgment of $6,500

was   entered      against       J.N.        The    judgment        included     $500    in

statutory attorney's fees.                In April 2011, Attorney Sayaovong

started garnishment proceedings in the case.                              In June 2011,

Attorney Sayaovong collected the $500 in statutory attorney's

fees from J.N. through garnishing his wages.

      ¶7    Beginning       in    early      July    2011,    J.N.'s      employer      sent

Attorney Sayaovong garnishment checks every two weeks.                           Attorney

Sayaovong did not notify his clients upon his receipt of the

garnished       funds,   but     he    issued      checks    to    them    periodically.

Attorney Sayaovong did not deposit a garnishment check issued

January 27, 2012, and did not send a corresponding check to his

clients.         Although        the    clients      later        questioned     Attorney
Sayaovong about the missing payment, he never forwarded funds

from that garnishment to them.                In May 2012, the clients stopped

receiving regular payments from Attorney Sayaovong.

      ¶8    By mid-July 2012, J.N. was no longer employed, but he

agreed     to    make    payments       to    Attorney       Sayaovong.          Attorney

Sayaovong did not communicate this information to his clients

until over a month after he made the agreement with J.N.                                 In

September 2012, Attorney Sayaovong sent the clients a check for


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                                                                       No.     2015AP680-D



payments he had received from May through August 2012.                                 The

clients received no further payments from Attorney Sayaovong.

       ¶9        In September 2012, Attorney Sayaovong told the clients

that he was negotiating with J.N. to have him pay the clients

directly.        The clients never received any payments from J.N.

       ¶10       Attorney Sayaovong was frequently unresponsive to the

clients' emails and telephone calls.                     When Attorney Sayaovong

did respond to the clients, he wrote that he was still waiting

for J.N. to provide him with financial information.                              Although

the clients asked Attorney Sayaovong for an accounting of the

funds       he    had   received    for   them        concerning       J.N.,    Attorney

Sayaovong never provided an accounting.

       ¶11       The clients filed a grievance with the OLR in May

2013.       The OLR wrote to Attorney Sayaovong at several addresses

via regular and certified mail, requesting certain information

and a response to the grievance.                 The certified and regular mail

letters were returned.             Attorney Sayaovong never responded.                 In

October 2013, the OLR made multiple attempts to have Attorney
Sayaovong personally served.                 All attempts were unsuccessful.

On November 5, 2013, the OLR emailed Attorney Sayaovong at his

last    known       email   address,      notifying       him     of    the      clients'

grievance and requesting a response.                  Attorney Sayaovong did not

respond.

       ¶12       In December 2013, based on an OLR motion, this court

ordered Attorney Sayaovong to show cause why his license should

not    be    suspended      for    failure       to   cooperate    with        the   OLR's
investigation of the clients' grievance.                  Attorney Sayaovong did
                                             4
                                                  No.   2015AP680-D



not respond, and on February 19, 2014, this court temporarily

suspended Attorney Sayaovong's license.

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

misconduct with respect to Attorney Sayaovong's representation

of P.S. and C.S.:

          [Count One]      By failing to timely pursue
    collection actions against [J.N.], Sayaovong violated
    [Supreme Court Rule (SCR)] 20:1.3.1

          [Count Two] In failing to consistently keep the
    [clients] informed of collection efforts, and failing
    to return numerous phone calls or respond to various
    emails received from the [clients], Sayaovong violated
    SCR 20:1.4(a)(3) and (4).2

          [Count Three]    By failing to consistently and
    promptly notify the [clients] of his receipt of funds
    received for their benefit, or provide them with an
    itemized accounting as to amounts that were collected,
    despite having received numerous requests from his
    clients    that   he   do   so,   Sayaovong   violated
                                  3
    SCR 20:1.15(d)(1) and (d)(2).

    1
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
    2
       SCR 20:1.4(a)(3) and (4) provide, respectively, that a
lawyer shall "keep the client reasonably informed about the
status of the matter" and shall "promptly comply with reasonable
requests by the client for information."
    3
        SCR 20:1.15(d)(1) and (2) provide:

         (1) Notice and disbursement. 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
                                                    (continued)
                                 5
                                                   No.   2015AP680-D


          [Count Four]   In failing to provide to OLR a
    required written response to the [clients'] grievance,
    Sayaovong violated SCR 22.03(2)4 and SCR 22.03(6),5
    enforced via SCR 20:8.4(h).6
    ¶14    The OLR's complaint also alleged two additional counts

of misconduct arising out of Attorney Sayaovong's representation


    funds or other property that the client or 3rd party
    is entitled to receive.

         (2) Accounting. Upon final distribution of any
    trust property or upon request by the client or a 3rd
    party having an ownership interest in the property,
    the lawyer shall promptly render a full written
    accounting regarding the property.
    4
        SCR 22.03(2) provides:

         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.
    5
       SCR 22.03(6) provides that "[i]n 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."
    6
       SCR 20:8.4(h) provides that 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)."


                                 6
                                                                      No.        2015AP680-D



of D&D Auto Services LLC (D&D).                 On September 20, 2013, Attorney

Yeng Kong Lee filed a small claims complaint for his client,

C.L., against D&D.          On October 31, 2013, Attorney Sayaovong's

Wisconsin law license was administratively suspended for failure

to pay mandatory bar dues.              In December 2013, Attorney Sayaovong

contacted     Attorney     Lee    on    behalf    of    D&D.     In    January       2014,

Attorney     Sayaovong     sent    Attorney       Lee   a    draft    stipulation        to

settle the small claims lawsuit.                   After Attorney Lee received

the    stipulation,        he    discovered        that      Attorney       Sayaovong's

Wisconsin law license was suspended and he filed a grievance

with the OLR against Attorney Sayaovong.

      ¶15    The    OLR    wrote       to   Attorney        Sayaovong       at     various

addresses via regular and certified mail, requesting a response

to    Attorney     Lee's    grievance.           The    certified       letters        were

returned, except for one sent to a group office, for which an

unrelated person signed.               Two of the regular mail letters were

also returned.      Attorney Sayaovong did not respond.

      ¶16    The OLR's complaint set forth the following counts of
misconduct with respect to Attorney Sayaovong's dealings with

Attorney Lee:

           [Count Five] By preparing and sending a proposed
      stipulation to opposing counsel while his license to
      practice law in Wisconsin was suspended due to failure
      to   pay  mandatory   bar  dues,   Sayaovong   violated
                   7                        8
      SCR 10.03(6)    and   SCR   22.26(2),    enforced   via
      SCR 20:8.4(f).9


      7
          SCR 10.03(6) provides:

                                                                            (continued)
                                            7
                                                             No.    2015AP680-D


         [Count Six]    By failing to provide a written
    response to OLR in the matter of Attorney Lee's
    grievance, Sayaovong failed to cooperate with OLR's
    investigation, Sayaovong violated SCR 22.03(2) and
    SCR 22.03(6), enforced via SCR 20:8.4(h).
    ¶17    On June 8, 2015, the OLR filed a motion for default

judgment   asking    the   referee   to   determine   that    the     OLR   had

properly   served    Attorney   Sayaovong    by   certified        mail   under

SCR 22.13(1).       The motion further sought a determination that

Attorney Sayaovong was in default by failing to timely file an

answer to the complaint, and the motion sought an order for
default judgment and issuance of a report making findings of

fact and conclusions of law consistent with the allegations in

the complaint.

         If the annual dues or assessments of any member
    remain unpaid 120 days after the payment is due, the
    membership of the member may be suspended in the
    manner provided in the bylaws; and no person whose
    membership is so suspended for nonpayment of dues or
    assessments may practice law during the period of the
    suspension.
    8
        SCR 22.26(2) provides:

         An attorney whose license to practice law is
    suspended or revoked or who is suspended from the
    practice of law may not engage in this state in the
    practice of law or in any law work activity
    customarily done by law students, law clerks, or other
    paralegal personnel, except that the attorney may
    engage in law related work in this state for a
    commercial employer itself not engaged in the practice
    of law.
    9
       SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."


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                                                                                No.    2015AP680-D



      ¶18      The referee issued his decision on August 3, 2015,

recommending that this court grant the OLR's motion for default

judgment.           The    referee      deemed       the     allegations        of     the    OLR's

complaint established.                  The referee recommended that Attorney

Sayaovong's Wisconsin law license be suspended for six months.

Attorney Sayaovong has not filed an appeal from the referee's

report.

      ¶19      We    agree    with       the    referee       that     Attorney        Sayaovong

should    be       declared    in       default.            Although      the    OLR    effected

service of its complaint pursuant to SCR 22.13(1) and although

Attorney Sayaovong was given notice of the hearing on the motion

for default judgment, he failed to appear or present a defense.

Accordingly, we deem it appropriate to declare him in default.

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

clearly erroneous.             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.

      ¶21      We agree with the referee that the allegations in the

OLR's     complaint          have       been    established          and        that     Attorney

Sayaovong engaged in the six counts of misconduct alleged in the

complaint.          We further agree that a six-month suspension of his

license to practice law in Wisconsin is an appropriate sanction

for his misconduct.               Although no two disciplinary matters are
precisely          the    same,     a     six-month          suspension         is      generally
                                                 9
                                                                            No.    2015AP680-D



consistent with the sanction imposed in somewhat similar cases.

See,     e.g.,    In    re     Disciplinary           Proceedings          Against    Woods,

2011 WI 46, 334 Wis. 2d 324, 800 N.W.2d 875; In re Disciplinary

Proceedings       Against      Mauch,       2010       WI     2,     322    Wis.     2d    79,

777 N.W.2d 637.          As        is    our        usual     practice,      we    deem     it

appropriate to order Attorney Sayaovong to pay the full costs of

the proceeding.

       ¶22   IT IS ORDERED that the license of Amoun Vang Sayaovong

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

months, effective the date of this order.

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

of this order, Amoun Vang Sayaovong shall pay to the Office of

Lawyer    Regulation         the    costs      of     this     proceeding,        which    are

$852.43.

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

already done so, Amoun Vang Sayaovong shall comply with the

provisions of SCR 22.26 concerning the duties of an attorney

whose license to practice law has been suspended.
       ¶25   IT    IS   FURTHER          ORDERED       that        compliance      with    all

conditions of this order is required for reinstatement.                                    See

SCR 22.29(4)(c).

       ¶26   IT IS FURTHER ORDERED that the temporary suspension of

Amoun    Vang     Sayaovong's           license      to     practice       law    issued   on

February 19, 2014, is hereby lifted.

       ¶27   IT    IS    FURTHER          ORDERED           that    the     administrative

suspension of Amoun Vang Sayaovong's license to practice law due


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                                                  No.   2015AP680-D



to his failure to pay mandatory bar dues and failure to comply

with continuing legal education requirements remains in effect.




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    No.   2015AP680-D




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