                                                              2014 WI 75

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP931-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Richard W. Voss, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Appellant,
                             v.
                        Richard W. Voss,
                                  Respondent-Respondent.




                             DISCIPLINARY PROCEEDINGS AGAINST VOSS

OPINION FILED:          July 18, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
       For the complainant-appellant, there were briefs by Julie
M. Spoke and the Office of Lawyer Regulation.




       For the respondent-respondent, there was a brief by Richard
W. Voss and Voss Law Office, Rhinelander.
                                                                          2014 WI 75
                                                                  NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.     2012AP931-D


STATE OF WISCONSIN                            :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
            Complainant-Appellant,
                                                                  JUL 18, 2014
       v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
Richard W. Voss,

            Respondent-Respondent.




       ATTORNEY    disciplinary       proceeding.       Attorney's            license

suspended.



       ¶1   PER CURIAM.       The Office of Lawyer Regulation (OLR)

appeals from that portion of a referee's report recommending

that the license of Attorney Richard W. Voss to practice law in

Wisconsin    be   suspended     for   one    year      as     a      sanction       for

professional misconduct.        The OLR argues that Attorney Voss's

license to practice law should be revoked.

       ¶2   Upon careful review of this matter, we conclude that
an    eighteen-month   suspension     of    Attorney        Voss's      license       to
                                                                            No.   2012AP931-D



practice law is an appropriate sanction for his misconduct.                                 We

agree with the referee that Attorney Voss should be ordered to

make restitution to his former client's estate in the amount of

$2,077.18 and that he be ordered to pay the full costs of this

proceeding, which are $4,625.48 as of April 2, 2014.                              We further

concur with the referee's recommendation that, as a condition of

the reinstatement of his license to practice law in Wisconsin,

Attorney Voss be required to demonstrate that he has in place a

proper trust account consistent with supreme court rules.

       ¶3        Attorney      Voss   was      admitted        to    practice       law     in

Wisconsin        in    1976,    and   practices        in     Rhinelander.          In    2004

Attorney Voss was privately reprimanded for violating Supreme

Court      Rules      (SCRs) 20:1.1      and   20:1.4(a).            Private      Reprimand,

No. 2004-24.1          In 2006 Attorney Voss received a public reprimand

for    various        trust    account     violations.             Public    Reprimand     of

Richard W. Voss, No. 2006-7.

       ¶4        On May 2, 2012, the OLR filed a complaint alleging 11

counts of misconduct arising out of Attorney Voss's work as the
court-appointed          guardian     of    J.K.,      who    is    now     deceased.       In

September of 1987, Attorney Voss was appointed by the Oneida

County circuit court as the guardian of the person and estate of

J.K.       J.K. suffered from mental illness, complicated by alcohol

abuse      and     diabetes,     requiring         a   long    period       of    protective

       1
       The OLR's complaint cited Private Reprimand No. 2004-25,
but that matter involved criminal conduct by a lawyer, which
clearly does not fit the description of Attorney Voss's
misconduct.   Private Reprimand No. 2004-24 involved violations
of SCRs 20:1.1 and 20:1.4(a).

                                               2
                                                                     No.      2012AP931-D



placement.      The circuit court never approved or authorized any

guardianship fees to be paid to Attorney Voss from J.K.'s funds.

      ¶5    Attorney Voss did not set up a separate guardianship

account to handle J.K.'s income and expenses.                     Instead, Attorney

Voss deposited J.K.'s monthly social security benefits in an

account at M&I Bank designated as his client trust account.                            The

account at M&I Bank is not an Interest on Lawyer Trust Accounts

(IOLTA) account but rather a personal checking account that does

not accrue interest.            Attorney Voss also maintained a separate

business    account      at     M&I   Bank       designated     as   a    non-personal

account.     Attorney Voss is responsible for recordkeeping for his

client trust account and is the sole person authorized to sign

checks.

      ¶6    From      1987    through   1990,       J.K.   resided       in   a   private

facility and substantially all of his income was used to pay for

the costs of his care.           In 1990 J.K. was moved to a facility run

by the Veterans Administration (VA).                     The VA did not require a

payment for J.K.'s room, board, and care.                       Attorney Voss made
regular disbursements to the VA for J.K.'s personal needs and

incidentals.

      ¶7    Between 1990 and 2008, Attorney Voss received social

security benefits on J.K.'s behalf totaling between $5,250 and

$7,848 annually.        Between 1990 and 2008, Attorney Voss disbursed

no more than $4,320 per year to the VA on behalf of J.K.                               From

1991 until September of 2002, Attorney Voss made disbursements

to   the   VA   for    J.K.'s    personal        needs    and   incidentals       in   the
amount of $70 per week.               In September of 2002, Attorney Voss
                                             3
                                                                          No.   2012AP931-D



increased the disbursement to $80 per week.                    In October of 2007,

Attorney Voss ceased to make any payments to the VA for J.K.'s

personal needs and incidentals.

       ¶8     Attorney      Voss     should        have     accumulated         at    least

$1,767.60 per year attributable to J.K. in his trust account

over and above the amounts disbursed for J.K.                       In some years the

trust account should have accumulated over $3,000 more than was

disbursed on J.K.'s behalf.

       ¶9     In    October   of    2007,      J.K.'s     social     worker      suggested

that Attorney Voss establish a burial fund for J.K.                              Attorney

Voss    opened      a   separate     account       at     People's    State      Bank    in

December of 2007.          The account was titled "[J.J.K.] Richard [W.]

Voss, Guardian" to be held as a burial account.                            Attorney Voss

transferred $5,690 from his trust account into J.K.'s burial

account.

       ¶10    Between      1987    and    1996,    Attorney        Voss    filed     annual

accountings with the Oneida County circuit court regarding his

guardianship for J.K.              In January of 1998, the circuit court
entered      an    order   waiving       any   further     annual     accountings       for

J.K., finding, based on Attorney Voss's representations, that it

was unlikely J.K. would have an estate worth more than $1,000 in

the foreseeable future.             After 1998, Attorney Voss periodically

filed affidavits with the circuit court advising the court that

J.K.'s assets remained under $1,000 in the preceding calendar

year.       Attorney Voss filed no further accounting until 2008.

       ¶11    On    April 16,      2008,       Attorney     Voss     filed      an   annual
accounting with the Oneida County circuit court showing that
                                               4
                                                                        No.     2012AP931-D



J.K.     had    assets       of    $10,102.06       as    of    December      31,     2007.

Following J.K.'s death, on December 8, 2008, Attorney Voss filed

a   summary     assignment         petition   showing       J.K.'s     assets       totaling

$14,145.93.

       ¶12     Since    the       circuit   court     had      believed      that    J.K.'s

assets had not exceeded $1,000 in any calendar year, the court

requested      an   explanation        from   Attorney         Voss   regarding      J.K.'s

assets.        At the direction of the circuit court, Oneida County

Register in Probate Susan Ohman also began communicating with

Attorney Voss asking for information about J.K.'s assets.

       ¶13     The circuit court subsequently obtained records from

the VA for all amounts paid to it on J.K.'s behalf and obtained

records      from   the      Social    Security       Administration          to    confirm

J.K.'s income from 1990 until the date of his death.                            Ms. Ohman

performed a "rough fraud audit" and determined there was more

than $40,000 in income attributable to J.K. that Attorney Voss

had not accounted for that should have been in Attorney Voss's

client trust account.               Ultimately, the circuit court concluded
that Attorney Voss had not accounted for $46,103.88 of J.K.'s

funds.

       ¶14     The circuit court removed Attorney Voss as a special

administrator of J.K.'s estate and appointed former Register in

Probate Maxine Meyer as special administrator of the estate.

After     demand       was    made     by     Meyer       pursuant      to    Wis. Stat.

§ 943.20(1)(b) in October of 2009, Attorney Voss sent two checks

to Meyer to reimburse J.K.'s estate.                     The first check was in the


                                              5
                                                                              No.    2012AP931-D



amount of $44,501.88, and the second check was in the amount of

$1,602.

       ¶15       In correspondence dated August 14, 2009, Attorney Voss

told Ohman that he did not keep good track of what money was

going in and out of his trust account, that he did not maintain

separate trust account ledgers for each client, and that his

recordkeeping problems were compounded by the fact that client

monies of his brother, Attorney Frederick Voss, were also in his

trust account.

       ¶16       On September 11, 2009, during a meeting with Ohman and

a   detective           from      the        Oneida   County       sheriff's        department,

Attorney Voss said that when he received a bankruptcy retainer

fee,   he     would         deposit      the    client's        retainer    check     into    his

business account and then, when he paid the bankruptcy filing

fee, he would pay it out of his trust account using J.K.'s

money.

       ¶17       In    December         of    2009,     Oneida     County     Circuit      Court

Judges       Mark      A.     Mangerson         and     Patrick     F.     O'Melia    filed     a
grievance         with      the    OLR,        asking     for     an     investigation       into

Attorney Voss's conduct while he was serving as the guardian of

the person and estate of J.K.                     On January 28, 2010, the OLR sent

Attorney Voss a letter providing notice of the investigation

into the J.K. matter.                 The OLR requested certain information and

records, including copies of Attorney Voss's banking and trust

account       records        for      the      time     period     he    served      as   J.K.'s

guardian.             Attorney Voss was unable to provide the OLR with
copies      of    all       bank    statements,          cancelled        checks     or   imaged
                                                  6
                                                                No.        2012AP931-D



checks, and deposit slips and items he was required to maintain

pursuant to SCR 20:1.15.

    ¶18     Although    Attorney     Voss      provided   the        OLR     with    a

transaction register for the requested time period, the register

failed to maintain a running balance, failed to document all

deposits and disbursements, failed to identify the client matter

regarding    all   deposits        and       disbursements,     and         included

inaccurate entries.

    ¶19     In a March 9, 2010 letter sent in response to the

OLR's   investigative    request     that      he   describe    in    detail        his

procedures for managing J.K.'s funds, Attorney Voss described a

process that looked at the overall balance in his trust account

compared to the overall disbursements, but that did not include

recording specific deposits and disbursements for J.K.

    ¶20     In a letter to the OLR dated August 22, 2011, Attorney

Voss explained his firm's procedures for handling client money

between January 1, 2004, and October 31, 2008.             He said:

    [M]ost of the money which was deposited into the
    client trust account was for work done on bankruptcy
    cases and a flat fee was agreed upon between myself
    and the client.    That fee included an amount to be
    paid for filing fees and an amount for the work to be
    done and was payable in full before the work would be
    done due to the fact that most bankruptcy clients are
    not good risks to pay attorney fees after their case
    is filed. The funds would be deposited in the amount
    necessary to pay the filing fees which was done in
    every bankruptcy case and then the remainder would be
    transferred at the time of deposit and denominated as
    cash in many instances and deposited into my personal
    account.   I was aware of what cases were being filed
    and made sure the amount necessary to pay the fees was
    in the account. At no time was there an insufficient

                                         7
                                                                            No.     2012AP931-D


       amount to       pay     any    filing        fees    received        from     any
       clients.
       ¶21    Attorney      Voss     also    stated        that    he   used      two     credit

cards to pay his clients' bankruptcy filing fees and that he

would look at the amounts forwarded to the U.S. Bankruptcy Court

during a billing period and would then issue a check to the

credit card company for payment of those amounts.

       ¶22    Attorney Voss told the OLR that Frederick J. Voss was

his brother and rented space from him but Frederick was not a

partner, employee, or member of the firm and received no money

from Attorney Voss.            However, Frederick Voss paid some of the

office expenses.            Attorney Voss and his brother practiced from

the same location, used the same letterhead, which stated "Voss

Law    Office,"     and     used     both    names    on     the    letterhead          without

indicating that Frederick Voss was not an employee, associate,

partner,      or    member     of     the     law    firm.          Funds      received      by

Frederick J. Voss relating to his representation of clients were

deposited and disbursed from the Voss Law Office trust account.

       ¶23    The   OLR     created     a     transaction         register        and     client
ledger reconstructing activity in Attorney Voss's client trust

account      between    January 1,          2004,    and    October 31,           2008.      The

OLR's reconstructed trust account ledger showed that Attorney

Voss's trust account was repeatedly and chronically out of trust

and but for J.K.'s funds in the account, the account would have

been    overdrawn      on     numerous       occasions.           The    OLR's      audit    of

Attorney Voss's trust account also revealed numerous instances
where   Attorney       Voss    disbursed       funds       from    the    trust      account,


                                              8
                                                              No.   2012AP931-D



including bankruptcy filing fees, before he deposited the source

of those funds for disbursement, thereby at least temporarily

using one client's funds for the benefit of another client.

    ¶24    The recreation of Attorney Voss's trust account showed

that, during the period of time he served as J.K.'s guardian,

Attorney   Voss   converted   at   least    $48,791.73   of    J.K.'s    funds

either for his own use or to cover expenditures for other client

matters.      Since   Attorney     Voss    repaid   $46,103.88      to   J.K.'s

estate, the OLR's audit revealed that Attorney Voss still owes

$2,077.18 in restitution to J.K.'s estate.

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

misconduct:

         [COUNT ONE] By failing to safeguard and hold in
    trust client and third party funds and by converting
    client funds to his own use or for the use of other
    clients and third parties, Voss violated former
    SCR 20:1.15(a),2 in effect prior to July 1, 2004,

    2
        SCR 20:1.15(a) (effective prior to July 1, 2004) provided:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    third persons that is in the lawyer's possession in
    connection with a representation or when acting in a
    fiduciary capacity.   Funds held in connection with a
    representation or in a fiduciary capacity include
    funds held as trustee, agent, guardian, personal
    representative of an estate, or otherwise. All funds
    of clients and third persons paid to a lawyer or law
    firm shall be deposited in one or more identifiable
    trust accounts as provided in paragraph (c).       The
    trust account shall be maintained in a bank, savings
    bank, trust company, credit union, savings and loan
    association or other investment institution authorized
    to do business and located in Wisconsin.     The trust
    account shall be clearly designated as "Client's
    Account" or "Trust Account" or words of similar
                                      9
                                                         No.    2012AP931-D


    current SCR 20:1.15(b)(1),3      in   effect   as   of    July 1,
    2004, and SCR 20:8.4(c).4

         [COUNT TWO] By, at such time as [J.K.'s]            expenses
    ceased to equal his income, failing to hold              [J.K.'s]
    assets in a separate fiduciary account or to             seek the
    court's guidance as to whether he should hold            [J.K.'s]
    assets in a separate fiduciary account, Voss             violated




    import. No funds belonging to the lawyer or law firm,
    except funds reasonably sufficient to pay or avoid
    imposition   of   account    service  charges,    may   be
    deposited in such an account.         Unless the client
    otherwise directs in writing, securities in bearer
    form shall be kept by the attorney in a safe deposit
    box in a bank, savings bank, trust company, credit
    union,   savings   and    loan   association   or    other
    investment institution authorized to do business and
    located in Wisconsin.    The safe deposit box shall be
    clearly designated as "Client's Account" or "Trust
    Account" or words of similar import.      Other property
    of a client or third person shall be identified as
    such and appropriately safeguarded. If a lawyer also
    licensed in another state is entrusted with funds or
    property    in   connection     with   an    out-of-state
    representation, this provision shall not supersede the
    trust account rules of the other state.
    3
        SCR 20:1.15(b)(1) (effective July 1, 2004) provides:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation.        All funds of
    clients and 3rd parties paid to a lawyer or law firm
    in connection with a representation shall be deposited
    in one or more identifiable trust accounts.
    4
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."

                                10
                                                      No.   2012AP931-D


     former SCR 20:1.15(c)(2),5 in effect prior to July 1,
     2004, and former SCR 20:1.15(c)(2),6 in effect between
     July 1, 2004 and December 31, 2009.


     5
       SCR 20:1.15(c)(2)   (effective   prior   to   July   1,   2004)
provided:

          A lawyer shall deposit all client funds in the
     account specified in paragraph (1) unless they are
     deposited in any of the following:

          a. A separate interest-bearing trust account for
     the particular client or client's matter, the interest
     on which shall be paid to the client, net of any
     transaction costs.

          b. A pooled interest-bearing trust account with
     sub-accounting by the financial institution, the
     lawyer or the law firm that will provide for
     computation of interest earned by each client's funds
     and the payment thereof to the client, net of any
     transaction costs.

          c. An    interest-generating  investment vehicle
     selected by the client and designated in specific
     written instructions from the client or authorized by
     the court or other tribunal, on which income shall be
     paid to the client or as directed by the court or
     other tribunal, net of any transaction costs.

          cg. An    income-generating investment  vehicle
     selected by the lawyer and approved by a court where
     the lawyer serves as guardian for a ward, under
     chs. 880 and 881, stats.

          cm. An    income-generating  investment   vehicle
     selected by the lawyer to protect and maximize the
     return on funds in a bankruptcy estate, which
     investment vehicle is approved by the trustee in
     bankruptcy and by a bankruptcy court order, consistent
     with 11 USC 345.

          d. A demand deposit or other non-interest-
     bearing account for funds that are neither nominal in
     amount nor expected to be held for a short term,
     provided the client specifically so directs.

                                11
                                                     No.   2012AP931-D


         [COUNT     THREE]     By     knowingly    making
    misrepresentations to the Oneida County Circuit Court
    regarding:   (i) [J.K.'s] assets; (ii) Voss' handling
    of [J.K.'s] assets; and (iii) that he represented

    6
       SCR 20:1.15(c)(2)  (effective   from   July    1,   2004    to
December 31, 2009) provided:

         A lawyer shall deposit all client funds in the
    account specified in par. (1) unless the funds are
    deposited in any of the following:

         a. a separate interest-bearing trust account for
    the particular client or client's matter, the interest
    on which shall be paid to the client, less any
    transaction costs;

         b. a pooled interest-bearing trust account with
    sub-accounting by the financial institution, the
    lawyer, or the law firm that will provide for
    computation of interest earned by each client's funds
    and the payment of the interest to the client, less
    any transaction costs;

         c. an    income-generating    investment vehicle
    selected by the client and designated in specific
    written instructions from the client or authorized by
    the court or other tribunal, on which income shall be
    paid to the client or as directed by the court or
    other tribunal, less any transaction costs;

         d. an    income-generating    investment vehicle
    selected by the lawyer and approved by a court for
    guardianship funds if the lawyer serves as guardian
    for a ward under chs. 880 and 881, stats.;

         e. an    income-generating   investment   vehicle
    selected by the lawyer to protect and maximize the
    return on funds in a bankruptcy estate, which
    investment vehicle is approved by the trustee in
    bankruptcy and by a bankruptcy court order, consistent
    with 11 USC 345; or

         f. a demand deposit or other non-interest-
    bearing account for funds that are neither nominal in
    amount nor expected to be held for a short term, if
    the client specifically so approves.

                               12
                                                  No.   2012AP931-D


    [J.K.] in the capacity as [J.K.'s] attorney with
    regard to a 2005 Watts hearing, when Voss knew or
    should have known that he was providing the court with
    an inaccurate information or impression regarding the
    same, and by failing to take reasonable steps to
    correct misrepresentations previously made to the
    court    once   Voss    knew   that    he   had   made
    misrepresentations,      Voss      violated     former
    SCR 20:3.3(a)(1) and (4),7 in effect prior to July 1,
    2007, current SCR 20:3.3(a)(1) and (3),8 in effect as
    of July 1, 2007, and SCR 20:8.4(c).

          [COUNT FOUR] By depositing or authorizing others
    to   deposit advanced costs paid by clients in his

    7
       SCR 20:3.3(a)(1) and (4) (effective prior to July 1, 2007)
provided that a lawyer shall not knowingly:

         (1) make a false statement of fact or law to a
    tribunal;

          . . . .

         (4) offer evidence that the lawyer knows to be
    false. If a lawyer has offered material evidence and
    comes to know of its falsity, the lawyer shall take
    reasonable remedial measures.
    8
       SCR 20:3.3(a)(1) and (3) (effective July 1, 2007) provides
that a lawyer shall not knowingly:

         (1) 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;

          . . . .

         (3) offer evidence that the lawyer knows to be
    false. If a lawyer, the lawyer's client, or a witness
    called by the lawyer, has offered material evidence
    and the lawyer comes to know of its falsity, the
    lawyer   shall  take   reasonable  remedial  measures,
    including, if necessary, disclosure to the tribunal.
    A lawyer may refuse to offer evidence, other than the
    testimony of a defendant in a criminal matter that the
    lawyer reasonably believes is false.

                               13
                                                     No.   2012AP931-D


    business or personal account, rather than his client
    trust account, Voss violated former SCR 20:1.15(a), in
    effect   prior   to   July    1,   2004   and   current
    SCR 20:1.15(b)(1), in effect as of July 1, 2004.

         [COUNT FIVE] By, after July 1, 2004, taking cash
    withdrawals from his client trust account and by
    taking cash from deposits to his client trust account,
    or authorizing others to do so, Voss violated
    SCR 20:1.15(e)(4)a.9

         [COUNT SIX] By, after July 9, 2006: (i) failing
    to maintain a pooled interest-bearing account; (ii)
    failing to participate in the Interest on Trust
    Accounts Program; and (iii) by depositing client and
    third party funds that are nominal in amount and/or
    intended to be held for a short period of time in a
    non-interest bearing account, Voss violated former
    SCR 20:1.15(c)(1),10 in effect as of July 1, 2004,
    current SCR 20:1.15(c)(1),11 in effect as of January 1,
    2010, and SCR 13.04.12


    9
       SCR 20:1.15(e)(4)a. provides that "[n]o disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"
    10
         SCR 20:1.15(c)(1) (effective July 1, 2004) provides:

         A lawyer who receives client funds shall maintain
    a pooled interest-bearing demand account for deposit
    of client or 3rd-party funds that are:

         a. nominal in amount or expected to be held for
    a short period of time; or

         b. not deposited in an       account   or   investment
    under SCR 20:1.15 (c) (2); or

         c. not eligible for an account or investment
    under SCR 20:1.15 (c) (2) because the client is a
    corporation or organization not permitted by law to
    maintain such an account or the terms of the account
    are not consistent with a need to make funds available
    without delay.
    11
         SCR 20:1.15(c)(1) (effective January 1, 2010) provides:

                                 14
                                             No.   2012AP931-D


    [COUNT SEVEN] By, prior to July 1, 2004, failing
to maintain complete records of trust account funds


      A lawyer or law firm who receives client or 3rd-
party funds that the lawyer or law firm determines to
be nominal in amount or that are expected to be held
for a short period of time such that the funds cannot
earn income for the benefit of the client or 3rd party
in excess of the costs to secure that income, shall
maintain a pooled interest-bearing or dividend-paying
draft   trust   account  in   an  IOLTA  participating
institution.
12
     SCR 13.04 provides:

     (1) An attorney shall participate in the program
as provided in SCR 20:1.15 unless:

     (a) The attorney certifies on the annual trust
account statement filed with the state bar that:

     1. Based on the attorney's current annual trust
account   experience    and   information from   the
institution in which the attorney deposits trust
funds, service charges on the account would equal or
exceed any interest generated; or

     2. Because of the nature of the attorney's
practice, the attorney does not maintain a trust
account; or

     (b) The board, on its own motion or           upon
application from an attorney, grants a waiver      from
participation in the program for good cause.

      (2) The    board   may  reimburse an   attorney
incurring service charges on an account established
under    SCR 20:1.15 (c) (1)  if    the charges   are
reasonably and necessarily related to the attorney's
participation in the program.

     (3) Refusal or neglect by an attorney          to
participate in the program, except as provided under
sub. (1), constitutes professional misconduct and may
be grounds for disciplinary action under the rules
governing   enforcement  of   attorneys   professional
responsibility.

                           15
                                                    No.   2012AP931-D


    and other property, by, after June 30, 2004 and before
    July 1,   2007,   failing   to   maintain   a   compliant
    transaction register, client ledgers, ledger for
    account fees and charges, deposit records, monthly
    statements and reconciliation reports, and by, after
    June 30, 2007, failing to maintain a compliant
    transaction register, client ledgers, ledger for
    account    fees    and    charges,    deposit    records,
    disbursement    records,     monthly    statements    and
    reconciliation    reports,     Voss    violated    former
    SCR 20:1.15(e),13 in effect prior to July 1, 2004,




    13
       SCR 20:1.15(e)   (effective   prior   to   July    1,   2004)
provided:

         Complete records of trust account funds and other
    trust property shall be kept by the lawyer and shall
    be preserved for a period of at least six years after
    termination of the representation.    Complete records
    shall include:   (i) a cash receipts journal, listing
    the sources and date of each receipt, (ii) a
    disbursements journal, listing the date and payee of
    each disbursement, with all disbursements being paid
    by check, (iii) a subsidiary ledger containing a
    separate page for each person or company for whom
    funds have been received in trust, showing the date
    and amount of each receipt, the date and amount of
    each disbursement, and any unexpended balance, (iv) a
    monthly schedule of the subsidiary ledger, indicating
    the balance of each client's account at the end of
    each month, (v) a determination of the cash balance
    (checkbook balance) at the end of each month, taken
    from the cash receipts and cash disbursement journals
    and a reconciliation of the cash balance (checkbook
    balance) with the balance indicated in the bank
    statement, and (vi) monthly statements, including
    canceled checks, vouchers or share drafts, and
    duplicate deposit slips.    A record of all property
    other than cash which is held in trust for clients or
    third persons, as required by paragraph (a) hereof,
    shall also be maintained.    All trust account records
    shall be deemed to have public aspects as related to
    the lawyer's fitness to practice.

                               16
                                                  No.   2012AP931-D


    former SCR 20:1.15(f)(1),14 in effect between July 1,
    2004    and     June   30,     2007,   and    current
                      15
    SCR 20:1.15(f)(1), in effect as of July 1, 2007.

         [COUNT EIGHT] By commingling personal funds or
    funds belonging to the Voss Law Office in his client
    trust account, Voss violated SCR 20:1.15(b)(3).16

         [COUNT NINE] By disbursing from his trust account
    the advanced payments of costs for clients, before
    their filing fees had been paid to the court, Voss
    violated SCR 20:1.15(b)(4).17

         [COUNT TEN] By: (i) holding Frederick J. Voss out
    as a partner, member, associate or employee of the
    Voss Law Office; and (ii) allowing Frederick J. Voss
    to hold himself out as a partner, member, associate or



    14
       SCR 20:1.15(f)(1) (effective between July 1, 2004 and
June 30, 2007) provided that "[c]omplete records of a trust
account that is a demand account shall include a transaction
register; individual client ledgers; a ledger for account fees
and charges, if law firm funds are held in the account pursuant
to sub. (b) (3); deposit records; disbursement records; monthly
statements; and reconciliation reports . . . ."
    15
       SCR 20:1.15(f)(1) (effective July 1, 2007) provides that
"[c]omplete records of a trust account that is a demand account
shall include a transaction register; individual client ledgers;
a ledger for account fees and charges, if law firm funds are
held in the account pursuant to sub. (b)(3); deposit records;
disbursement records; monthly statements; and reconciliation
reports . . . ."
    16
       SCR 20:1.15(b)(3) provides that "[n]o funds belonging to
the lawyer or law firm, except funds reasonably sufficient to
pay monthly account service charges, may be deposited or
retained in a trust account."
    17
       SCR 20:1.15(b)(4) provides that, "[e]xcept 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.

                               17
                                                                No.   2012AP931-D


    employee of the          Voss    Law   Office,    Voss       violated
    SCR 20:7.5(d).18

         [COUNT ELEVEN] By making misrepresentations to
    OLR during . . . the investigation of this matter,
    Voss   violated   SCR  22.03(2)   and   (6),19  via
    SCR 20:8.4(h).20
    ¶26    Attorney   Voss   filed    an   answer    to   the    complaint    on

May 29, 2012.    Robert E. Kinney was originally appointed referee


    18
       SCR 20:7.5(d) provides that "[l]awyers may state or imply
that they practice in a partnership or other organization only
when that is the fact."
    19
         SCR 22.03(2) and (6) provides:

         (2) 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.

           . . . .

         (6) 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.
    20
       SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."

                                     18
                                                                No.     2012AP931-D



in this matter.          On October 1, 2012, a motion for substitution

of referee was granted and John B. Murphy was appointed referee.

       ¶27    On May 9, 2013, a stipulation and no contest plea was

filed.       In the stipulation, Attorney Voss withdrew his answer to

the complaint and pled no contest to the 11 counts of misconduct

as set forth in the complaint.                 The parties jointly requested

the referee to file a report with this court finding facts based

on Attorney Voss's no contest plea and asked the referee to

consider the issue of the appropriate sanction.

       ¶28    The referee filed his findings and recommendation on

September 5, 2013.           Based on the stipulation and the facts set

forth in the OLR's complaint, the referee found that Attorney

Voss     engaged    in    the     11   counts     of   misconduct     alleged    in

complaint.

       ¶29    As to the appropriate sanction, the referee said that

the OLR made a good case for revocation since Attorney Voss has

been disciplined previously for trust account offenses and, in

spite of that discipline, has persisted in not changing his law
office practices.         The referee said, "Either Voss is incapable

of learning from his mistakes or simply indifferent to what the

Court or OLR thinks about how he runs his practice.                      Whatever

the case, strong action is needed to prevent future harm to

clients and the legal system."                 The referee further said that,

in addition to the trust account problems, Attorney Voss was

willing       to   mislead      the    court    with   misrepresentations       and

fabrications.       The referee went on to say:


                                          19
                                                              No.   2012AP931-D


         In spite of all of the above, it should be noted
    that Voss did, upon request, repay [J.K.'s] estate for
    the missing funds. Additionally, it appears that Voss
    did not use these funds for his own personal gain and
    that [J.K.] did not suffer directly from Voss'
    misbehavior.   Further, Voss ultimately "admitted" his
    mistake by withdrawing his Answer and entering a no
    contest plea to the allegations.
    ¶30    The referee said while he gave the OLR's request for

revocation careful consideration, he was not fully persuaded,

given the need for progressive discipline, that revocation was

required in this case.         The referee recommended that Attorney

Voss's license to practice law be suspended for a period of one

year;   that   he    be   ordered   to    pay   additional    restitution   of

$2,077.18 to J.K.'s estate; and that he be assessed the full

costs of this proceeding.           The referee also recommended that

before he is allowed to reinstate his license, Attorney Voss be

required to demonstrate that he has in place a proper trust

account consistent with supreme court rules.

    ¶31    The OLR has appealed, arguing that revocation is the

appropriate sanction for Attorney Voss's misconduct.                In support

of its argument, the OLR cites various cases including In re

Disciplinary        Proceedings      Against      Krombach,     2005 WI 170,

286 Wis. 2d 589, 707 N.W.2d 146, In re Disciplinary Proceedings

Against   Conmey,     2005 WI 166,       286 Wis. 2d 514,     706 N.W.2d 633,

and In re Disciplinary Proceedings Against Weigel, 2012 WI 124,

345 Wis. 2d 7, 823 N.W.2d 798.           The OLR says that similar to the

Weigel case, it is not entirely clear here whether Attorney Voss

may or may not have misappropriated J.K.'s funds specifically
for his own personal use.           The OLR says what is clear is that

                                         20
                                                        No.   2012AP931-D



Attorney Voss systematically, during the time he acted as J.K.'s

guardian, robbed Peter to pay Paul by utilizing J.K.'s funds in

his trust account to either pay for other clients' bankruptcy

fees or potentially pay his own attorney fees or office expenses

through the years.      The OLR says while Attorney Voss may not

have been proven to have engaged in an intentional scheme of

misappropriation, his behavior was, at a minimum, reckless.

       ¶32   The OLR notes that Attorney Voss has been sanctioned

by this court on two prior occasions and, as a result of his

public reprimand, was ordered to attend trust account school.

It says despite his previous discipline, Attorney Voss continued

to maintain a lackadaisical attitude about his trust account and

failed to maintain adequate trust account records.             The OLR

argues that progressive discipline, in the form of revocation of

Attorney Voss's license, is warranted in this case.

       ¶33   Attorney Voss argues that revocation is not warranted

and that the sanction imposed should be no greater than the one-

year   suspension   recommended   by   the   referee.   Attorney    Voss
admits that he paid some client fees from money in his trust

account that should have been attributable to J.K.'s account.

He says the amount of money incorrectly reported averaged about

$250 a month.    He says:

       Rather than characterize the behavior as reckless the
       Respondent   would  submit   that  the  behavior   was
       negligent to the extent that a more careful inspection
       of the accounting system would have eliminated this
       from happening. It is true that the Respondent should
       have known what the true amount in the account should
       be.   Unfortunately, that was not the case. . . . The

                                  21
                                                                       No.   2012AP931-D


      incremental amount of improperly transferring was not
      sufficient at any time to make the Respondent believe
      it was improper.
      ¶34   A    referee's     findings        of    fact   are    affirmed     unless

clearly erroneous.         Conclusions of law are reviewed de novo.

See    In   re     Disciplinary           Proceedings         Against        Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                        The court may

impose whatever sanction it sees fit regardless of the referee's

recommendation.          See   In    re   Disciplinary        Proceedings       Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
      ¶35   There is no showing that any of the referee's findings

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

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

violated all of the supreme court rules set forth above.

      ¶36   Revocation of an attorney's license to practice law is

the most severe sanction this court can impose, and is reserved

for the most egregious cases.               While Attorney Voss's misconduct

is serious, we do not agree that it rises to the level of

warranting revocation.         The cases cited by the OLR in support of

its   argument    that    revocation       is   an    appropriate       sanction    are
distinguishable.          In   Conmey,      286 Wis. 2d 514,           and    Krombach,

286 Wis. 2d 589, the attorneys made payments to themselves out

of trust funds.      In this case the referee said it did not appear

that Attorney Voss used J.K.'s funds for his personal gain.                          In

Weigel, the attorney's trust account ran a deficit ranging from

$100,000    to     $1,000,000        over       a    period       of    many    years.

345 Wis. 2d 7, ¶8.         The conduct here simply does not rise to
that level.

                                          22
                                                                              No.    2012AP931-D



       ¶37      In    In    Re    Disciplinary           Proceedings         Against     Raneda,

2012 WI 42, 340 Wis. 2d 273, 811 N.W.2d 412, this court imposed

a one-year suspension for 14 counts of misconduct, the majority

of   which      involved         trust       account    violations.           The    attorney's

misconduct included diverting client funds to his own use.                                     In

In   Re       Disciplinary        Proceedings          Against       Biester,       2013 WI 85,

350 Wis. 2d 707, 838 N.W.2d 79, this court also imposed a one-

year      suspension          for       29     counts       of    misconduct,          including

transferring          large      sums    of    money     from     the      attorney's     client

trust     account      to     pay    for      the     attorney's      personal       debts    and

office expenses.              We find Attorney Voss's situation to be more

closely akin to Raneda and Biester than to Weigel, Conmey or

Krombach, although because J.K. was a particularly vulnerable

client        and    Attorney       Voss's      misconduct          with     respect    to    his

handling of J.K.'s funds went on for a significant period of

time,     a    suspension         slightly       longer      than    the     one    imposed    in

Raneda and Biester is appropriate.

       ¶38      Wisconsin        does        adhere    to    a    system     of     progressive
discipline.          Attorney Voss has been licensed to practice law in

Wisconsin for nearly four decades.                           His disciplinary history

consists       of    one    private          reprimand      and   one      public    reprimand.

After careful consideration, we conclude that an eighteen-month

suspension of his license to practice law is an appropriate

sanction.           We agree with the referee that Attorney Voss should

be   required        to    pay    additional          restitution       in    the    amount    of

$2,077.18 to J.K.'s estate and that he be assessed the full
costs of this proceeding.                      We further agree with the referee
                                                 23
                                                                  No.     2012AP931-D



that,   as   a    condition   of    the    reinstatement     of     his    license,

Attorney Voss be required to demonstrate that he has in place a

proper trust account consistent with supreme court rules.

       ¶39   IT IS ORDERED that the license of Richard W. Voss to

practice law in Wisconsin is suspended for a period of eighteen

months, effective August 22, 2014.

       ¶40   IT IS FURTHER ORDERED that Richard W. Voss be required

to pay restitution in the amount of $2,077.18 to the estate of

J.K.

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

of this order, Richard W. Voss shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

       ¶42   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

       ¶43   IT   IS    FURTHER    ORDERED      that    compliance        with    all

conditions of this order is required for reinstatement.                            See

SCR 22.29(4)(c).
       ¶44   IT IS FURTHER ORDERED that, as a condition of the

reinstatement      of   his   license     to   practice    law    in    Wisconsin,

Richard W. Voss be required to demonstrate that he has in place

a proper trust account consistent with supreme court rules.

       ¶45   IT   IS    FURTHER    ORDERED     that    Richard W.       Voss     shall

comply with the provisions of SCR 22.26 concerning the duties of

an attorney whose license to practice law has been suspended.




                                          24
    No.   2012AP931-D




1
