                                                         2019 WI 86

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2017AP1882-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Cole J. White, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Cole J. White,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST WHITE

OPINION FILED:          August 23, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                   2019 WI 86
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.   2017AP1882-D


STATE OF WISCONSIN                       :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Cole J. White, Attorney at Law:

Office of Lawyer Regulation,                                    FILED
           Complainant,                                    AUG 23, 2019
      v.                                                      Sheila T. Reiff
                                                           Clerk of Supreme Court
Cole J. White,

           Respondent.




      ATTORNEY   disciplinary    proceeding.        Attorney's         license
suspended.


      ¶1   PER   CURIAM.   We   review   a     supplemental         referee's
report and recommendation concluding that Attorney Cole J. White
committed 27 counts of professional misconduct in his handling
of four client matters.    The referee recommended that this court

impose a 15-month suspension of Attorney White's law license.
We adopt the referee's findings of fact, conclusions of law, and
recommendation regarding discipline.         We also agree with the
referee's recommendation that Attorney White be required to make
restitution to two clients.     Finally, we impose the full costs
                                                                      No.     2017AP1882-D



of this proceeding, which total $17,105.44 as of January 23,
2019, on Attorney White.
      ¶2        Attorney        White   was      admitted    to    practice      law    in
Wisconsin in 2013 and practices in Green Bay.                        He has no prior
disciplinary history.
      ¶3        On September 26, 2017, the Office of Lawyer Regulation
(OLR)    filed        a   complaint     against     Attorney      White     alleging    28
counts     of    professional       misconduct.           Attorney    White    filed     an
answer on November 24, 2017.                  James R. Erickson was appointed
referee on December 12, 2017.
      ¶4        An evidentiary hearing was held on September 12, 2018.
Attorney White chose not to appear in person at the hearing.

His counsel, Attorney Jevon J. Jaconi, appeared on his behalf.
Pursuant to an agreement between Attorney Jaconi and counsel for
the   OLR,      with      the    approval     of   the    referee,    the     deposition
transcript of Attorney White, including exhibits, was offered
and   received into evidence.                 Two    of Attorney White's             former
clients testified in person at the hearing, and two testified

telephonically.            Testimony was also taken from other witnesses,
both in person and telephonically.
      ¶5        The       referee       issued      his     initial         report     and
recommendation on January 3, 2019.                  On April 9, 2019, this court
remanded the matter to the referee for further proceedings.                            The
referee issued a supplemental report on June 10, 2019.
      ¶6        In his supplemental report, the referee noted that the
parties agreed to dismiss one of the counts in the complaint.
The referee further noted that Attorney White stipulated to 17
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counts in the complaint.             The referee found that the OLR had met
its burden of proof with respect to the 10 remaining disputed
counts.
       ¶7        The OLR's complaint alleged eight counts of misconduct
with   respect to Attorney White's                 representation of          S.E.        In
September         2012,   the    Neenah    Police     Department       and    the     Lake
Winnebago Area Metropolitan Enforcement Group conducted a raid
of   S.E.'s       business      pursuant    to    a   "no-knock"     search        warrant
issued      by    Winnebago     County     Circuit    Court    Judge    Scott       Woldt,
based upon suspicious illegal drug activities.                     S.E. was charged
with several felonies following the raid.                     In December 2013, he
pled no contest to a signal misdemeanor possession charge.                               All

other charges were dropped.
       ¶8        During   the criminal      proceeding against          S.E.,      S.E.'s
attorney brought a motion to suppress evidence on the basis that
the warrant was not valid because Judge Woldt was not "neutral
and detached" and should have disqualified himself from issuing
the warrant.         The motion was denied.

       ¶9        In June of 2014, S.E. hired Attorney White to file a
federal     civil rights lawsuit            against     the   City     of    Neenah and
others as a result of the raid.                   Attorney White provided S.E.
with a fee agreement charging a flat fee of $4,500 plus a 30
percent      contingent       fee   on    any    settlement.       S.E.      was    to    be
responsible for any costs.                 The fee agreement did not state
Attorney White's intention to use the alterative fee placement
measures allowed under former SCR 20:1.15(b)(4m).                            S.E. paid


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                                                                    No.     2017AP1882-D



Attorney White the $4,500 flat fee in installments.                           Attorney
White did not place any of the money in his trust account.
     ¶10    On December 2, 2014, Attorney White filed a lawsuit in
United     States   District       Court       for     the   Eastern      District    of
Wisconsin.      The plaintiffs included S.E. and his business, as
well as adjoining business owners.                   The defendants included the
City of Neenah, the Neenah Police Department, Judge Woldt, the
Neenah Police Chief, a captain of the Neenah Police Department,
and Winnebago County.         Attorney White's complaint against Judge
Woldt was based on the judge's signing of the search warrant,
which the plaintiffs asserted was "overly broad and invalid."
The complaint also alleged the judge was not neutral because of

a prior dispute between him and S.E.
     ¶11    Judge    Woldt     was    represented            in   the     lawsuit     by
Assistant Attorney General David C. Rice.                    On December 9, 2014,
AAG Rice filed a motion to dismiss on numerous grounds including
judicial immunity, Eleventh Amendment immunity, failure to state
a claim upon which relief can be granted, issue preclusion, and

lack of jurisdiction.             Attorney White did not respond to the
motion to dismiss, and the court granted it on February 5, 2015.
Attorney White told the OLR he did not respond to the motion
because    he   believed     it    would       be     granted.      Attorney      White
admitted to the OLR that the complaint he filed was "bloviated
and histrionic," but he said he filed it anyway because it was
what his client wanted "in terms of sending a message."
     ¶12    Attorney White failed to respond to requests that he
provide     dates   that   his      clients          would   be   available     for    a
                                           4
                                                                     No.   2017AP1882-D



deposition.       He also failed to respond to interrogatories and
requests for production of documents.
     ¶13    S.E. periodically contacted Attorney White to find out
the status of the case.               Attorney White would respond by saying
that everything was taken care of, things were going well, and
he hoped to set up a settlement conference.                      On November 13,
2015,   counsel    for     the    City    of   Neenah    and   the    Neenah      Police
Department filed a motion to dismiss based on the plaintiffs'
failure    to   prosecute        the   action.      Attorney     White      failed     to
provide his clients with a copy of the motion to dismiss.                              On
November    30,    2015,    Attorney       White    responded        to    the    motion
claiming he had moved his office and did not receive deposition

notices until the day after they were scheduled to take place
because    the defendants         had mailed       the   notices to his           former
office address.      Attorney White also claimed he had notified the
defendants of his new office address in June 2015 and that the
plaintiffs had all the evidence they needed to proceed to trial.
Attorney White did not copy his clients with his response to the

motion to dismiss.          After filing the response, Attorney White
mentioned the motion to dismiss in a text message he sent to
S.E. that included the statement "we filed a response calling
out their game."
     ¶14    On December 1, 2015, counsel for Winnebago County also
filed a motion to dismiss due to the plaintiffs' failure to
state a claim against the County and the plaintiffs' failure to
prosecute   the    case.         On    December    14,   2015,   counsel         for   the
Neenah Police Department and the City of Neenah filed a reply to
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                                                                    No.       2017AP1882-D



Attorney White's response to their motion to dismiss alleging
that the response contained flagrant misrepresentations.
      ¶15   On January 2, 2016, Attorney White filed a response to
Winnebago County's motion to dismiss that was identical to his
response to the City of Neenah's and Neenah Police Department's
motion.      Attorney White included no supporting affidavits or
memorandum, and he did not copy his clients on his response.
      ¶16   On    January   20,     2016,      the    court   issued          a    decision
granting    the    remaining      defendants'         motions      to     dismiss          and
ordering Attorney White to personally pay a sanction of $1,500
to the defendants.        Attorney White failed to inform S.E. and the
other plaintiffs of the dismissal order.                 S.E. learned about the

dismissal when reporters asked him for comment.
      ¶17   On    January   26,     2016,      S.E.   wrote   to    Attorney             White
directing    him    to   file     an    appeal.        Attorney         White       falsely
informed S.E. that he "never received a goddamned email from
them about dates" and that the defendants had filed a motion to
dismiss because Attorney White did not timely receive notice of

the   deposition.        Attorney      White    agreed   to     file      a       notice    of
appeal and said the judge's decision was "filled with so many
lies,     misstatements     and     misconstructions          it    verges          on     the
absurd."
      ¶18   S.E. subsequently hired new counsel.                   On February 17,
2016, S.E.'s new counsel filed a motion to alter or amend the
judgment dismissing the case.               The motion was denied, with the
court commenting that "the merits of the complaint, which had
named a judge, were not particularly strong."
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                                                                         No.        2017AP1882-D



       ¶19   In April 2016, S.E. filed a grievance against Attorney
White    with      the    OLR.         In   Attorney    White's        response        to    the
grievance, he falsely said that he had had several conversations
with    S.E. about the           depositions and that               S.E. had expressed
exasperation       and    annoyance         about   having     to      answer       questions.
Attorney     White       also    falsely      stated    that      he    had    a     telephone
conversation with counsel for the defendants telling them the
location of the depositions was problematic.                              Attorney White
also falsely told the OLR that he had informed the defendants'
counsel of his new address in a telephone call.
       ¶20   Attorney          White   also      provided    an     email      to    the    OLR,
purportedly written on September 14, 2015, in which he requested

a   call     to    discuss       scheduling       depositions.           The        email    was
fabricated.
       ¶21   Attorney White has not paid the $1,500 in costs and
attorney's        fees    as    ordered     in    the   court's        January       20,    2016
decision.
       ¶22   The OLR's complaint alleged the following counts of

misconduct with respect to Attorney White's representation of
S.E.:




                                              7
                                                No.   2017AP1882-D


    Count 1:   By failing to hold the advanced fees that
    S.E. paid to him in trust, Attorney White violated
    former SCR 20:1.15(b)(4).1

    Count 2: By naming Judge Woldt as a defendant despite
    his immunity as a judge from civil suits for his
    judicial acts and the existence of multiple other
    grounds precluding a civil action against Judge Woldt,
    Attorney White violated SCR 20:3.1(a)(1).2

    Count 3:    By failing to respond to requests from
    opposing counsel and by failing to otherwise take
    action to prosecute his clients' case, Attorney White
    violated SCR 20:1.3.3




    1  Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."    See S.
Ct. Order 14-07, 2016 WI 21 (issued Apr. 4, 2016, eff. July 1,
2016). Because the conduct underlying this case arose prior to
July 1, 2016, unless otherwise indicated, all references to the
supreme court rules will be to those in effect prior to July 1,
2016.

    Former SCR 20:1.15(b)(4) provided:

    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.
    2  SCR 20:3.1(a)(1) provides: "In representing a client, a
lawyer shall not knowingly advance a claim or defense that is
unwarranted under existing law, except that the lawyer may
advance such claim or defense if it can be supported by good
faith argument for an extension, modification or reversal of
existing law."
    3  SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."


                               8
                                                 No.   2017AP1882-D


    Count 4:    By failing to respond to the defendants'
    discovery    requests,   Attorney   White   violated
    SCR 20:3.4(d). 4


    Count 5:    By failing to inform S.E. and the other
    plaintiffs of the defendants' discovery requests,
    including interrogatories and deposition notices and
    by failing to inform them of the dismissal of the
    lawsuit, Attorney White violated SCR 20:1.4(a)(3).5

    Count 6:   In the course of the federal lawsuit filed
    on behalf of S.E., by making false statements in
    documents filed with the court, Attorney White
    violated SCR 20:3.3(a)(1).6

    Count 7:    By making false statements to his client
    about the status of the case and the conduct of the
    opposing     parties,   Attorney    White    violated
    SCR 20:8.4(c).7

    Count 8: In the course of the OLR's investigation, by
    fabricating an email in an effort to show that he had
    responded to opposing counsel's request to schedule
    depositions and inform them of his new office address,
    by falsely asserting that he and/or his intern had
    telephone conversations with opposing counsel, and
    telling the OLR "the court records were updated" in
    response to the OLR's request for evidence that he had
    informed opposing counsel of his new address, and that

    4  SCR 20:3.4(d) provides: "A lawyer shall not in pretrial
procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party."
    5  SCR 20:1.4(a)(3) provides:     "A lawyer shall keep     the
client reasonably informed about the status of the matter."
    6  SCR 20:3.3(a)(1) provides:   "A lawyer shall not make a
false statement of fact or law to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer."
    7  SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                               9
                                                                      No.      2017AP1882-D


      he had several conversations with his clients about
      scheduling   depositions,  Attorney   White    violated
                   8
      SCR 22.03(6), enforceable via SCR 20:8.4(h). 9


      ¶23   The        second      client     matter    detailed        in    the   OLR's
complaint involved Attorney White's representation of R.R., who
hired Attorney White to represent him in modifying a custody and
placement order that granted R.R.'s ex-wife sole custody and
granted R.R. supervised visits and telephone contact with his
daughter.         At     the    time     he    undertook       this   representation,
Attorney    White       had     little   or    no    experience       in     custody   and
placement cases.
      ¶24   On September 23, 2014, Attorney White provided R.R.
with a written agreement to represent him "in connection with
the   alteration        of     custody   and       placement    order      currently    in
effect with K.K.," which would "include counseling, advocacy and
representation         in    all    hearings,       motions,    mediations       and   any
other     proceedings         arising    in    or     related    to     this     action."
Attorney White charged R.R. a flat fee of $11,000 and described
the fee as being non-refundable.                      The fee agreement did not



      8SCR  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."
      9SCR 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)."


                                              10
                                                                       No.     2017AP1882-D



state    Attorney    White's     intention          to    use   the    alterative       fee
placement     measures       allowed       under    former      SCR   20:1.15(b)(4m).
R.R.'s mother and step-father paid the $11,000 advanced fee to
Attorney White.         Attorney White did not place the money in his
trust account.
       ¶25   On June 26, 2015, Attorney White filed a three-page
standard "fill in the blank" motion to modify form available on
the     court's   website.           The     motion       requested     that     physical
placement of R.R.'s daughter be modified from primary placement
to shared placement and legal custody be modified to joint legal
custody.     The factual basis alleged in support of the motion was
that the mother regularly withheld visitation and contact and

had made baseless criminal allegations against Attorney White's
client.
       ¶26   A motion hearing was held before a court commissioner
on    September   23,    2015.         The    court       commissioner        denied    the
motions since no substantial change had been alleged since the
September      26,      2013     custody           and     placement         order;     the

psychological issues that served as the basis for supervised
visitation     had     not    been    addressed;          and   the   allegations       of
interference with visitation were more properly the subject of
an enforcement motion.
       ¶27   Despite     R.R.        providing           Attorney     White      with    a
substantial amount of documentation about the placement case,
including police reports, court records, and other documents,
Attorney White did not provide any of those documents to the
court commissioner.
                                             11
                                                                      No.    2017AP1882-D



       ¶28   Attorney White claimed that after the September 2015
hearing he informed R.R. he would pursue a new application to
the court to modify placement, but that R.R. never provided the
necessary    information.          As    a result,       Attorney     White      said    he
considered the case closed.              Attorney White had no documentation
that he ever explained to R.R. the outcome of the motion, that
he   requested     additional      information        from    R.R.    to    pursue      the
matter, or that he considered the matter closed.                       Attorney White
provided     no    documentation        that    he   earned    the    entire     $11,000
advanced fee.
       ¶29   Attorney White subsequently led R.R. to believe that
the custody matter was ongoing and advised R.R. to claim a Texas

residence     in     order    to    establish        a    substantial        change      in
circumstances.
       ¶30   On September 23, 2015, R.R. hired Attorney White to
pursue a second matter, a defamation claim against his ex-wife
alleging she falsely accused him of molesting their daughter.
Attorney     White    provided     R.R.        a   second     fee    agreement     which

provided for a flat fee of $5,000 that was described as non-
refundable.        The agreement acknowledged receipt of an initial
$200   payment      and   called    for    additional        payments       of   $300    on
September 24 and $4,500 by October 9.                    The second fee agreement
did not state Attorney White's intention to use the alterative
fee placement measures allowed under former SCR 20:1.15(b)(4m).
       ¶31   R.R. paid Attorney White a total of $2,700 toward the
defamation action.           Attorney White did not place the funds in
his trust account.
                                           12
                                                                            No.     2017AP1882-D



       ¶32    In     January      2016,      R.R.    sent       Attorney      White    a    text
message      inquiring about the status                    of both      cases.        Attorney
White    offered      to     meet    R.R.     on     January      15,       2016,    and    R.R.
confirmed the meeting with a text message to Attorney White on
January 15.          When R.R., along with his mother and step-father,
arrived for the meeting, Attorney White was leaving and claimed
the meeting had not been confirmed.                          At the January 15, 2016
meeting,      R.R.    provided       Attorney        White      with    a    Texas    address.
Attorney White maintained the custody case was ongoing and he
had scheduled 19 court dates but had to cancel them because R.R.
was unavailable.
       ¶33    On   March     1,     2016,     after       not    hearing      from    Attorney

White, R.R. sent Attorney White a text message asking about a
court date in the custody matter.                          R.R. asked that Attorney
White return the remaining funds paid to him in the defamation
case.    Attorney White failed to respond.
       ¶34    On   April     27,    2016,         R.R.    filed    a   grievance       against
Attorney      White    with       the   OLR.         In    response,        Attorney       White

acknowledged a refund was due in the defamation case.                                  He said
he had not provided R.R. with a refund because R.R. had not
clarified      that     he     wanted        to     terminate      the      representation,
despite Attorney White's repeated efforts to reach him over the
past    10   weeks.        Attorney       White      had    no    documentation        of    any
attempts to contact R.R.
       ¶35    On June 5, 2016, Attorney White sent R.R. a letter
accounting for         the fees         in   the defamation action.                   Attorney
White charged R.R. for 12.5 hours of legal work, for a total of
                                              13
                                                            No.    2017AP1882-D



$3,125.        Although the accounting exceeded the advanced fees,
Attorney White refunded R.R. $270.
     ¶36       As to the reasonableness of the $11,000 advanced fee
in the custody case, Attorney White acknowledged the "fee was
higher than necessary."          However, Attorney White told the OLR
that the fee was reasonable based upon his research in Nolo
guides and on Google, as well as his expectation that there
would     be   weekly   calls   and   meetings   and   a   large    amount   of
documents to review.
     ¶37       R.R. says he visited Attorney White's office at least
ten times and left repeated phone messages asking that Attorney
White return his file.          While Attorney White claims he returned

the file to R.R. on June 5, 2016, R.R. denies receiving it.
     ¶38       The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
R.R.:

     Count 9: By charging R.R. $11,000 to represent him in
     bringing a standard motion to modify a custody order
     when Attorney White had no experience handling such
     matters, performed little work, and achieved no
     results, Attorney White violated SCR 20:1.5(a).10

     10   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:

          (1) the time and labor required, the novelty and
     difficulty of the questions involved, and the skill
     requisite to perform the legal service properly;
                                                                   (continued)
                                      14
                                                   No.   2017AP1882-D


    Count 10: By failing to hold in trust the $11,000 and
    the $2,700 advanced fees paid to him for the two
    matters he agreed to handle on R.R.'s behalf, with no
    evidence of an intention to utilize the advanced fee
    alternative, Attorney White in each instance violated
    former SCR 20:1.15(b)(4).

    Count 11: By failing to review file materials, obtain
    evidence, and develop a viable strategy for pursuing
    R.R.'s objective of modifying the placement order and
    addressing the specific issues that served as the
    basis   for   supervised  placement,  Attorney  White
    violated SCR 20:1.1.11

    Count 12:    By failing to take sufficient action on
    behalf of R.R. to achieve his objective of returning
    to shared custody and unsupervised placement with his
    daughter, Attorney White violated SCR 20:1.3.




         (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.
    11 SCR 20:1.1 provides:    "A lawyer shall provide competent
representation to a client.     Competent representation requires
the legal knowledge,      skill, thoroughness and preparation
reasonably necessary for the representation."


                               15
                                                        No.   2017AP1882-D


    Count 13: By failing to take any action on behalf of
    R.R. to pursue the defamation claim Attorney White
    agreed to handle, Attorney White violated SCR 20:1.3.

    Count 14:   By providing R.R. with false case status
    information in the post-divorce custody and placement
    case, including leading R.R. to believe the case was
    ongoing, Attorney White violated SCR 20:8.4(c).

    Count 15:    By failing to return R.R.'s file to him
    upon termination of the representation; failing upon
    termination of the representation to refund to R.R.
    the fees paid to Attorney White in advance to pursue
    modification of a custody and placement order, which
    fees Attorney White could not establish were earned;
    and failing upon termination of the representation to
    refund to R.R. the fees paid to Attorney White in
    advance to pursue a defamation action, which fees
    Attorney White could not establish were earned,
    Attorney    White,   in   each   instance,   violated
    SCR 20:1.16(d).12

    Count 16:   By misrepresenting to the OLR that he had
    returned   R.R.'s   file,   Attorney   White  violated
    SCR 22.03(6), enforceable via SCR 20:8.4(h).
    ¶39    The   third   client   matter     detailed   in    the   OLR's
complaint involved Attorney White's representation of K.G., who
hired Attorney White to represent her in a dispute with her
former landlord in January of 2016.        In November 2015, K.G., who


    12   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.


                                    16
                                                                         No.     2017AP1882-D



operated a dance studio, received a notice to quit or pay rent.
The   landlord      asserted     that    K.G.       owed    over    $38,000       in    rent,
maintenance,        expenses,    and     property         tax.      K.G.       vacated     the
property in late December 2015.
      ¶40     On    January     9,   2016,        K.G.     paid    Attorney       White    an
advanced fee of $1,000.              Attorney White led K.G. to believe a
resolution     of    the     lease   dispute        was    possible.           K.G.    denies
receiving a fee agreement from Attorney White.                               Attorney White
later gave the OLR an unsigned fee agreement that stated he
agreed   to    provide       "counseling,         advocacy,       and    any    negotiation
conferences or settlement meetings should they occur," but not
any "in court" activities.              The agreement provided that the fees

would be charged on a flat fee basis for a period of one year.
The agreement did not state Attorney White's intention to use
the   alterative       fee    placement       measures        allowed         under    former
SCR 20:1.15(b)(4m).
      ¶41     Attorney White told the OLR that after he was hired he
made several attempts to communicate with counsel for K.G.'s

landlord,     but    he    provided     no    documentation             to    support     that
statement.         In May 2016, the landlord filed suit against K.G.
and her business seeking a money judgment for amounts due under
the lease agreement.             K.G. was served on May 20, 2016.                         She
notified Attorney White of the lawsuit by text message that day
and informed him the answer was due in 20 days.                              Attorney White
informed K.G. he had been "calling the lawyer for two weeks
daily with no returns" and asked that she fax a copy of the
complaint to him.
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       ¶42    K.G. did not have a fax machine and offered to drop
off the complaint at Attorney White's office on May 21, 2016.
Attorney      White    offered    to   meet K.G.    elsewhere as        his   office
would be closed.         The meeting never took place.
       ¶43    Throughout May and June 2016, K.G. contacted Attorney
White several more times via text message with questions about
filing for bankruptcy and requesting that Attorney White contact
opposing counsel to offer a lesser amount.                  Attorney White told
K.G. that the landlord's attorney stated on a couple occasions
he would talk to his client, but that Attorney White had heard
nothing back from him.
       ¶44    On June 7, 2016, K.G. asked Attorney White if he could

file an answer.           Attorney White did not respond.                 K.G. sent
another text message asking if Attorney White was able to file
the answer.       Attorney White responded that K.G. never provided
him with a copy of the complaint and that he would need that in
order to do anything.            K.G. provided Attorney White with a copy
of   the     complaint    that   same   day   via   email   and    text    message.

Attorney White acknowledged receipt of the complaint and told
K.G., "I'll file an answer at no additional charge.                     But if this
goes into further litigation without resolution then there will
be additional fees."
       ¶45    On June 9 and 10, 2016, K.G. asked Attorney White if
there were any updates, and Attorney White failed to respond.
Attorney White failed to file an answer on K.G.'s behalf.                         On
June   21,     2016,     the   landlord's     attorney   filed     a    motion   for
default judgment.         K.G. received notice of the default judgment
                                         18
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motion in the mail on June 22, 2016.                       She contacted Attorney
White, who responded that he had not known that half the time
for a response had elapsed when he agreed to file an answer and
said "an Answer isn't something that I can turn out overnight."
       ¶46    On June 23, 2016, K.G. sent Attorney White a certified
letter       terminating      his      representation       and        requesting       that
Attorney      White    send      her    an    itemization         of     his    services.
Attorney White responded on July 18, 2016, refusing to return
any fees.        He claimed he had fulfilled the purpose of their
agreement, and he failed to provide an accounting.
       ¶47    Counsel for K.G.'s landlord said that to his knowledge
he never had any contact with Attorney White either before or

after filing the lawsuit against K.G.
       ¶48    K.G. hired successor counsel, who moved to reopen the
case.    The matter was settled before the action was reopened,
with K.G. paying the full amount owed.
       ¶49    K.G. filed a grievance against Attorney White with the
OLR.     During the OLR's investigation, Attorney White falsely

told    the    OLR    he   had   made     several    attempts          to     contact    the
landlord's attorney         and that         after   the   lawsuit was           filed   he
informed opposing counsel's office that he represented K.G.
       ¶50    The OLR's complaint alleged the following counts of
misconduct of with respect to Attorney White's representation of
K.G.:

       Count 17:   By failing to hold in trust the advanced
       fees paid to him by K.G., Attorney White violated
       former SCR 20:1.15(b)(4).


                                             19
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    Count 18: By failing to take any action to attempt to
    resolve K.G.'s dispute with her landlord prior to the
    filing of the collection lawsuit; and by failing to
    file an answer on K.G.'s behalf to the collection
    lawsuit, Attorney White, in each instance, violated
    SCR 20:1.3.

    Count 19:    By providing K.G. with inaccurate case
    status information, including by representing to his
    client that he had contacted opposing counsel in an
    effort to negotiate resolution of her lease dispute,
    when he had taken no such action, Attorney White
    violated SCR 20:8.4(c).

    Count 20: By failing to provide K.G. a bill itemizing
    the services he provided in order to substantiate that
    he had earned the fee advanced to him, Attorney White
    violated SCR 20:1.5(b)(3).13

    Count 21:        By     failing upon termination of the
    representation    to    refund to K.G. the $1,000 advanced
    fees she paid     and    which he had not earned, Attorney
    White violated   SCR    20:1.16(d).

    Count 22: In the course of the OLR's investigation of
    K.G.'s grievance, by willfully providing the OLR false
    information that he had made several attempts to
    contact counsel for the landlord and, once the lawsuit
    was filed, had informed opposing counsel's office that
    he   represented   K.G.,    Attorney   White  violated
    SCR 22.03(6), enforceable via SCR 20:8.4(h).
    ¶51   The   final   client    matter   detailed   in    the   OLR's
complaint involved Attorney White's representation of W.B., who
hired Attorney White to file a social security disability claim

in September 2015.      On September 11, 2015, W.B. signed a fee
agreement.   The agreement required a $1,500 flat fee and stated
that Attorney White would charge an additional "10% of any back-

    13 SCR 20:1.5(b)(3) provides:   "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."


                                   20
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pay settlement amount collected."                 The fee agreement did not
state    Attorney    White's      intention   to     use    the   alterative      fee
placement      measures   allowed     under       former    SCR   20:1.15(b)(4m).
Attorney White failed to place the $1,500 advanced fee in his
trust account.
       ¶52    In December 2015, W.B. moved to Florida and provided
Attorney White with his new address.                Over the next few months,
W.B. sent Attorney White periodic text messages inquiring about
the status of the claim.          On March 1, 2016, W.B. texted Attorney
White.       Attorney White failed to respond.              On April 25, 2016,
Attorney White responded to W.B.'s request for an update saying,
"Yes it's under review.            It's a painfully slow process."                 On

June    29, 2016, W.B. again requested               an update,        and Attorney
White again failed to respond.
       ¶53    On July 5, 2016, W.B. sent Attorney White a message
saying he understood that Attorney White was experiencing some
health issues but that W.B. needed to know what was happening.
Attorney White responded the same day saying, "It takes 6-12

months for even an initial review date."
       ¶54    On August 18, 2016, W.B. went to a Social Security
Administration      office   in    Florida    to    check    on   his     disability
application and learned there was no application on file for
him.     When W.B. texted Attorney White informing him that the
Social    Security   Administration         had    no   record    of     his   claim,
Attorney White responded that he uses a "sub atty for those
cases" and he promised to follow up.                Attorney White said if no
action had been taken he would refund W.B.'s fee.                       W.B. was not
                                       21
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aware of and never consented to Attorney White referring his
case to another attorney.
      ¶55     On August 26, 2016, W.B. filed his own application for
disability benefits with the Social Security Administration and
instructed Attorney White to send him a refund by the end of the
week.     Attorney White said he would send a refund.                          He also said
he spoke to and terminated the attorney to whom he had referred
W.B.'s    case.      However,     on    or    about       August       26,   2016    through
September 29, 2016, the attorney to whom Attorney White claimed
he referred the case was in jail.
      ¶56     On September 7, 2016, W.B. sent Attorney White a text
message asking about the refund.                  Attorney White said it "went

in the mail on Friday."                On September 14, 2016, W.B. texted
Attorney    White    again saying he had              not received the refund.
Attorney White failed to respond.                   On September 19, 2016, still
not having received a refund, W.B. sent Attorney White another
text message expressing his frustration with Attorney White's
dishonesty and asking that he "do the right thing."                                 Attorney

White    responded    by    saying      he    was    trying       to    track     down    the
mailing and denied he was trying to deceive W.B.                               W.B. replied
with a request for a replacement check.                     Attorney White promised
to check on the issue the next morning.
      ¶57     On October 10, 2016, W.B filed a grievance against
Attorney White with the OLR.                 Attorney White failed to respond
to an initial request to respond to the grievance.                              On December
12,   2016,    Attorney     White      emailed      the     OLR    acknowledging          that
nothing     had   been     done   on    W.B.'s       case    and       claiming      he   had
                                             22
                                                                     No.     2017AP1882-D



contracted the filing out to another attorney and that attorney
was having legal problems.              Attorney White said he planned to
refund W.B.'s fee in two installments, but he held off because
he did not want there to be an appearance of impropriety in
sending W.B. money without the OLR's approval.
      ¶58   On     December      19,     2016,     the    OLR        sent     follow-up
correspondence to Attorney White informing him that his email
did not fully respond to all issues raised by W.B.'s grievance.
The OLR also informed Attorney White he did not need the OLR's
approval to refund fees.
      ¶59   On January 24, 2017, the OLR received Attorney White's
supplemental      response      to   W.B.'s      grievance.          Attorney       White

provided       copies     of    forwarded       email     messages          purportedly
exchanged with the attorney he claimed he retained to handle
W.B.'s   case.       Attorney    White     claimed,      without      documentation,
that he had paid the other attorney $1,200 to handle W.B.'s case
via a money order from Kwik Trip.                 The other attorney reviewed
all of his emails, text messages, and personal calendar and was

unable to place W.B. as a client.               The other attorney also could
not   locate     any emails     purportedly sent         to    him    from Attorney
White    regarding      W.B.;   he     denied    ever    receiving         $1,200    from
Attorney    White    to   handle     W.B.'s     case;    and    he    said    he    never
handled or wanted to handle social security disability claims.
      ¶60   Attorney White told the OLR he mailed a $750 refund
check to W.B. on January 10, 2017 and that he would mail a
second $750 refund check on February 19, 2017.                       As of March 2,
2017, W.B. had not received any refund check.
                                          23
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     ¶61    On   March   2,   2017,    the     OLR   sent   Attorney    White
correspondence via email and regular mail inquiring about the
refund.    Despite being copied with the OLR's correspondence to
W.B. at his current address, Attorney White told the OLR, "I
don't have a good address for him and no contact information for
him anymore.     The address I had is not correct.          If you have it
I'd love to get this to him."              The OLR responded by providing
Attorney White with W.B.'s current address.             On March 9, 2017,
W.B. confirmed receipt of two $750 refund checks from Attorney
White.     Attorney White included a handwritten note claiming he
had initially missed a "9" in W.B.'s address.               The note asked
that W.B. only cash one of the checks and wait until the end of

the month to cash the other one.
     ¶62    The OLR's complaint alleged the following counts of
misconduct with respect to Attorney White's representation of
W.B.:

     Count 23:   By   failing to hold the advanced fee he
     received from W.B. in trust, Attorney White violated
     former SCR 20:1.15(b)(4).

     Count 24: By failing to pursue W.B.'s social security
     disability claim, Attorney White violated SCR 20:1.3.

     Count 25:    By providing W.B. misleading information
     regarding the status of his social security claim,
     implying that the case was progressing and that he had
     hired another attorney to pursue the claim when
     neither    was   true,    Attorney    White   violated
     SCR 20:8.4(c).

     Count 26:      By failing upon termination of the
     representation to promptly refund W.B.'s entire fee,
     none of which was earned, Attorney White violated
     SCR 20:1.16(d).

                                      24
                                                                No.     2017AP1882-D


       County 27:    By misrepresenting to W.B. in September
       2016 that he had mailed his refund to him, Attorney
       White violated SCR 20:8.4(c).

       Count 28: In the course of the OLR's investigation of
       W.B.'s grievance, by willfully providing the OLR
       information that was not true, including falsified
       emails and assertions that he had referred W.B.'s case
       to another lawyer who neglected the case, that he had
       paid that lawyer $1,200 to handle the case, and that
       he had mailed W.B. a refund check on January 10, 2017,
       Attorney White violated SCR 22.03(6), enforced under
       the Rules of Professional Conduct via SCR 20:8.4(h).
       ¶63   The referee noted in his supplemental report that the
parties agreed to the dismissal of count 14 of the complaint.
It    also   noted   that    by   stipulation     of   the   parties     filed   on
September 20, 2018, Attorney White agreed he was not contesting
counts 1, 10, 17, and 23 of the complaint.                    The referee also
noted that in his post-trial brief Attorney White stipulated to
counts 2, 3, 4, 5, 6, 7, 8, 9, 13, 15, 16, 24, 25, 26, 27, and
28.     The referee said that since Attorney White was essentially
admitting     the    facts   of   the   16    stipulated     counts,    the   facts

alleged in the complaint as to each of those counts were found
as true and correct and the referee further found that Attorney

White committed each of those counts of misconduct.
       ¶64   The referee went on to conclude that the OLR met its

burden of proof as to the remaining ten counts of misconduct.
As to the appropriate sanction, the referee said it was quite
clear    that   Attorney      White     was    obviously      not     sufficiently
experienced or knowledgeable enough to take on responsibility
for any of the legal matters he accepted for any of the four
clients who filed grievances against him.                    The referee noted


                                        25
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Attorney     White     apparently     commenced        his    solo       law     practice
shortly     after graduating      from law school.                The     referee     said
Attorney White:

      [H]as shown an apparent disdain for doing the
      necessary research or other work required to become a
      capable advocate for his clients in each case.
      Apparently he never asked himself "what do I have to
      prove in order to win this case?"      Assistance that
      could have helped him has been readily available in
      Wisconsin if he had only been capable of recognizing
      his early limitations in complicated legal and
      practical matters of assisting his clients.    The sad
      result   is  that   his  clients  each   suffered  the
      consequences of his deficiencies.
      ¶65    The     referee    agreed        with     the     OLR's       recommended
sanction, a 15-month suspension of Attorney White's license to
practice law in Wisconsin.             While the referee said that, to
Attorney White's credit, he has admitted to many of the counts
of misconduct, he "has offered no regrets or ideas for needed
restitution due to his lack of ability in handling the matters
which he undertook."
      ¶66    The referee recommended that Attorney White should be

ordered     to   reimburse     K.G.   $1,000     and       should    be     ordered     to
reimburse R.R. $13,430.          Finally, the referee recommended that
Attorney     White    be   required    to     pay    the     full    costs       of   this
proceeding.
      ¶67    Neither party has appealed the referee's report, so
this matter is submitted to the court for review pursuant to
SCR 22.17(2).        We review a referee's findings of fact subject to
the   clearly      erroneous     standard.           See     In     re     Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,

                                         26
                                                                           No.        2017AP1882-D



675   N.W.2d 747.             We review the referee's                conclusions           of law
de novo.       We       determine     the      appropriate         level       of     discipline
independent        of        the   referee's        recommendation.                 See     In   re

Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261
Wis. 2d 45, 660 N.W.2d 686.
       ¶68    After careful review of the matter, we agree that a
15-month suspension of Attorney White's license to practice law
in    Wisconsin         is    appropriate.          Although       no    two        disciplinary
matters      are precisely alike,              we find       that the misconduct                 at
issue   here       is    somewhat     similar        to    that     presented         in    In    re
Disciplinary        Proceedings        Against           Ruppelt,       2017     WI       80,    377
Wis. 2d 441,        898       N.W.2d 473.           In    that     case,       an     attorney's

license      was   suspended        for   15    months       for    multiple          counts      of
misconduct which included failure to hold client money in trust;
dishonest      billing         practices;      dishonesty          to    the        OLR    in    its
investigation; failure to properly communicate with a client;
and false statements to a tribunal.
       ¶69    There are many similarities between the misconduct at
issue in Ruppelt and the misconduct at issue here.                                         In both
cases, the attorneys repeatedly failed to follow the rules of
professional conduct and engaged in a variety of misleading and
deceptive behavior in an attempt to conceal their misconduct.
Attorney White agreed to represent clients in areas of law in
which he had little or no experience.                       He took their money and,
to the extent he performed any legal services for the clients,
his representation was profoundly deficient.                               He lied to his


                                               27
                                                                          No.     2017AP1882-D



clients and the OLR, and he has refused to refund fees.                                        His
misconduct warrants a 15-month license suspension.
       ¶70   We also agree with the referee's recommendation that
Attorney White be required to make restitution in the amount of
$1,000 to K.G. and $13,430 to R.R.                   Finally, as is our normal
practice, we find it appropriate to impose the full costs of
this disciplinary proceeding, which are $17,105.44, on Attorney
White.
       ¶71   IT IS ORDERED that the license of Cole J. White to
practice     law   in   Wisconsin        is    suspended        for   a     period       of     15
months, effective October 4, 2019.
       ¶72   IT IS FURTHER ORDERED that within 60 days of the date

of this order, Cole J. White shall pay restitution to R.R. in
the amount of $13,430 and to K.G. in the amount of $1,000.
       ¶73   IT IS FURTHER ORDERED that within 60 days of the date
of this order, Cole J. White shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $17,105.44.
       ¶74   IT    IS   FURTHER     ORDERED        that    restitution            is     to    be

completed     prior     to   paying       costs     to     the    Office          of     Lawyer
Regulation.
       ¶75   IT IS FURTHER ORDERED that Cole J. White shall comply
with   the   provisions      of    SCR    22.26     regarding         the       duties    of     a
person   whose     license    to    practice       law     in    Wisconsin         has        been
suspended.
       ¶76   IT    IS   FURTHER      ORDERED        that    compliance             with       all
conditions of this order is required for reinstatement.                                        See
SCR 22.29(4)(c).
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