                                                              2015 WI 14

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP818-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against James E. Hammis, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        James E. Hammis,
                                  Respondent-Appellant.



                            DISCIPLINARY PROCEEDINGS AGAINST HAMMIS

OPINION FILED:          February 17, 2015
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 James E.
Hammis and Hammis Law Offices, LLC, Stoughton, and oral argument
by James E. Hammis.




       For the Office of Lawyer Regulation, there was a brief and
oral argument by Robert G. Krohn and Roethe Pope Roethe LLP,
Edgerton.
2
                                                                        2015 WI 14
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2012AP818-D


STATE OF WISCONSIN                            :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against James E. Hammis, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
           Complainant-Respondent,
                                                                FEB 17, 2015
      v.
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
James E. Hammis,

           Respondent-Appellant.




      ATTORNEY      disciplinary     proceeding.          Attorney's        license

suspended.



      ¶1   PER   CURIAM.    Attorney        James    E.    Hammis      appeals       a

report filed by referee James C. Boll Jr. on August 5, 2013,

concluding   that     Attorney     Hammis    committed        nine     counts       of

professional misconduct and recommending that this court suspend

his license to practice law in Wisconsin for a period of four

months, that Attorney Hammis make restitution to a client in the

amount of $995, and that he be required to pay the full costs of
this proceeding, which are $12,022.38 as of December 2, 2014.
                                                                     No.     2012AP818-D



Attorney Hammis asserts that many of the referee's findings of

fact are clearly erroneous.            In the alternative, Attorney Hammis

argues that, even assuming this court finds that he committed

some or all of the counts of misconduct found by the referee, a

public reprimand would be an appropriate level of discipline.

    ¶2        Upon careful review of this matter, we conclude that a

90-day suspension of Attorney Hammis's license to practice law

is an appropriate sanction for his misconduct.                        We agree with

the referee that Attorney Hammis should make restitution to his

former client in the amount of $995, and that he be required to

pay the full costs of this proceeding.

    ¶3        Attorney   Hammis      was       admitted     to    practice      law    in

Wisconsin in 1988.          He most recently practiced in Stoughton but

indicates that his primary occupation now is in the construction

trade.

    ¶4        In 2011 this court suspended Attorney Hammis's license

for four months based on a finding that he had engaged in ten

counts   of    misconduct     with     respect     to     two    different      clients,
practiced law while administratively suspended, and failed to

cooperate      with   the    investigation         of     the    Office    of    Lawyer

Regulation      (OLR).       In   re    Disciplinary            Proceedings      Against

Hammis, 2011 WI 3, 331 Wis. 2d 19, 793 N.W.2d 884.

    ¶5        On April 18, 2012, the OLR filed a complaint alleging

the nine counts of misconduct that underlie this appeal.                              The

complaint alleges that on July 20, 2005, Attorney Hammis was

convicted in the Court of Common Pleas, Tuscarawas County, Ohio
of the crime of reckless endangering, a first degree misdemeanor
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                                                                     No.      2012AP818-D



under Ohio law.         Attorney Hammis did not report his conviction

to the OLR or to the clerk of this court as required by supreme

court rules.      Attorney Hammis was to pay all court costs in the

Ohio criminal matter.             The Tuscarawas County Clerk of Court

prepared    an   itemized       bill    of   costs     and   sent   it   to    Attorney

Hammis on August 24, 2005.                   The itemized bill of costs was

repeatedly mailed to Attorney Hammis—at least 26 times—but Ohio

court records indicated he had not paid the costs, which totaled

$232.16 as of September 13, 2010.

      ¶6    The Ohio criminal matter arose while Attorney Hammis

was   the     president,        operator,        and     sole    member       of    ST&E

Fabrication, LLC (ST&E).              The OLR's complaint alleged that ST&E

was   charged     in    a    separate    companion      criminal    case      in   which

Attorney Hammis pled guilty on behalf of ST&E to two felony

counts of illegal transportation of hazardous waste and illegal

disposal of hazardous waste.

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

misconduct       with       respect     to    Attorney       Hammis's      misdemeanor
conviction:

           [COUNT ONE]   By engaging in the conduct leading
      to his personal misdemeanor conviction of criminal
      endangering in State of Ohio v. James Hammis,
      Tuscarawas County (Ohio) Case No. 2005 CR 06 0181,
      Hammis violated SCR 20:8.4(b).1


      1
       Supreme Court Rule (SCR) 20:8.4(b) provides that 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."


                                             3
                                                              No.   2012AP818-D


            [COUNT TWO] By failing to timely notify OLR and
       the Clerk of the Wisconsin Supreme Court of his 2005
       Ohio criminal conviction, Hammis violated SCR 21.15(5)2
       which is enforced under the Rules of Professional
       Conduct via SCR 20:8.4(f).3

            [COUNT THREE] By failing to pay the court costs,
       as ordered in the judgment in State of Ohio v. James
       Hammis,    Tuscarawas    County   (Ohio)    Case  No.
       2005 CR 06 0181, Hammis violated SCR 20:3.4(c).4
       ¶8     The   other   six   counts   of   misconduct   alleged   in   the

OLR's complaint arose out of Attorney Hammis's representation of

I.B.       On September 7, 2007, I.B. was found guilty of two counts
of homicide by intoxicated use of a vehicle and one count of

causing injury while operating under the influence.                    He was

subsequently sentenced to six years in prison and seven years


       2
           SCR 21.15(5) provides:

            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
       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.
       3
       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."
       4
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."


                                       4
                                                                     No.    2012AP818-D



and six months of extended supervision for each of the homicide

counts, plus an additional year in prison on the causing injury

conviction.

    ¶9    In    May    of   2010,     I.B.         contacted    Attorney       Hammis

regarding legal representation for the purpose of pursuing a

sentence modification.        On May 24, 2010, Attorney Hammis sent

I.B. a letter enclosing a contract for legal services.                            I.B.

signed the contract and returned it to Attorney Hammis.                            The

contract required a $2,000 advance fee.                 The contract expressly

contemplated that at least a portion of the required advanced

fee would be paid by I.B.'s mother, L.B.                       The contract also

provided that at the conclusion of the representation, a refund

of any unearned advanced fee would be made to I.B.

    ¶10   On    June   1,   2010,   in       response    to    Attorney      Hammis's

letter of May 24, I.B. sent Attorney Hammis a cover letter and

copies    of    the    sentencing            transcript        and     pre-sentence

investigation    report.      On    June      9,    2010,   I.B.     paid    Attorney

Hammis $995 from his inmate account.                I.B.'s mother paid another
$400 toward the advanced fee by personal check dated June 26,

2010.

    ¶11   Attorney Hammis did not deposit any portion of the

$1,395 fee payments into his client trust account and instead

deposited the funds into his business account.

    ¶12   Attorney Hammis and I.B. spoke on June 18, 2010, and

discussed an outline of issues and actions that needed to be

taken on the file.     I.B. wrote another letter to Attorney Hammis
on July 14, 2010, in which he mentioned the prior payments,
                                         5
                                                             No.    2012AP818-D



asked why he had not received a plan of action for his case, and

asked to be updated on the financial and legal status.               Attorney

Hammis failed to respond.

     ¶13    On August 6, 2010, I.B. wrote to Attorney Hammis for

the last time, saying he was unable to pay the $2,000 advanced

fee and that he wanted a refund of the $1,395 previously paid.

He   also    asked   that   Attorney       Hammis   return   the   sentencing

transcript    and    pre-sentence   investigation       report.      Attorney

Hammis failed to respond to the letter and failed to return

I.B.'s transcript and pre-sentence report in a timely manner.

     ¶14    On September 14, 2010, L.B. passed away.                 Attorney

Hammis paid $400 from his business account toward L.B.'s funeral

expenses.     The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Hammis's representation of

I.B.:

          [COUNT FOUR]      By initially depositing the
     unearned advance fee payments for [I.B.] in his
     business account rather than holding the fees in his
     client trust account until the fees were earned, and
     then by not providing required notices and accounting
     upon termination of representation, Hammis violated
     SCR 20:1.15(b)(4m)b.1. through 3.5
     5
         SCR 20:1.15(b)(4m)b. provides:

          Upon termination of the representation, the
     lawyer shall deliver to the client in writing all of
     the following:

           1. a final accounting, or an accounting from the
     date of the lawyer's most recent statement to the end
     of the representation, regarding the client's advanced
     fee payment with a refund of any unearned advanced
     fees;
                                                                   (continued)
                                       6
                                                  No.    2012AP818-D


         [COUNT FIVE]     By failing to respond to        his
    client's July 14, 2010 inquiry about what             was
    happening in his case and by failing to provide        an
    action plan to [I.B.] despite stating he would do     so,
    Hammis violated SCR 20:1.4(a)(3) and (4).6

         [COUNT SIX]     By failing to respond to his
    client's letters of July 14 and August 6, 2010,
    concerning the advance fee receipts, a refund, and
    expenses, Hammis violated SCR 20:1.5(b)(3).7

         [COUNT SEVEN] By retaining the entire amount of
    then   [sic]  fee   paid   by   [I.B.]   despite never
    accomplishing the service he had been hired to
    perform, Hammis violated SCR 20:1.5(a).8




         2. notice that, if the client disputes the amount
    of the fee and wants that dispute to be submitted to
    binding arbitration, the client must provide written
    notice of the dispute to the lawyer within 30 days of
    the mailing of the accounting; and

         3. notice that, if the lawyer is unable to
    resolve the dispute to the satisfaction of the client
    within 30 days after receiving notice of the dispute
    from the client, the lawyer shall submit the dispute
    to binding arbitration.
    6
       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 "promptly comply with reasonable
requests by the client for information."
    7
       SCR 20:1.5(b)(3) provides that "[a] lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
    8
        SCR 20:1.5(a) provides:

         A lawyer shall not make an agreement for, charge,
    or collect an unreasonable fee or an unreasonable
    amount for expenses. The factors to be considered in
    determining the reasonableness of a fee include the
    following:

                                                        (continued)
                                  7
                                                 No.   2012AP818-D


     [COUNT EIGHT] By failing to refund the unearned
advance   fee   when   the    client terminated  the
representation and by failing to return the client's
transcripts and pre-sentence investigative report,
Hammis violated SCR 20:1.16(d).9

     [COUNT NINE]    By failing to provide relevant
information, to answer questions fully, or to furnish
documents and by making misrepresentations in response


     (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.
9
    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.


                               8
                                                             No.   2012AP818-D


     to OLR's investigation of the grievance filed against
     him by [I.B.], Hammis violated SCR 22.03(6)10 enforced
     via SCR 20:8.4(h).11
     ¶15    James C. Boll, Jr. was appointed as referee in the

matter.    A hearing was held before the referee on May 14, 2013.

The witnesses at the hearing were Attorney Hammis; Robert Weber,

an OLR investigator; and G.G., L.B.'s mother.

     ¶16    At the start of the hearing, Attorney Hammis objected

to   the   introduction   of   any    evidence      pertaining     to   ST&E's

conviction for illegally transporting and disposing of hazardous
waste.     The referee said he would allow the admission of such

evidence and would give it the appropriate weight.

     ¶17    At the hearing, Attorney Hammis claimed that he had in

fact paid the court costs associated with his Ohio misdemeanor

conviction.     He   claimed   that   the   costs    were   collected    by   a

collection agency.     He had no formal records from the clerk of

court, no cancelled check, and no receipts or satisfaction of

judgment to prove that he actually paid the amount.




     10
       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."
     11
       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)."


                                      9
                                                                   No.    2012AP818-D



     ¶18     Attorney Hammis said he paid $400 to Gunderson Funeral

Home to repay the money L.B. had advanced for her son's case.

I.B. testified in his deposition that he never authorized the

payment    of   the    $400    to   the   funeral    home   but   he     would    have

authorized it if he had been asked to do so.

     ¶19     The referee issued his report on August 5, 2013.                     The

referee found that the OLR had met its burden of proof with

respect    to    all   nine    counts     alleged    in   the   OLR's    complaint.

While the OLR had sought restitution in the amount of $1,395 in

the I.B. matter, the referee noted that I.B. himself testified

he   would      have   approved      Attorney       Hammis's    paying     $400    to

Gunderson Funeral Home if he had been asked.                    The referee said,

"The payment of the money was a good faith effort by Mr. Hammis

to do the right thing and he should not be penalized for such an

act."     Thus, the referee found that Attorney Hammis should make

restitution to I.B. in the amount of $995.

     ¶20     The referee said he was very troubled by the fact that

Attorney Hammis had been previously suspended for ten counts of
misconduct in five different matters, one of which was similar

to the I.B. matter.           The referee also said he was very troubled

by Attorney Hammis's failure to provide any credible evidence to

challenge the OLR's charges, and he said Attorney Hammis has

failed to acknowledge any wrongdoing.                Accordingly, although the

OLR sought a 90-day suspension, the referee recommended a four-

month suspension.

     ¶21     Attorney Hammis stipulated to the misconduct alleged
in Counts One and Two of the OLR's complaint.                     He argues that
                                          10
                                                                       No.   2012AP818-D



the referee erred in finding that the OLR met its burden of

proof on the remaining seven counts.                    He asserts that many of

the referee's findings of fact are clearly erroneous, and he

argues that the level of discipline recommended by the referee

is far too harsh, even assuming all counts of misconduct were

proven.       He argues that Counts Five and Six are multiplicitous.

He    accuses     the    OLR    of   inflating        the    number    of    counts   of

misconduct.         He   asserts     that    the      referee    was    confused,     not

objective, and excessively biased against him.                         He claims that

L.B.'s mother lied at the evidentiary hearing.

       ¶22    The OLR asserts that none of the referee's findings of

fact are clearly erroneous.12

       ¶23    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.

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

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




       12
       The OLR concedes that in determining a violation of Count
Three, the referee inadvertently made a finding of fact that the
count was based upon the referee's review of an exhibit which
refers to a plea agreement in the ST&E case, i.e., Exhibit 1,
when in fact the referee was describing Exhibit 5.


                                            11
                                                                 No.     2012AP818-D



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

Hammis violated all of the supreme court rules set forth above.

      ¶25   With respect to the appropriate level of discipline,

after careful review of the matter, we conclude that a 90-day

suspension is appropriate.                This is not the first time that

Attorney Hammis has been found to have committed professional

misconduct.     Some     of   the    behavior    in    this   case   mirrors    the

misconduct that resulted in his four-month license suspension

back in 2011.     Although Attorney Hammis argues that the referee

was   biased   against    him,      the    referee    found   Attorney    Hammis's

version of events to be incredible.              Credibility determinations

are particularly within the province of the trier of fact, and

we find no basis to second-guess them.

      ¶26   In addition, as an inmate, I.B. was a particularly

vulnerable client.       All of these factors weigh against imposing

a public reprimand.           On the other hand, it is arguable that

there may be some overlap between some of the counts alleged in

the OLR's complaint.           On balance, we conclude that a 90-day
suspension, which was the level of discipline originally sought

by the OLR, rather than the four-month suspension recommended by

the referee, will sufficiently protect the public from similar

misconduct and impose upon Attorney Hammis the gravity of the

misconduct.     We further agree with the referee's recommendation

that Attorney Hammis be ordered to make restitution to I.B. in

the amount of $995 and that he bear the full costs of this

proceeding.


                                          12
                                                                  No.   2012AP818-D



    ¶27     IT IS ORDERED that the license of James E. Hammis to

practice law in Wisconsin is suspended for a period of 90 days,

effective March 19, 2015.

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

of this order, James E. Hammis shall pay restitution in the

amount of $995 to I.B.

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

of this order, James E. Hammis shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

    ¶30     IT   IS   FURTHER   ORDERED     that    restitution         is   to    be

completed     prior   to   paying   costs     to    the     Office      of   Lawyer

Regulation.

    ¶31     IT   IS   FURTHER   ORDERED     that    James    E.    Hammis      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.

    ¶32     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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    No.   2012AP818-D




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