                                                              2014 WI 94

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP1485-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 PROCEEDINGS AGAINST SAYAOVONG

OPINION FILED:          July 30, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2014 WI 94
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2013AP1485-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,
                                                                JUL 30, 2014
      v.
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
Amoun Vang Sayaovong,

            Respondent.




      ATTORNEY     disciplinary     proceeding.           Attorney         publicly

reprimanded.



      ¶1    PER   CURIAM.    On   March 14,       2014,      referee      Daniel L.

Icenogle issued a report recommending that Attorney Amoun Vang

Sayaovong   be    declared   in   default   and       that     he    be    publicly

reprimanded, as requested in the complaint filed by the Office

of Lawyer Regulation (OLR).        The referee also recommended that

Attorney Sayaovong make restitution to one client and that he

either promptly submit a second client matter to binding fee
arbitration or make restitution to that client.                 The OLR filed a
                                                                No.     2013AP1485-D



restitution statement indicating that the second client has died

and asks that restitution be made to that client's heirs.                           The

referee also recommended that Attorney Sayaovong be required to

pay the full costs of this proceeding, which are $371.80 as of

April 1, 2014.

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

agree with the referee that Attorney Sayaovong's professional

misconduct warrants a public reprimand.                We also agree that

Attorney Sayaovong should be ordered to make restitution and pay

the full costs of the proceeding.

     ¶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 St. Paul, Minnesota.               He may also have an

office in Milwaukee, Wisconsin.           On February 19, 2014, Attorney

Sayaovong's license to practice law in Wisconsin was temporarily

suspended due to his willful failure to cooperate in an OLR

investigation concerning his conduct.             That suspension arose out

of the OLR's investigation into allegations of misconduct other
than those at issue in this case.

     ¶4    On July 2, 2013, the OLR filed a complaint against

Attorney   Sayaovong     alleging   seven    counts       of    misconduct      with

respect to his handling of two client matters.

     ¶5    The   first     client   matter        detailed       in     the    OLR's

complaint involved Attorney Sayaovong's representation of Y.Y.

In   January     of    2009,   Y.Y.       asked     the        Social     Security

Administration (SSA) to appoint him as payee for benefits for
his minor children.        On February 9, 2009, Y.Y. paid Attorney
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Sayaovong     a   $2,000    retainer     and     signed      a    fee    agreement    for

Attorney Sayaovong to represent him in his effort to change the

SSA's payee.

      ¶6     On February 13, 2009, the SSA denied Y.Y.'s requests.

The notices from the SSA gave Y.Y. 60 days to appeal.                                 The

notices     identified     Jay    Dess   as     a    contact      person.       Attorney

Sayaovong contacted Dess in March of 2009 and he also had Y.Y.

complete appeal forms.

      ¶7     On April 6, 2009, according to his invoice, Attorney

Sayaovong submitted Y.Y.'s appeal to Jay Dess at the SSA.                              He

did not send a copy of the appeal to Y.Y.                        Attorney Sayaovong's

invoice indicates no further action on Y.Y.'s appeal.

      ¶8     In December of 2009, Y.Y. informed Attorney Sayaovong

that he was terminating his services.                    Y.Y. filed a grievance

against Attorney Sayaovong with the OLR on July 7, 2010.

      ¶9     Between November 2010 and January 2011, the OLR made

several attempts to contact Attorney Sayaovong to investigate

Y.Y.'s grievance.          Other than providing a new address, Attorney
Sayaovong failed to respond to the OLR's communications.

      ¶10    On   March     28,    2011,       this    court       ordered      Attorney

Sayaovong to show cause why his license should not be suspended

for   failure     to   cooperate    with       the    OLR.        Attorney     Sayaovong

failed to respond.           On April 13, 2011, this court suspended

Attorney Sayaovong's license for failure to cooperate with the

OLR's   investigation       of    Y.Y.'s   grievance.             Attorney     Sayaovong

subsequently satisfactorily responded to the OLR in the Y.Y.


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matter, and on July 15, 2011, this court reinstated Attorney

Sayaovong's Wisconsin law license.

       ¶11      On    November      28,   2011,      the    OLR   wrote     to     Attorney

Sayaovong asking for more information and a copy of his Y.Y.

file       by   December 12,        2011.          Attorney     Sayaovong    failed       to

respond.        The OLR sent a follow-up letter on January 10, 2012,

reiterating          its   request    and   giving         Attorney   Sayaovong       until

January 20,          2012,    to     provide        the    information.            Attorney

Sayaovong failed to respond.

       ¶12      On February 29, 2012, based on a motion filed by the

OLR, this court ordered Attorney Sayaovong to show cause why his

license should not be suspended for failure to cooperate with

the    OLR.          Attorney      Sayaovong       filed    a   partial     response      on

March 15, 2012, and on March 22, 2012, the OLR withdrew its

motion.

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

misconduct with respect to Attorney Sayaovong's representation

of Y.Y.:

            [Count 1]   Contacts with Jay Dess of the Social
       Security Administration notwithstanding, by failing
       during the period of representation to advance
       [Y.Y.'s] matter toward formal resolution, Sayaovong
       violated SCR 20:1.3.1

            [Count 2] By failing to timely file his initial
       response to [Y.Y.'s] grievance, and doing so only
       after the Supreme Court issued an order to show cause
       pursuant to SCR 22.03(4) and suspended his law license
       for willful noncooperation with OLR's investigation,

       1
       SCR 20:1.3 provides, "A lawyer shall act with reasonable
diligence and promptness in representing a client."

                                               4
                                                       No.   2013AP1485-D


    Sayaovong violated SCR 22.03(2)2 [and] SCR 22.03(6),3
    enforced via SCR 20:8.4(h).4

         [Count 3]     By failing to provide a complete
    response to OLR's November 28, 2011 request for
    additional information, and providing an incomplete
    and late response received by OLR on March 15, 2012,
    and only after the Supreme Court issued an order to
    show cause why his license should not be suspended for
    willful   noncooperation   with    the  investigation,
    Sayaovong   violated   SCR   22.03(6),  enforced   via
    SCR 20:8.4(h).
    ¶14    The   second   client   matter   detailed   in    the   OLR's

complaint involved Attorney Sayaovong's representation of L.Y.,

who hired Attorney Sayaovong to represent him in his immigration


    2
        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.
    3
       SCR 22.03(6)   provides,   "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."
    4
       SCR 20:8.4(h) provides, "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)."

                                   5
                                                                          No.     2013AP1485-D



removal proceedings in September of 2010.                          L.Y.'s brother paid

Attorney Sayaovong $4,000.               The parties did not sign a written

fee agreement.          The record indicates that Attorney Sayaovong

failed to place the $4,000 in a trust account.

    ¶15    In         November      of         2010,        L.Y.      terminated           the

representation        and   asked       Attorney      Sayaovong      to     give     him   an

accounting of his fees and work and to refund $2,000.                               Attorney

Sayaovong responded on November 3, 2010, saying the $4,000 was a

nonrefundable     flat      fee.        He    failed       to   provide    L.Y.     with   an

accounting.

    ¶16    On February 1, 2011, L.Y. filed a grievance against

Attorney      Sayaovong.           In        the    following       months,        the     OLR

corresponded with Attorney Sayaovong about this grievance.                                  On

February 29, 2012, 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.                                On March 15,

2012, Attorney Sayaovong sent the OLR some information it had

requested along with a copy of the L.Y. file.                               On March 22,
2012,   the     OLR    informed     this           court    that    although        Attorney

Sayaovong had not fully responded to the OLR's questions, the

OLR could continue its investigation.

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

misconduct with respect to Attorney Sayaovong's representation

of L.Y.:

         [Count 4]    By failing to have a written fee
    agreement in the [L.Y.] matter setting forth the basis



                                               6
                                                      No.   2013AP1485-D


    and   rate    for     the      fee,   Sayaovong     violated
    SCR 20:1.16(a)(3).5

         [Count 5]   By receiving $4,000 in contemplation
    of providing future legal services to [L.Y.], and by
    failing to place the $4,000 advanced fee into a trust
    account or otherwise hold the funds in trust until
    earned, and with no evidence of any intention to make
    use   of  the   alternative  advanced  fee  placement
    provisions stated in SCR 20:1.15(b)(4m), Sayaovong
    violated SCR 20:1.15(b)(4).6

         [Count 6]     By failing, upon termination of
    representation, to timely provide [L.Y.] with an
    itemized statement as to legal services rendered and
    costs incurred in connection with [L.Y.'s] immigration
    matter, Sayaovong violated SCR 20:1.16(d).7



    5
       SCR 20:1.16(a)(3) provides, "Except as stated in par. (c),
a lawyer shall not represent a client or, where representation
has commenced, shall withdraw from the representation of a
client if . . . the lawyer is discharged."
    6
        SCR 20:1.15(b)(4) provides:

         Unearned fees and cost advances.       Except as
    provided in par. (4m), unearned fees and advanced
    payments of fees shall be held in trust until earned
    by the lawyer, and withdrawn pursuant to sub. (g).
    Funds advanced by a client or 3rd party for payment of
    costs shall be held in trust until the costs are
    incurred.
    7
        SCR 20:1.16(d) provides:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    to protect a client's interests, such as giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
    been earned or incurred. The lawyer may retain papers
    relating to the client to the extent permitted by
    other law.

                                   7
                                                                   No.    2013AP1485-D


         [Count 7]    By failing to provide a complete
    supplemental response to OLR's December 28, 2011
    letter requesting addition information relating to his
    representation of [L.Y.] in his immigration matter and
    providing his incomplete response in an untimely
    manner and only after the Court issued an order to
    show cause why his license should not be suspended for
    willful   noncooperation   with    the  investigation,
    Sayaovong   violated    SCR 22.03(6),   enforced   via
    SCR 20:8.4(h).
    ¶18       Daniel L. Icenogle was appointed referee in the matter

on September 23, 2013.         On November 27, 2013, the OLR filed a

motion for default judgment.               The motion asked the referee to

determine that the OLR had properly served Attorney Sayaovong by

certified mail under SCR 22.13(1).8              The motion further sought a

determination that Attorney Sayaovong was in default by failing

to timely file an answer to the complaint.                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.

    ¶19       The   referee   issued       a   decision   on    March 14,       2014,

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

judgment.      The motion asked the referee to enter an order for

default   judgment,      including     a   determination       that      all   of   the

    8
        SCR 22.13(1) provides:

         The complaint and the order to answer shall be
    served upon the respondent in the same manner as a
    summons under section 801.11(1) of the statutes. If,
    with reasonable diligence, the respondent cannot be
    served under section 801.11(1)(a) or (b) of the
    statutes, service may be made by sending by certified
    mail an authenticated copy of the complaint and order
    to answer to the most recent address furnished by the
    respondent to the state bar.

                                           8
                                                                           No.     2013AP1485-D



allegations         of    the    complaint            are    deemed     established.          By

recommending        that     this      court      grant       the     motion     for    default

judgment, the referee implicitly incorporated by reference the

allegations in the OLR's complaint and deemed them established.

The referee also recommended that Attorney Sayaovong be publicly

reprimanded; that he be ordered to pay restitution of $2,000 to

L.Y.; that he either promptly submit the Y.Y. matter to binding

fee arbitration or pay restitution of $2,000 to Y.Y.; and that

he be ordered to pay the full costs of this proceeding.

      ¶20     The    OLR    filed       a   restitution         statement        on    April 1,

2014, saying the OLR has learned through communications with a

relative of Y.Y. that Y.Y. died in 2013.                            As a result, the OLR

requests      that       this    court      order       Attorney       Sayaovong       to   make

restitution to Y.Y.'s heirs.

      ¶21     Attorney Sayaovong has not filed an appeal from the

referee's report.

      ¶22     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.

      ¶23     A referee's findings of fact are affirmed unless they

are 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
                                                  9
                                                                No.     2013AP1485-D



referee's recommendation.           See In re Disciplinary Proceedings

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

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

OLR's    complaint     have    been       established     and    that     Attorney

Sayaovong engaged in the seven counts of misconduct alleged in

the complaint.       We further agree that a public reprimand is an

appropriate sanction for Attorney Sayaovong's misconduct, and we

agree    that   he   should   pay   the    full   costs   of    the   proceeding.

Finally, we agree that Attorney Sayaovong should be ordered to

make restitution of $2,000 to Y.Y.'s heirs and should be ordered

to make restitution of $2,000 to L.Y.

       ¶25   IT IS ORDERED that Amoun Vang Sayaovong is publicly

reprimanded.

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

of this order, Amoun Vang Sayaovong shall make restitution of

$2,000 to Y.Y.'s heirs and shall make restitution of $2,000 to

L.Y.

       ¶27   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

$371.80.

       ¶28   IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

       ¶29   IT IS FURTHER ORDERED that the license of Amoun Vang

Sayaovong to practice law in Wisconsin shall remain temporarily
suspended pursuant to this court's February 19, 2014 order.
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    No.   2013AP1485-D




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