                                                            2018 WI 110

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP85-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Daniel Parks, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Daniel Parks,
                                  Respondent-Appellant.

                             DISCIPLINARY PROCEEDINGS AGAINST PARKS

OPINION FILED:          December 13, 2018
SUBMITTED ON BRIEFS:    September 26, 2018
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the respondent-appellant, there were briefs filed by
Peyton B. Engel and Hurley, Burish & Stanton S.C., Madison


       For the complainant-respondent, there was a brief filed by
Brenda K. Sunby          and the   Office of Lawyer Regulation, Wausau
                                                                           2018 WI 110
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2016AP85-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Daniel Parks, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
            Complainant-Respondent,
                                                                    DEC 13, 2018
      v.
                                                                       Sheila T. Reiff
                                                                    Clerk of Supreme Court
Daniel Parks,

            Respondent-Appellant.




      ATTORNEY      disciplinary        proceeding.          Attorney's         license

suspended.



      ¶1    PER   CURIAM.     Attorney         Daniel    Parks     has    appealed       a

report filed by Referee William Eich concluding that Attorney

Parks   committed     eight   of   14    alleged        counts     of    professional

misconduct   and     recommending       that    Attorney       Parks'     license       to

practice law in Wisconsin be suspended for 14 months, rather

than the two-year suspension sought by the Office of Lawyer

Regulation    (OLR).        The    referee       considered        Attorney       Parks'
objection to costs and recommends we impose the full costs of
                                                                                No.     2016AP85-D



this       proceeding      on      Attorney    Parks.           The      OLR   did      not    seek

restitution        and    the      referee     did    not      recommend       a   restitution

award.

       ¶2        In his appeal, Attorney Parks argues that the evidence

was    insufficient           to     support    many      of    the      referee's       factual

findings         and    all     of    the     referee's        conclusions         determining

misconduct.            Attorney Parks argues further that even if the

referee's conclusions are upheld, the violations only support a

license suspension of, at most, less than six months.1

       ¶3        Upon careful review of this matter, we uphold all of

the    referee's         findings       of   fact    and       conclusions         of   law    and

conclude that a 14-month suspension of Attorney Parks' license

to practice law is an appropriate sanction for his misconduct.

We also deny Attorney Parks' objection to costs.                                      We see no

reason to deviate from our usual custom, which is to require an

attorney who has committed misconduct to pay the full costs of

the proceeding, which are $42,226.26 as of July 6, 2018.                                        The

OLR did not seek restitution and no restitution is ordered.
       ¶4        Attorney       Parks    was     admitted           to    practice       law    in

Wisconsin in 1991.              He has not previously been disciplined.

       ¶5        The   allegations       giving      rise      to     this     complaint       stem

from       the   time    Attorney       Parks       was   employed        at    the     firm    of

Zacherl, O'Malley & Endejan (the firm),                             from 1995 until May


       1
       A suspension of less than six months does not require the
lawyer to undergo a formal reinstatement proceeding, which
includes a character and fitness inquiry. See SCR 22.28.


                                                2
                                                                       No.       2016AP85-D



2013.     He worked in the Ripon office.                 In April 2013, Attorney

Parks announced he was leaving the firm.                          Following Attorney

Parks'    departure,       the    firm   filed     a   grievance      with       the    OLR,

stating,       among    other     things,       that   it    had     discovered         that

Attorney Parks had performed unauthorized legal work "on the

side" ("non-firm work") while employed by the firm.

    ¶6         On January 12, 2016, the OLR filed a complaint against

Attorney       Parks.       Initially,      the    OLR      alleged    19    counts       of

misconduct.        As the case proceeded, the OLR's                    complaint was

twice amended, ultimately alleging 14 counts of misconduct.                              The

first     four    counts     involve       allegations       of    unauthorized          fee

reductions and non-firm work.                   Counts five through 13 allege

misconduct       related     to    Attorney       Parks'     handling       of    several

matters related to C.D. and her relatives.                         Count 14 alleged

noncooperation with the OLR.

    ¶7         Attorney Parks filed an answer refuting most of the

allegations.       The parties engaged in extensive discovery.                         Prior

to the evidentiary hearing, the parties filed stipulated facts.
The referee conducted a three day evidentiary hearing in October

2017 at which some 18 witnesses testified.                    The referee issued a

report    on     February    7,    2018,    concluding        that    Attorney         Parks

committed eight of the 14 alleged counts of misconduct, that OLR

had failed to prove six counts, and recommending a 14-month

license suspension.              Attorney Parks objected to costs.                       The

referee issued a separate ruling, concluding that full costs

were warranted.         Attorney Parks appeals.             The OLR did not cross-
appeal.
                                            3
                                                                                 No.    2016AP85-D



      ¶8     On appeal, we consider whether the referee's findings

are   clearly      erroneous.           See     In    re    Disciplinary           Proceedings

Against     Carroll,          2001    WI     130,    ¶ 29,       248    Wis. 2d 662,            636

N.W.2d 718.             We     independently         review      the        referee's       legal

conclusions.        Id.

      ¶9     At the onset we note that the partners at his former

firm and C.D.'s relatives present a very different account of

what transpired than Attorney Parks recounts.                                 Attorney Parks

characterizes           the    grievances       against      him       as    a    "vindictive"

collaboration between a partner at Attorney Parks' former law

firm, Attorney Z., and Attorney Parks' former client, C.D.'s

daughter, L.E.           He contends that L.E. "is resentful over her own

tumultuous relationship with her mother" and that Attorney Z.

resents     that    Attorney         Parks    left    the     firm     to     start      his    own

competing practice.                This record is replete with accusations of

lying; many of the issues turn on credibility assessments.

      ¶10    Credibility issues are left to the discretion of the

trial court, or, in the case of a disciplinary proceeding, the
referee.      Gehr v. City of Sheboygan, 81 Wis. 2d 117, 122, 260

N.W.2d 30 (1977).               In this matter, the referee's credibility

determinations            are        intertwined          with       his         findings        of

fact.   See In re Disciplinary Proceedings Against Charlton, 174

Wis. 2d 844,       498        N.W.2d 380      (1993).         Many      of       the    referee's

conclusions        rest       on     implicit       findings       about         the    relative

credibility        of    witnesses.           When    a    court       does       not    make    an

explicit finding, an implicit finding may suffice, but only if


                                                4
                                                                         No.   2016AP85-D



the   facts   of     record     support       it.       State       v.    Echols,     175

Wis. 2d 653, 672, 499 N.W.2d 631 (1993).

      Non-firm work and fee reductions (Counts One-Four)

      ¶11   The OLR alleged that that by engaging in self-dealing

and   misappropriating        fees   from      the    firm     by    performing       and

privately billing for non-firm legal work while employed by the

firm, Attorney Parks violated SCR 20:8.4(c)2                   (Count One).

      ¶12   The referee concluded that the OLR established this

allegation.    Attorney Parks admits in the stipulated facts that

he performed legal work for approximately 30 clients "on the

side," collected at least $13,875 in fees, and deposited the

fees into his personal account.               Attorney Parks also admits he

did not run conflicts of interest                    checks through the firm's

client management software.             The referee acknowledged but was

clearly unpersuaded by Attorney Parks' assertion that one of the

firm's partners gave him permission to handle some estate work

"off the books."        The referee noted that "files found on the

firm's    computer    involved,      among      other       things,      small    claims
cases,    contract    and     traffic   cases,        and    custody      disputes    in

addition to wills, that Parks handled and [Attorney Z.] denies

giving any such permission."

      ¶13   Attorney     Parks       attacks         several    aspects          of   the

referee's findings and his legal conclusion that Attorney Parks


      2
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                          5
                                                                          No.     2016AP85-D



violated SCR 20:8.4(c).            As he argued to the referee, Attorney

Parks maintains that one of the firm's partners, Attorney Z.,

was well aware of Attorney Parks' non-firm work and, indeed,

approved it.       Attorney Parks claims this practice began in 2005,

when one of Attorney Z's own clients could not pay a large legal

bill    so   an     arrangement     was       made    whereby       the     client      did

remodeling work on Attorney Parks' home and Attorney Parks, in

turn, paid the firm to reduce the client's outstanding legal

balance.     Attorney Parks claims this bartering plan went awry,

and Attorney Parks took out a home equity loan to complete the

project, which Attorney Z. co-signed.

       ¶14   Attorney     Parks    claims      that     over   time,       Attorney      Z.

regretted      having    co-signed      the      loan    and    that       Attorney      Z.

encouraged Attorney Parks to conduct non-firm estate planning

work so that Attorney Parks could earn extra money with which to

accelerate his efforts to refinance the loan.

       ¶15   Attorney Z. flatly denied that he authorized Attorney

Parks to engage in non-firm work.                    The firm's other partner,
Attorney O., also denied authorizing any non-firm work.

       ¶16   Attorney Parks says that the referee's finding that

files   pertaining       to   outside     work    were    found     "on         the   firm's

computer"    is clearly erroneous.               He maintains that all such

files   were      kept   on   a   computer     belonging       to   Attorney          Parks'

acquaintance, C.D., so there would have been no such files on

the firm's computer.

       ¶17   Post-briefing, the referee advised the court and the
parties in writing that his reference to files on "the firm's
                                          6
                                                                  No.   2016AP85-D



computer" was indeed a "minor factual error" and that the report

should be amended to clarify that the documents in question were

found on C.D.'s computer, not the firm's computer.

    ¶18    As corrected, the referee's finding of fact is not

clearly erroneous.         Moreover, we are of the opinion that in

making this finding, the referee was focused less on where files

were found (although that is relevant to other allegations) and

more on noting that even if Attorney Z. had authorized Attorney

Parks to engage in some non-firm estate work, Attorney Parks

clearly engaged in other non-firm work that exceeded the scope

of any authorization.

    ¶19    Attorney Parks also complains that the referee made

only an "implicit" credibility determination and says the facts

of record do not support it.        He maintains that Attorney Z. is

engaged   in     "serial   dissembling"    and    points    to     evidence    he

believes supports this claim.

    ¶20    For    example,   Attorney     Parks   notes    that    Attorney    Z.

initially told the OLR that Attorney Parks made a deal with a
client, M.W., to reduce M.W.'s legal fees in exchange for M.W.

creating a legal website for Attorney Parks.                The OLR's first




                                     7
                                                                        No.   2016AP85-D



complaint       alleged    misconduct        related       to   this    incident      but

dropped the charge when the complaint was amended.3

     ¶21    The      referee   noted     that     both     partners     denied    giving

Attorney Parks permission to engage in non-firm work.                           Although

Attorney Parks argues that the referee failed to give adequate

weight     to    his    evidence,      the       referee    clearly      weighed      the

credibility of Attorney Parks' testimony and found it wanting.

We will not reassess Attorney Parks' credibility.                         We conclude

that the record supports the referee's findings and conclusion

pertaining      to     count   one     and   we    accept       them.     See    In    re

Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269

Wis. 2d 43, 675 N.W.2d 747.

     ¶22    Turning       to   count    two,     the   referee     concluded,      based

primarily on Attorney Parks' own stipulated admission, that by

earning fees from non-firm legal work, Attorney Parks violated a

standard of conduct set forth in In re Disciplinary Proceedings




     3
       The website came to the firm's attention when it tried to
collect outstanding legal fees from M.W. M.W. indicated that he
had created a website in an effort to offset his legal fees.
The website prominently featured Attorney Parks, barely noted
his affiliation with the firm, and implied Attorney Parks was
offering financial consulting services at the firm's Ripon
office. Although Attorney Parks disavowed any knowledge of the
website, denied asking M.W. to create it, and took steps to
remove it, this incident clearly sowed seeds of distrust between
the partners and Attorney Parks.




                                             8
                                                                       No.   2016AP85-D



Against Shea, 190 Wis. 2d 560, 527 N.W.2d 314 (1995), actionable

via SCR 20:8.4(f).4         (Count Two).

       ¶23     Attorney Parks disputes the referee's conclusion that

he violated SCR 20:8.4(f) for the same reasons he disputes that

he committed the misconduct alleged in count one; he maintains

that       Attorney    Z.   authorized     him     to    perform      non-firm    work.

Again, this turned on a credibility determination, albeit an

implicit one, that we will not disturb.                        It is sufficiently

supported by the record.

       ¶24     Counts three and four of the second amended complaint

allege      that   Attorney      Parks   made     unauthorized       fee   reductions,

and/or       accepted    services    that       benefitted     him    personally     in

exchange for a reduction of legal fees, at the firm's expense.

Specifically, the OLR alleged that:                 (1) in 2012, Attorney Parks

reduced       client    M.W.'s    legal     fee    by    $3,122.70      without    firm

approval;      (2)     Attorney    Parks   agreed       to   reduce    client     R.C.'s

       4
       SCR 20:8.4(f) provides: "It is professional misconduct to
violate a statute, supreme court rule, supreme court order or
supreme court decision regulating the conduct of lawyers."

     In In re Disciplinary Proceedings Against Shea, 190
Wis. 2d 560, 527 N.W.2d 314 (1995), Attorney Shea sent a client
for whom he had performed legal work two separate bills, one
payable to the law firm, the other——for $75,000——payable
directly to Attorney Shea. Both were paid. It appeared to the
firm that an unbilled balance remained.       Attorney Shea then
represented to his firm that the (apparently) unbilled fees
should be discounted, implying that the client was unhappy with
an associate's performance.      The court concluded that by
concealing from the firm that he had personally received funds
from a client while the firm was not being paid in full for
legal fees, the lawyer violated SCR 20:8.4(c).


                                            9
                                                                         No.     2016AP85-D



attorney fees in exchange for R.C. performing remodeling work on

Attorney Parks' home; and (3) Attorney Parks agreed to credit

legal fees owed by client H.W. in exchange for H.W. doing body

work on Attorney Parks' car.5

      ¶25     The    referee     concluded,          based     specifically       on    the

testimony of R.C. and H.W., that Attorney Parks engaged in self-

dealing     in      violation     of     SCR       20:8.4(c)        (Count     Three)    by

collaborating with R.C. and H.W. for them to perform remodeling

and auto work in exchange for a reduction of legal fees owed to

the   firm.         The   referee      also    concluded       that    Attorney        Parks

violated the standard of conduct set forth in In re Disciplinary

Proceedings         Against    Shea,     190       Wis. 2d 560,        actionable        via

SCR 20:8.4(f) (Count Four).

      ¶26     In    alleging     count        four    the     OLR    referenced        three

incidents:         the write down of M.W.'s fee, exchanging fees for

remodeling services with R.C., and exchanging fees for auto body

work with H.W.         In reaching his conclusion regarding count four,

the referee focused only on the write down of M.W.'s fee.                                The
referee     acknowledged        Attorney       Parks'       version    of    events     but

clearly     found     credible    and    relied       on     the    testimony    of     both


      5
       Attorney Parks notes that unlike Shea, he was not a
partner, and he was not subject to an employment contract with
the firm that provided that "all fees, compensation, and other
things of value received or realized as a result of the
rendition of professional legal services by [him] in any
capacity . . . shall belong to the [firm] whether paid directly
to [him] or to the [firm]."



                                              10
                                                                     No.   2016AP85-D



Attorneys Z. and O., that Attorney Parks did not have authority

to write down a substantial amount of legal fees, and concluded

that Attorney Parks thus violated SCR 20:8.4(f).6

       ¶27    Attorney Parks refutes these conclusions and says the

referee's       implicit     determination        that    these     witnesses    are

credible is belied by other record evidence.                        Attorney Parks

admits       that    he   reduced      M.W.'s    fee,    but   maintains    he   was

authorized to do so and was transparent about it.                      He says the

fee reduction was recorded in the firm's billing system so there

was no "concealment."

       ¶28    Attorney Parks contends that although he was not a

partner, the firm was run——to quote Attorney Parks' former legal

secretary——like "a group of solo practitioners all housed under

the same roof."           As such, he says that he had discretion over

the cases he accepted and over fees, and that he had authority

to authorize fee reductions.              He says there was no firm policy

prohibiting fee reductions.               He cites corroborating testimony

from other firm staff members who also reported reducing fees
without permission.

       ¶29    Moreover, he says that, as a factual matter, he did

not reduce R.C. or H.W.'s fees in exchange for services.                          He

says       R.C.'s     affidavit     is     "preposterous"         "incoherent    and

incredible"         and   that   the    record    evidence,     namely     cancelled


       6
       The referee did not make a specific finding or conclusion
as to R.C. and H.W. on count four, but the findings he did make
are sufficient to establish a violation of SCR 20:8.4(f).


                                           11
                                                                    No.   2016AP85-D



checks and the testimony of his former wife, shows he paid R.C.

for the work performed on his home.                  He alleges that both R.C.

and       H.W.    lied    in   their      affidavits,    in    exchange   for   fee

reductions that were offered by the firm, not by him.                     Again, he

says that his evidence is more credible than the opposition and

that the referee improperly focused on whether he had permission

to write down fees rather than the alleged misconduct, which

turned on whether he traded fee discounts for personal work

which, again, he asserts he did not.

          ¶30    The referee's findings implicitly accept, as credible,

the testimony of Attorney Z. and Attorney O. and the testimony

of the two clients, each of whom contradicted Attorney Parks'

account of what transpired.                The record evidence indicates that

Attorney Parks was an associate, the firm paid the overhead, he

was paid a percentage of his billings, and he needed approval to

authorize a significant fee reduction.                   We accept the referee's

findings and conclusions of law regarding counts three and four.

          Counts Five-13: Interactions with C.D. and her relatives
          ¶31    The OLR alleged nine counts of misconduct relating to

Attorney Parks' interactions with C.D. and her relatives.                       The

referee concluded that Attorney Parks committed the misconduct

alleged in four of the nine counts.

          ¶32    Attorney Parks and C.D. became acquainted in the early

1990s.          Their lives were interconnected until her death in May

2013.       Attorney Parks represented C.D. in a divorce in 1996 and

in    a    personal      injury   claim    in    2008.    He   reviewed   documents


                                            12
                                                                        No.   2016AP85-D



regarding a loan C.D. made to her daughter, and answered her

legal questions on occasion.

     ¶33    Attorney Parks also occasionally used C.D.'s computer

for his own work and, although he disputes it, there is record

evidence that C.D. did some secretarial work for Attorney Parks.7

Attorney    Parks       was    a    landlord     and    rented    a    home   to    C.D.

beginning in 2008 until her death.                    In 2010, Attorney Parks and

his then-wife borrowed $35,000 as an unsecured loan from C.D.

Attorney Parks says that as C.D. became ill, he served as C.D.'s

Power of Attorney, took her to medical appointments, and visited

her at home and after she moved to a nursing home.

     ¶34    Attorney          Parks   was      also    close    friends    with    C.D's

daughter,       L.E.,     and       her   husband,       T.E.         Attorney     Parks

represented T.E. in a personal injury case, wrote two wills for

the couple, and was the best man at their wedding.                             Attorney

Parks    says    that    the       relationship       between    mother    (C.D.)   and

daughter    (L.E.)       was       characterized       by   ongoing     conflict     and

tension,    in    part        because     of     a    failed    trucking      business.
Attorney Parks was also acquainted with C.D.'s sister, G.S., who

is L.E.'s aunt.          Attorney Parks represented G.S. in a divorce

proceeding in 2011 and 2012.

     The $5,000 "Bonus" (Counts Five and Six)



     7
       C.D.'s medical records indicate that C.D. told three
healthcare professionals that she did work for Attorney Parks until
she entered a nursing home. C.D.'s sister, daughter, and son-in-
law also testified that C.D. did legal work for Attorney Parks.


                                            13
                                                                        No.     2016AP85-D



       ¶35    Attorney Parks represented T.E. in a personal injury

case.       The firm's standard contingency fee agreement provided

that    the    firm    would    receive   33     percent    of   any    recovery      for

attorney fees.         The OLR alleged that at the time of settlement,

without authorization from the firm, Attorney Parks unilaterally

reduced      the    attorney    fees    from    33    percent    to    25     percent,    a

$12,000 fee reduction.

       ¶36    T.E. and L.E. claim that thereafter, Attorney Parks

mentioned, on some three occasions, that clients sometimes gave

him     a    bonus.      Then,    during        the    meeting   to     obtain     their

settlement money, Attorney Parks asked about "his $5,000 bonus."

There was testimony that the couple had little money at this

time, but felt compelled to give him the requested bonus.                            L.E.

said that she wrote a $5,000 check and handed it to Attorney

Parks.       He handed it back and asked that she write "gift" on the

memo line, which she did.               The fee reduction and "gift" meant

the firm received $33,000 in legal fees instead of $45,000.

       ¶37    The     referee    concluded      that    Attorney      Parks     violated
SCR 20:8.4(c) by unilaterally and without authorization reducing

the    firm's      attorney     fees,   and     by    seeking    and    accepting        an

unauthorized $5,000 "gift" from L.E. and T.E. (Count Five).                           The

referee concluded further that by engaging in self-dealing after

seeking and accepting a "gift" from L.E. and T.E. in exchange

for a reduction of legal fees owed to the firm, Attorney Parks

violated a standard of conduct set forth in Shea, actionable via

SCR 20:8.4(f) (Count Six).


                                           14
                                                                         No.   2016AP85-D



       ¶38     Attorney Parks appeals these findings and conclusions.

He reiterates that he had authority to unilaterally reduce legal

fees especially where, as here, he thought it was necessary to

facilitate the settlement.                   He points to an anecdote from a

legal assistant who once suggested to a partner that Attorney

Parks should reduce a fee for another client and the partner

said he would not "force the reduction of fees."                        Attorney Parks

says    this       confirms   that      he    had     fee   setting    authority.     He

insists that the check was an unsolicited gift, as evidenced by

his own testimony and that of his former wife, who thanked the

couple.

       ¶39     With    respect     to    count      six,    Attorney   Parks   suggests

that unlike the lawyer in Shea, he was not a partner at the firm

and there was no firm policy to violate, so his only duty to the

firm was a duty of loyalty.                    He says he did not violate that

duty by making a reasonable judgment call to reduce a fee in

order    to    facilitate      a     settlement        that   might    otherwise    have

failed.       Attorney Parks maintains that there is no evidence that
he arranged the gift in exchange or as a quid pro quo for the

fee reduction.          So, Attorney Parks contends that the referee's

conclusion, that he violated SCR 20:8.4(f), is wrong.

       ¶40     A    review    of   the       record    demonstrates     that   in   this

instance, the referee clearly believed the testimony of L.E. and

T.E., noting that they were in "dire financial straits" when

they received their settlement and that both testified that the

"gift" was not their idea, they did not offer it, and felt they
needed to pay it to receive their settlement.                             Both of the
                                               15
                                                                            No.    2016AP85-D



firm's       partners      testified      that    the      fee   reduction         was     not

authorized.

       ¶41     The referee also rejected Attorney Parks' suggestion

that counts five and six are duplicative, explaining that count

five addresses Attorney Parks' misconduct vis a vis his client,

while count six pertains to his misconduct vis a vis his duty of

loyalty to his firm.

       ¶42     We     adopt      the     referee's         findings        of     fact     and

conclusions of law with respect to these two counts.                                Although

mindful of Attorney Parks' defense, we cannot conclude that the

referee's findings, particularly since they rely heavily on the

credibility         of    the    witnesses,      are    clearly       erroneous.           The

findings indicate that Attorney Parks unilaterally and without

authority reduced the legal fees that would be paid to the firm

then essentially recouped his own portion of that reduction by

persuading       the      clients   to   pay     him   a    bonus.         The    record    is

sufficient to support the referee's findings and conclusions on

these counts and we accept them.
       Loan from C.D. (Count Seven)

       ¶43     The referee concluded that the OLR failed to establish

that       Attorney      Parks   violated   SCR    20:1.8(a)         and    (b)8    when    he



       8
           SCR 20:1.8(a) provides:

            (a) A lawyer shall not enter into a business
       transaction with a client or knowingly acquire an
       ownership, possessory, security or other pecuniary
       interest adverse to a client unless:

                                                                                 (continued)
                                            16
                                                                No.    2016AP85-D



borrowed $35,000 from C.D. without proper disclosures.                 Attorney

Parks argued that C.D. was not his client when this transaction

occurred.       The OLR did not demonstrate otherwise and has not

appealed the referee's conclusion.              We therefore conclude that

the referee's findings with respect to this count have not been

shown to be clearly erroneous.           We accept the referee's findings

and conclusion and dismiss count seven.

    Confidentiality (Count 8)

    ¶44       After   C.D.'s   death,     her   daughter,     L.E.,    obtained

C.D.'s computer and discovered that it contained several client

files   and    documents   that   she    was    able   to   access    without   a




         (1) the transaction and terms on which the lawyer
    acquires the interest are fair and reasonable to the
    client and are fully disclosed and transmitted in
    writing in a manner that can be reasonably understood
    by the client;

         (2) the client is advised in writing of the
    desirability of seeking and is given a reasonable
    opportunity to seek the advice of independent legal
    counsel on the transaction; and

         (3) the client gives informed consent, in a
    writing signed by the client, to the essential terms
    of the transaction and the lawyer's role in the
    transaction,   including   whether    the   lawyer is
    representing the client in the transaction.

         (b) A lawyer shall not use information relating
    to representation of a client to the disadvantage of
    the client unless the client gives informed consent,
    excepted as permitted or required by these rules.


                                        17
                                                                        No.   2016AP85-D



password.9         L.E. gave the computer to the firm, which, in turn,

notified the OLR.

      ¶45        The OLR alleged that, by working on client files on

C.D.'s computer, Attorney Parks allowed C.D. access to client

files at a time when C.D. was not working for the firm.                        The OLR

further alleged that the clients did not give informed consent

for     non-employees       to    have   access       to   their   files,      all   in

violation of SCR 20:1.6(a)10 (Count Eight).

      ¶46        The   referee    concluded    that    the   OLR    established      by

clear      and    convincing      evidence     that    Attorney     Parks     violated

SCR 20:1.6(a).          The referee rejected Attorney Parks' suggestion

that the OLR had not shown that C.D. actually looked at the

unprotected client files.

      ¶47        Attorney Parks appeals.         He acknowledges that leaving

client      files       without     password     protection        on     a   non-firm

employee's computer was not a proper practice to ensure client

      9
       The complaint alleged that documents on C.D.'s computer
included a Healthcare Power of Attorney document for a client we
refer to as C.S., that included C.S.'s name, address, and the
names of the client's designated health care agents.      It also
contained a beneficiary designation for a cl ien t we r efe r to
as B .T ., th at inc lu de d the full legal names and social
security numbers of the client's six designated beneficiaries.
      10
       SCR 20:1.6(a) provides:    "A lawyer shall not reveal
information relating to the representation of a client unless
the client gives informed consent, except for disclosures that
are   impliedly   authorized  in  order   to   carry  out   the
representation, and except as stated in pars. (b) and (c)."
Paragraphs (b) and (c) encompass necessary disclosures that are
not implicated here.



                                          18
                                                    No.   2016AP85-D



confidentiality.    However, he reiterates there is no evidence

that C.D. actually looked at the documents and suggests that the

fact that L.E. "found" them does not equate with his "revealing

them."    Therefore, he claims the record does not support the

claim, as alleged.     We are not persuaded and agree that the

facts, as alleged and as found by the referee, are sufficient to

establish that Attorney Parks violated SCR 20:1.6(a).

    Drafting C.D.'s will (Count Nine)

    ¶48    The referee concluded that the OLR failed to prove

that Attorney Parks violated SCR 20:1.7(a)(2)11 by providing C.D.

    11
         SCR 20:1.7(a)(2) provides:

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

         (2) there is a significant risk that the
    representation of one or more clients will be
    materially limited by the lawyer's responsibilities to
    another client, a former client or a third person or
    by a personal interest of the lawyer.

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

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

           (2) the representation is not prohibited by law;

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

                                                        (continued)
                                 19
                                                                      No.    2016AP85-D



with   assistance      drafting    her      will     when,    knowing       he     was   a

beneficiary,        there   was       a     "significant           risk     that     his

representation        was   materially          limited       by     his      personal

interests."        The referee found that while Attorney Parks gave

the firm's will template to C.D., there was no evidence Attorney

Parks actually assisted C.D. in drafting her will.                        This finding

has not been shown to be clearly erroneous and we accept the

referee's conclusion.       Count nine is dismissed.

       Purchasing C.D.'s car (Count Ten)

       ¶49     The referee concluded that the OLR failed to prove

that Attorney Parks violated SCR 20:8.4(c) by using his power of

attorney      to   effectuate   the       transfer   of   the      title    of   C.D.'s

vehicle to Attorney Parks, in contravention of the terms of her

will, while C.D. was allegedly incompetent.                   The OLR focused on

the statement of C.D.'s physician that "it is more likely than

not that C.D. was not competent" when she signed the vehicle

title.       The referee, however, observed that this was not "clear

and    convincing"     evidence    which        is   needed     to   establish       the
alleged disciplinary violation.              This finding has not been shown

to be clearly erroneous.          We accept the referee's conclusion and

dismiss count ten.

       Rent payment (Count 11)


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

               There is no assertion that SCR 20:1.7(b) applies
       here.


                                           20
                                                                      No.    2016AP85-D



      ¶50    The   referee    concluded     that     the   OLR    also      failed    to

prove that Attorney Parks violated SCR 20:8.4(c) when, the day

before C.D. died, Attorney Parks used his power of attorney to

write himself a $1,500 check from C.D.'s account to pre-pay

himself     for    upcoming   June    and     July    2013       rental     payments.

Relying in part on the expert testimony of Attorney Mark Munson

regarding the appropriate conduct of a power of attorney, the

referee was persuaded that on this record, although the conduct

was "questionable," there was no showing that Attorney Parks'

action adversely affected anyone's interests.                    C.D.'s belongings

remained in the rental property during June and July and T.E.

and L.E. stayed in the property during that time.                      This finding

has not been shown to be clearly erroneous and we accept the

referee's conclusion; count 11 is dismissed.

      Release (Count 12)

      ¶51    The OLR alleged and the referee agreed that Attorney

Parks committed fraud, deceit or misrepresentation in violation

of   SCR    20:8.4(c)   by    the    manner    in    which       he   obtained       the
signatures of L.E. and G.S. on a "release," and the terms of the

release he drafted relating to C.D.'s will.

      ¶52    C.D. designated her sister, G.S., and Attorney Parks

as the primary beneficiaries of her will.                  C.D.'s will provided

that Attorney Parks was to receive 40 percent of her payable on

death accounts and 40 percent forgiveness of the balance of the

$35,000 loan from C.D.        She also left Attorney Parks her "rifle,

outdoor furniture, tools, air compressor, John Deere tractor,
push mower, chain saw, and rototiller."
                                       21
                                                              No.   2016AP85-D



       ¶53     The will provided that G.S. was to receive 60 percent

of C.D.'s payable on death accounts, C.D.'s vehicle, and what

was left on Attorney Parks' loan (after the partial forgiveness)

which was then about $21,351.             The will forgave a loan to L.E.

but otherwise excluded her daughter.

       ¶54     C.D. died in May 2013.        A few weeks later, G.S. and

L.E. met with Attorney Parks to discuss C.D.'s estate.                   Both

G.S.    and     L.E.   testified   that     they   thought   Attorney   Parks

represented them in connection with the estate.              Attorney Parks

testified that he told them both, verbally, that he was not

acting as their attorney, but "regrettably I didn't send them a

letter."

       ¶55     On May 24, 2013, the three met at a bank to finalize

distribution of C.D.'s bank accounts.                There, Attorney Parks

asked them each to sign, and both G.S. and L.E. did sign, a

document entitled "Full and Final Settlement & Release of All

Claims."        Both testified that they believed the document was

necessary to close out the bank accounts.              The "release" which
was drafted by Attorney Parks provided that:

      G.S. and L.E. both released and discharged all claims and

       liabilities against Attorney Parks that may exist now or in

       the future regarding all sums that he (and his wife, etc.)

       may have owed to C.D. or her estate in any form known or

       unknown, including, but not limited to, contractual or due

       to his role as power of attorney for C.D.

      They agreed that no probate would be initiated by any of
       them.
                                      22
                                                                            No.    2016AP85-D



      They agreed that they had divided the personal property and

       that they were satisfied with the division.

      G.S. would receive Attorney Parks' share of C.D.'s payable-

       on-death accounts.

      G.S. had to pay the funeral bill and any other of C.D.'s

       debts.

       ¶56     Essentially,        this    document          released      Attorney      Parks

from    all    liability,      permitted         him    to    keep    whatever     personal

property       he   had    received       from    C.D.,       and     excused      him   from

repaying the balance of his loan which was at least $21,351.                               In

exchange, G.S. received all of the payable on death money, which

was some $28,872.19.

       ¶57     The OLR alleged that as a result of this document,

G.S. received $1,261.72 less than she was entitled to receive

and she did not receive C.D.'s vehicle because that had been

sold——by Attorney Parks to himself——shortly before C.D. died.12

       ¶58     The referee found that Attorney Parks failed to tell

L.E. that he did not represent her or G.S., and failed to tell
them    that     they     should    seek    the        advice    of     another    attorney

because he had an interest in the estate.                       The referee concluded

that        Attorney      Parks'    conduct        pertaining         to     the    release

constituted misconduct that violated SCR 20:8.4(c).




       12
       Attorney Parks states that he paid $15,000 for the
vehicle and deposited those funds into C.D.'s accounts which, in
turn, went to G.S.


                                            23
                                                                      No.   2016AP85-D



       ¶59    Attorney Parks appeals.            He maintains that the release

reflected the three beneficiaries' agreement among themselves.

He explained that G.S. wanted a car but did not want C.D.'s car

so there was no conflict over his purchase of the vehicle.                         He

adds that G.S. wanted a lump sum of cash, not years of modest

monthly loan payments from Attorney Parks, hence the decision to

forgive      his    loan   but    give    G.S.     all    the    payable    on   death

accounts.

       ¶60    As    evidence      that    G.S.     and   L.E.    acceded    to    this

agreement,      Attorney     Parks       notes   that     L.E.    brought    a   death

certificate to the bank and that he wrote "per agreement" on a

check he signed over to G.S.                He says he did not threaten or

force anyone and says that he did not tell L.E. she had to sign.

He claims the fact he gave them copies of the release reflects

his transparency.          He claims that no one suffered any ill effect

as a result of this document, but concedes that, because he was

a beneficiary, it was a "poor decision."                    However, he says that

there was no deceit, so there was no violation of SCR 20:8.4(c).
       ¶61    We are not persuaded.              The referee clearly accepted

the    testimony      of    the    two     women     that    they     neither    fully

understood what the "release" provided nor understood why they

were   signing      it.     Inducing      G.S.     and   L.E.,   in   the   immediate

aftermath of the death of their sister and mother, to sign a

patently self-serving document designed to insulate himself from

liability at the potential expense of G.S. was more than a "poor

decision."         We wholly agree with the referee's conclusion that


                                           24
                                                                   No.     2016AP85-D



"Parks'      conduct   in    this   regard     involved     'dishonesty,     fraud,

deceit or misrepresentation' within the meaning of the Rule."

       Conflict (Count 13)

       ¶62    The referee concluded that the OLR failed to prove

that    Attorney     Parks    violated    SCR    20:1.7(a)(2)      based    on    the

theory that he was representing G.S. and L.E. in May 2013 when

they were finalizing C.D.'s estate.                 While the two women may

have thought Attorney Parks was representing their interests as

related to C.D.'s estate, the referee found that there was no

evidence that Attorney Parks was providing legal services to

G.S. at that time, and L.E.'s own testimony indicated she did

not consider him her lawyer at that time.                   These findings have

not    been    shown   to    be   clearly      erroneous    and   we    accept    the

referee's conclusion.          Count 13 is dismissed.

       Non-cooperation (Count 14)

       ¶63    The   referee    also   concluded     that    the   OLR    failed    to

prove       that    Attorney      Parks     violated       SCR    22.03(2)13      and
       13
            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.


                                          25
                                                                              No.     2016AP85-D



SCR 22.03(6),14       enforced       via    SCR        20:8.4(h)15       by     failing      to

cooperate with the OLR (Count 14).                     The OLR pointed to certain

issues,      such   as   Attorney     Parks'       failure         to    provide       certain

client names or a list of non-firm files on which he worked.

The referee disagreed, finding that at most "Parks was guilty of

some    inconsistencies        in     his     responses        to       the     committee's

inquiries . . .."        This finding has not been shown to be clearly

erroneous and we accept the referee's conclusion.                               Count 14 is

dismissed.

       ¶64    We    accept     the     referee's            factual           findings      and

conclusions of law and agree that Attorney Parks committed the

professional        misconduct      alleged       in     counts     one       through      six,

eight, and 12 of the OLR's second amended complaint.                                We dismiss

counts seven, nine, 10-11, and 13-14.

       Recommended Discipline

       ¶65    Attorney       Parks     contends             that        the     recommended

discipline——a 14-month license suspension——is excessive, even if

the    referee's     conclusions      relating         to   misconduct          are    upheld.


       14
       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."
       15
       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)."


                                            26
                                                                            No.    2016AP85-D



Attorney Parks argues that his misconduct is not so serious that

he should be required to petition for reinstatement and prove

his moral character and fitness to practice law.                            Attorney Parks

argues that a license suspension of less than six months is

sufficient.        The      OLR      maintains        that      "Parks'        pervasively

dishonest conduct merits a lengthy suspension, whether that be

the two-year suspension it had recommended, [or] the 14 month

suspension recommended by the referee."

      ¶66     Ultimately,       it   is     this      court's        responsibility       to

determine      appropriate        discipline.             See   In     re     Disciplinary

Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694

N.W.2d 894.      This court considers the seriousness, the effect on

the   legal    system     of    repetition       of       misconduct,        the   need   to

impress upon the attorney the seriousness of the misconduct, and

to deter other attorneys from engaging in similar misconduct.

See In re Disciplinary Proceedings Against Arthur, 2005 WI 40,

¶78, 279 Wis. 2d 583, 694 N.W.2d 910.

      ¶67     Although no two disciplinary cases are exactly alike,
cases in which lawyers collect fees from clients that they did

not report to their firm, and multiple violations of SCR 20:8.4

(Misconduct) typically result in lengthy license suspensions.

      ¶68     Recently,    we     agreed    that      a    one-year       suspension      was

appropriate discipline for a lawyer, with no prior discipline,

who   committed     two        counts      of    misconduct          in     violation     of

SCR 20:8.4(c) and 20:8.4(f), for directly accepting compensation

for consulting services, without notice to her firm.                                  In re


                                            27
                                                                             No.    2016AP85-D



Disciplinary       Proceeding       Against           Trupke,        2018    WI     43,    381

Wis. 2d 136, 911 N.W.2d 361.

     ¶69    We     also      deem     instructive               In     re     Disciplinary

Proceedings      Against     Brown,       2005       WI   49,    280    Wis. 2d 44,        695

N.W.2d 295.      Attorney Brown was suspended 18 months for, inter

alia, accepting fees from clients totaling some $16,000 while

advising his firm that he was acting pro bono.                              See also In re

Disciplinary       Proceedings       Against          Koenig,        2015     WI    16,    361

Wis. 2d 16,      859   N.W.2d 105         (imposing       two-year          suspension     for

taking $39,920 in client fees that were owed to his firm); In re

Disciplinary       Proceedings      Against          Elverman,        2008    WI    28,    308

Wis. 2d 524, 746 N.W.2d 793 (imposing nine-month suspension on

attorney for failing to report substantial co-trustee fees to

his firm); In re Disciplinary Proceedings Against Schaller, 2006

WI   40,   290     Wis. 2d 65,        713      N.W.2d 105            (imposing      two-year

suspension for converting $4,290.85 from firm and failing to

report income on tax returns).                 None of these cases resulted in

discipline less than six months.                     There is more than sufficient
support    for   the   imposition         of     a    14-month       license       suspension

here.

     ¶70    We are not persuaded by Attorney Parks' reference to

In re Disciplinary Proceedings Against Curtis, 2018 WI 13, 379

Wis. 2d 521, 907 N.W.2d 91.                 In that case, the OLR initially

alleged    seven    counts    of    misconduct.             We       concluded      that   the

lawyer committed only four counts of misconduct involving trust

account    violations      and      tax     evasion.             Attorney      Curtis      was
suspended for four months.                The facts were quite different; it
                                            28
                                                                    No.     2016AP85-D



is not a compelling example.             There, in imposing discipline the

court was mindful that Attorney Curtis had served prison time

for tax evasion during which he was unable to practice law.

Also, the court determined that the trust account violations

were    not   intentional,      did    not    involve     misrepresentation        or

dishonesty, and he did not personally benefit from them.                           By

contrast, here Attorney Parks was determined to have committed

four separate counts of misconduct involving fraud, deceit or

misrepresentation.         We      conclude       that    a     14-month     license

suspension is appropriate.            No restitution will be ordered.

       Objection to Costs

       ¶71    Attorney Parks filed an objection to the OLR's pre-

appellate statement of costs and also                    objected to the OLR's

appellate costs.      Attorney Parks reasons that he was exonerated

on six of the 14 counts alleged against him and contends that

the OLR "overcharged" the case.               He asks the court to impose

only 25 percent of the costs upon him.               He argues that he should

not have to "foot the bill" for the OLR's prosecution of conduct
that didn't violate the supreme court rules.                      Attorney Parks

points to In re Disciplinary Proceedings Against Arellano, 2013

WI 24, ¶52, 346 Wis. 2d 340, 827 N.W.2d 877, for the proposition

that   when    the   OLR   drops      charges     prior    to    the   evidentiary

hearing, some reduction in costs is warranted.

       ¶72    It is true that Attorney Parks prevailed on six of the

14 counts alleged, but this court generally does not apportion

costs based on the number of counts charged and/or proven.                         In
re   Disciplinary    Proceedings        Against    Polich,      2005   WI   36,   279
                                         29
                                                         No.    2016AP85-D



Wis. 2d 266, 694 N.W.2d 367 (declining to reduce costs where the

respondent prevailed on five of the seven counts brought against

him).

     ¶73   While there are exceptions, such as Arellano, this is

not one of them.     Attorney Arellano was charged with 14 counts

of misconduct and the OLR sought revocation of his law license.

Before the hearing the OLR dismissed nine counts.                Attorney

Arellano was ultimately determined to have committed only two

counts of misconduct and received a public reprimand.            The OLR

agreed that a cost reduction was appropriate in that case.

     ¶74   In exercising our discretion regarding the assessment

of costs, we consider the submissions of the parties and the

following factors:    (a) the number of counts charged, contested,

and proven; (b) the nature of the misconduct; (c) the level of

discipline sought by the parties and recommended by the referee;

(d) the respondent's cooperation with the disciplinary process;

(e) prior discipline, if any; (f) other relevant circumstances.

See SCR 22.24(1m).
     ¶75   Applying these factors, we are not persuaded that a

reduction in fees is warranted here.       We acknowledge that, after

more than 25 years in practice, Attorney Parks has no prior

discipline.    We consider that the OLR alleged but failed to

prove that Attorney Parks was uncooperative with the OLR.

     ¶76   The other factors do not weigh in support of a cost

reduction.    The OLR alleged 14 counts of misconduct.           Attorney

Parks contested them all.       The referee ultimately concluded, and
we   agree,   that   Attorney    Parks   committed   eight     counts   of
                                   30
                                                                    No.     2016AP85-D



misconduct.       The OLR sought a two-year suspension while Attorney

Parks    argued    that   a     suspension   of    less   than    six     months   was

appropriate.       The referee recommended and we accept a 14-month

license suspension.

    ¶77     In the Arellano case, we observed that the ultimate

misconduct found and discipline imposed were not only much less

than initially sought, but were also of a materially different

nature.      Here,    although      Attorney      Parks   was    exonerated     on   a

number of claims pertaining to his dealings with C.D., he was

nonetheless deemed to have committed four separate violations of

SCR 20:8.4(c), involving fraud, deceit or misrepresentation.

    ¶78     Attorney Parks litigated this case vigorously as is

his right.     That, more than any strategy on the part of the OLR,

is the reason for the high costs.              The referee concluded and we

agree that Attorney Parks has not established that the amounts

included for counsel and referee fees, reporting and transcript

costs,     copying,       and     medical    records      fees,     were      either

"unreasonable," or "unnecessary."16                We thus find no reason to
    16
         Attorney Parks specifically objects to the $3,014 in
expert witness fees paid to the OLR's witness, Attorney Mark
Munson.    He points out that while Attorney Munson testified as
to eight counts of the original complaint, much of his testimony
was that he had reached no relevant conclusions on the points at
issue.     Attorney Munson was not called to testify at the
hearing.    The OLR says that its retention of Attorney Munson,
whether he served as a "testimonial expert" or a "consulting
expert," was "part and parcel of OLR's overall litigation of
this case."     Supreme Court Rule 22.001(3) specifies that the
costs of proceedings include "expert witness fees," and
"compensation and reasonable expenses of experts." The OLR adds
that it found Attorney Munson's opinions valuable.


                                        31
                                                                    No.   2016AP85-D



depart   from    our   general   practice    of    imposing        full   costs   on

attorneys deemed to have committed misconduct.                 See SCR 22.24.

    ¶79    IT IS ORDERED that the license of Daniel Parks to

practice   law    in   Wisconsin   is    suspended       for   a   period    of   14

months, effective January 24, 2019.

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

of this order, Daniel Parks shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $42,226.26,

as of July 6, 2018.

    ¶81    IT IS FURTHER ORDERED that Daniel Parks 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
    No.   2016AP85-D




1
