                                                         2016 WI 45

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2015AP1433-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Matthew S. MacLean, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Matthew S. MacLean,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST MACLEAN

OPINION FILED:          June 3, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                     2016 WI 45
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2015AP1433-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Matthew S. MacLean, Attorney at Law:


Office of Lawyer Regulation,                                      FILED
           Complainant,
                                                              JUN 3, 2016
      v.
                                                                Diane M. Fremgen
                                                             Clerk of Supreme Court
Matthew S. MacLean,

           Respondent.




      ATTORNEY    disciplinary   proceeding.           Attorney's        license

suspended.



      ¶1   PER CURIAM.       We review the report and recommendation

of Referee Richard C. Ninneman that the license of Attorney

Matthew S. MacLean be suspended for two years for professional

misconduct and that Attorney MacLean pay the full costs of this

proceeding, which are $3,573.11 as of January 28, 2016.                        The

referee    also    recommends    that,   during     the     period       of    his
suspension,      Attorney   MacLean   continue    participation          in    the
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Wisconsin       Lawyers       Assistance              Program        (WisLAP)               monitoring

program.

       ¶2     After    careful      review           of    this    matter,        we        adopt    the

referee's findings of fact and conclusions of law.                                           We agree

with    the    referee       that      a    two-year           suspension              of     Attorney

MacLean's license is an appropriate sanction for his misconduct.

We further agree that the full costs of the proceeding should be

assessed against the attorney, and we also agree that Attorney

MacLean      should    be    required       to       continue        participation             in    the

WisLAP monitoring program during the term of his suspension.

       ¶3     Attorney       MacLean       was       admitted        to     practice           law    in

Wisconsin in 1998.           He has no prior disciplinary history.                               He is

not currently practicing law and the State Bar of Wisconsin

lists his license status as "inactive."

       ¶4     On    July    17,   2015,     the           Office     of    Lawyer           Regulation

(OLR) filed a complaint alleging that Attorney MacLean committed

four counts of misconduct.                 The complaint alleged that between

June 1999 and March 2006, Attorney MacLean was employed by the
law    firm    of     Michael,      Best    &        Friedrich,           LLP,     first        as   an

associate and later as a contract partner.                                 In 2006, Attorney

MacLean became the general counsel and chief compliance officer

for the investment firm Red Granite Advisors, LLC (Red Granite).

In    late    2011,    Red    Granite       was           acquired    by     Ziegler           Lotsoff

Capital Management, LLC (Ziegler).                         Red Granite continued as the

wholly owned subsidiary of Ziegler.                          During Attorney MacLean's

employment with Red Granite, he had access to and maintained the
accounts payable records for the company.
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       ¶5     The    complaint         alleged       that       between    March        2006    and

December 2014, Michael, Best & Friedrich sublet office space and

several parking spaces at its Milwaukee location to Red Granite

pursuant to a written sublease agreement.                            The complaint further

alleged that in 2010, BrickStix LLC (BrickStix) was formed to

commercialize        a     product      designed      by    Attorney       MacLean's          minor

son.        The    complaint          further    alleged         that     Attorney         MacLean

drafted the Articles of Organization for BrickStix, which listed

Attorney MacLean, his wife, and another man as the organizing

members.

       ¶6     In January 2011, Attorney MacLean and his wife opened

a    checking       account      at     Park    Bank,       titled        in     the     name    of

BrickStix.         Attorney MacLean wrote out substantially all of the

deposits      to     and    checks       from       the     BrickStix          account.         The

complaint alleged that Attorney MacLean failed to clearly and

consistently         keep       the     finances          and     credit       card        accounts

associated with businesses in which he was involved separate and

distinct from other businesses and from his and his family's
personal finances.

       ¶7     The OLR's complaint further alleged that between March

2006 and September 2013, Attorney MacLean misappropriated more

than $450,000 belonging to Red Granite and/or Ziegler.                                          The

complaint         alleged        that     to        facilitate          and/or         hide     his

misappropriation           of    funds     from      Red        Granite    and/or          Ziegler,

Attorney MacLean obtained a lock box and caused payments due

from Red Granite and/or Ziegler to Michael, Best & Friedrich to
be     directed      to    the    lock     box,       and       he    created        and    caused
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fraudulent        invoices      purporting         to     be    from    Michael,        Best     &

Friedrich     to       be   presented     to     Red     Granite    and     Ziegler.           The

complaint     alleged        that    Attorney       MacLean       caused       checks     to    be

issued by Red Granite or Ziegler payable to Attorney MacLean,

BrickStix, or third parties, but falsely identified the checks

in Red Granite's and Ziegler's accounts payable records as being

payable     to     a    legitimate        vendor,        including      Michael,        Best     &

Friedrich.

      ¶8     The       complaint     alleged       that        Attorney     MacLean      caused

BrickStix to use more than $5,000 of misappropriated funds to

pay   BrickStix's           expenses.       In     the    summer       of   2012,     Attorney

MacLean     approached         Ziegler's       chief       operating        officer,      S.R.,

about      S.R.    purchasing        a    membership           interest      in     BrickStix,

because BrickStix required additional capital, including funds

for production and patent expenses.                      Between July 2012 and March

2013, in furtherance of inducing S.R. to purchase a membership

interest     in     BrickStix,       Attorney          MacLean     provided        S.R.    with

inaccurate         and       misleading        information             about       BrickStix's
financial condition.             Relying on the misleading and inaccurate

information, in March 2013 S.R. wired $50,000 into the BrickStix

account.      The money was intended as the purchase price for an

LLC   of    which       S.R.   was    president,          to    purchase       a   membership

interest in BrickStix.                   The OLR's complaint alleged that if

Attorney MacLean had provided accurate information regarding the

financial condition of BrickStix and Attorney MacLean's actions

related to the BrickStix account, S.R. would not have pursued


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purchasing an interest in BrickStix and would not have caused

the LLC to do so.

       ¶9     The complaint alleged that Attorney MacLean, without

authorization from the appropriate persons associated with Red

Granite, opened a bank account at Guaranty Bank in the name of

Red Granite to help facilitate or hide his misappropriation of

funds.       Between July 2013 and September 2013, Attorney MacLean

caused several checks to be issued from the BrickStix account

payable      to     Red    Granite   and    then     caused    the    checks      to   be

deposited      in    the    dummy    account    at   Guaranty       Bank.        Attorney

MacLean, as the general counsel of BrickStix, did not inform the

managing member, the board of directors, or any other members

that   he    deposited       funds   he    misappropriated      from       Red   Granite

and/or Ziegler into the BrickStix account.                       He also did not

inform the managing member, board of directors, or any other

members of BrickStix that he had used the BrickStix account in

furtherance of his course of conduct to misappropriate funds

from Red Granite and/or Ziegler, nor did he inform the managing
member, board of directors, or any other members of BrickStix

that he used funds he misappropriated from Red Granite for the

benefit of BrickStix.

       ¶10    The    OLR's    complaint     alleged     that    a    company      called

Stifel acquired Ziegler and demanded $458,000 restitution from

Attorney MacLean.            On or about February 2015, Attorney MacLean

and others paid Stifel cash and assigned common stock back to

Stifel in the total amount of $404,750.04.                          Attorney MacLean
withheld over $52,000, claiming entitlement under an April 2014
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severance agreement.    Neither Stifel nor Ziegler was aware of

Attorney MacLean's misappropriations at the time the severance

agreement was signed.

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

misconduct:

    COUNT ONE: By (i) engaging in a course of conduct that
    included misappropriating funds belonging to Red
    Granite and/or Ziegler; and (ii) engaging in a course
    of conduct to hide his misappropriations and related
    wrongful conduct, [Attorney] MacLean violated SCR
    20:8.4(c).1

    COUNT TWO:   By engaging in a course of conduct that
    included using funds misappropriated from Red Granite
    for the benefit of BrickStix, [Attorney] MacLean
    violated SCR 20:8.4(c).

    COUNT THREE:     By engaging in a course of conduct
    intended to induce a third party to purchase an
    interest in BrickStix through the use of misleading
    and   inaccurate   information   regarding   BrickStix's
    financial    condition,   and/or    the    omission   of
    information related to [Attorney] MacLean's deposit of
    funds misappropriated from Red Granite and/or Ziegler
    in the BrickStix Account, [Attorney] MacLean violated
    SCR 20:8.4(c).

    COUNT FOUR:      [Attorney] MacLean acted under a
    concurrent  conflict   of  interest   by  representing
    BrickStix as its General Counsel while at the same
    time engaging in a course of conduct that included:
    (i) failing to keep BrickStix's finances separate from
    his personal finances and the finances of Red Granite,
    thereby causing confusion in the handling of credit
    card accounts and payments from the BrickStix Account;
    (ii) causing funds [Attorney] MacLean misappropriated
    from Red Granite and/or Ziegler to be deposited in the

    1
       SCR 20:8.4(c) provides:    "It is professional misconduct
for a lawyer to . . . . engage in conduct involving dishonesty,
fraud, deceit or misrepresentation."


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                                                                     No.   2015AP1433-D


       BrickStix Account; (iii) using the BrickStix Account
       as part of his course of conduct intended to
       misappropriate funds from Red Granite and/or Ziegler;
       and/or (iv) using funds misappropriated from Red
       Granite for the benefit of BrickStix, and all without
       notifying the Managing Member, the Board of Directors,
       or the other Members of BrickStix, thereby violating
       SCR 20:1.7(a)(2).2
       ¶12       On October 1, 2015, the parties signed a stipulation

whereby Attorney MacLean entered a plea of no contest to the

misconduct counts alleged in the complaint.                    The parties agreed

that       the   facts   stated   in   the       complaint   could   be    used   as   a


       2
           SCR 20:1.7(a)(2) provides:

            (a) Except as provided in par. (b), a lawyer
       shall not represent a client if the representation
       involves a concurrent conflict of interest.       A
       concurrent conflict of interest exists if . . . .

            (2) there is a significant risk that the
       representation of one or more clients will be
       materially limited by . . . a personal interest of the
       lawyer.

            (b) Notwithstanding the existence of a concurrent
       conflict of interest under par. (a), a lawyer may
       represent a client if:

            (1) the lawyer reasonably believes that the
       lawyer will be able to provide competent and diligent
       representation to each affected client;

                 (2) the representation is not prohibited by law;

            (3) the representation does not involve the
       assertion of a claim by one client against another
       client   represented  by   the  lawyer   in  the   same
       litigation or other proceeding before a tribunal; and

            (4) each affected client gives informed consent,
       confirmed in a writing signed by the client.


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factual     basis       by        the    referee         to     make     a    determination      of

misconduct.        The parties agreed that Attorney MacLean could make

arguments       and     produce         mitigating            factors    and    other    evidence

regarding sanctions.

      ¶13   As part of the stipulation, Attorney MacLean asserted

a number of mitigating factors, including that he voluntarily

withdrew from the practice of law in May 2014, upon reporting

his     conduct        to     the       OLR,     and       he    declined       an     employment

opportunity       at    a     law       firm    to       address       his   situation    and    to

prevent the law firm from being associated with his conduct.

Attorney MacLean averred that he sought assistance from WisLAP,

which     led     to        his    being        diagnosed         with       bipolar    disorder.

According to his treating psychiatrist and treating therapist,

Attorney MacLean's conduct at issue in this matter is the result

of his bipolar disorder.                     Attorney MacLean says he changed his

State Bar of Wisconsin membership to inactive status effective

October     31,       2014.             He   says        he     has     cooperated      with    the

investigations of his conduct by the OLR and others; he has
expressed remorse, regret, and concern for the victims of his

conduct;     and       he     has        used    family         resources       to     make    full

restitution and also used family funds to repay the aborted

investment in his company.

      ¶14   The hearing before the referee was held on December

10, 2015.       Attorney MacLean was the only witness to testify.                                At

the     hearing,       the        OLR    reduced         the     requested       sanction      from

revocation to a three-year suspension.                                Attorney MacLean sought
a shorter suspension or asked that the suspension commence at
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the time he self-reported his conduct to the OLR and ceased

practicing law in May 2014.                 Based on the parties' stipulation,

the referee found that the OLR had met its burden of proving by

clear,     satisfactory,        and     convincing           evidence      that     Attorney

MacLean committed the four counts of misconduct set forth in the

OLR's    complaint.            The     referee         recommended         that     Attorney

MacLean's license to practice law in Wisconsin be suspended for

two years, commencing with the date of this court's order.

    ¶15       The referee pointed out that Attorney MacLean has not

practiced law since he self-reported his misconduct in May of

2014.    The referee noted that following a two-year suspension,

there    will      be   an    additional       passage        of    time      during    which

Attorney MacLean will have to petition for reinstatement, have a

hearing before a referee, and ultimately have this court act on

the petition.           The referee said when all is said and done,

Attorney MacLean will probably have been out of the practice of

law for nearly five years.              The referee said that period of time

will satisfy the OLR's concerns of impressing Attorney MacLean
with the seriousness of his misconduct and ensuring that he

continues     to    cooperate        with   WisLAP      in    the       treatment      of   his

bipolar disorder.            The referee also recommends that, during the

period   of       Attorney    MacLean's       suspension,          he    be      required   to

continue    participation        in     the       WisLAP     monitoring          program    and

submit     periodic      reports       to     the      OLR    as    to     his     continued

cooperation with his treatment recommendations.

    ¶16       A    referee's     findings         of   fact     are      affirmed      unless
clearly erroneous.            Conclusions of law are reviewed de novo.
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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.

       ¶17    There is no showing that any of the referee's findings

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

also agree with the referee's conclusions of law that Attorney

MacLean violated the supreme court rules enumerated above.

       ¶18    Upon careful review of the matter, we agree with the

referee's recommendation for a two-year suspension of Attorney

MacLean's         license    to     practice         law     in     Wisconsin.         Attorney

MacLean's     misconduct          was    serious       and       warrants    a     significant

penalty.          However, Attorney MacLean did present a number of

mitigating factors, including the fact that he self-reported his

conduct      to    the   OLR,      he     sought      assistance       from        WisLAP     and

voluntarily submitted to WisLAP for monitoring of his treatment

for     bipolar      disorder,          he    made        full    restitution,          and    he
cooperated with the investigation into his conduct.                                The referee

commented that from the referee's observation at the hearing,

Attorney MacLean "clearly appeared to be remorseful, regretful

and concerned for the victims of his misconduct."                                 In addition,

Attorney MacLean's lack of previous disciplinary history also

warrants some consideration.

       ¶19    We agree with the referee that a two-year suspension

is    an   appropriate       sanction         and    is    generally       consistent         with
prior      disciplinary           decisions.              For     example,        in     In     re
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Disciplinary        Proceedings          Against     Dahle,     2015        WI     29,       361

Wis. 2d 430,       862       N.W.2d 582,      an    attorney     with        no       previous

disciplinary history was suspended for two years and six months

for multiple counts of misconduct, including violations of SCR

20:8.4(c).        Attorney Dahle was found to have misappropriated

over     $400,000       in    client      funds.       In     addition,          in    In     re

Disciplinary        Proceedings          Against    Ramthun,     2015        WI       94,    365

Wis. 2d 7, 869 N.W.2d 775, an attorney was suspended for two

years     and     six    months      for    multiple        counts     of     misconduct,

including       four    counts      of    violating    SCR     20:8.4(c).             Attorney

Ramthun had no prior disciplinary history other than a brief

temporary suspension for failure to cooperate with the OLR's

investigation       into      two    of    the     matters    giving        rise       to    the

proceeding that resulted in the two-and-a-half-year suspension.

       ¶20    Finally, we agree with the referee that, during the

term of his suspension, Attorney MacLean should be required to

continue monitoring with WisLAP and should be required to submit

periodic reports to the OLR showing his continued cooperation
with    his     monitoring     and     treatment     recommendations.                 We    also

agree that Attorney MacLean should be required to pay the full

costs of this proceeding.

       ¶21    IT IS ORDERED that the license of Matthew S. MacLean

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

years, effective the date of this order.

       ¶22    IT IS FURTHER ORDERED that during the period of his

suspension, Matthew S. MacLean shall continue participation in
the     Wisconsin       Lawyers      Assistance      Program     and        shall       submit
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quarterly reports to the Office of Lawyer Regulation showing his

continued        cooperation        with        monitoring      and       treatment

recommendations of WisLAP.

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

of this order, Matthew S. MacLean shall pay to the Office of

Lawyer    Regulation      the   costs      of   this    proceeding,      which   are

$3,573.11.       If the costs are not paid within the time specified,

and absent a showing to this court of his inability to pay the

costs within that time, the license of Matthew S. MacLean to

practice law in Wisconsin shall remain suspended until further

order of the court.

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

already   done     so,    Matthew   S.     MacLean      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.

    ¶25     IT     IS    FURTHER    ORDERED      that     compliance     with    all

conditions of this order is required for reinstatement.                     See SCR

22.28(3).




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