                                                         2018 WI 41

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP1899-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Brandon Buchanan, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Brandon Buchanan,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST BUCHANAN

OPINION FILED:          April 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                       2018 WI 41
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2017AP1899-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Brandon Buchanan, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
           Complainant,
                                                             APR 19, 2018
      v.
                                                                Sheila T. Reiff
                                                             Clerk of Supreme Court
Brandon Buchanan,

           Respondent.




      ATTORNEY    disciplinary    proceeding.         Attorney's         license

suspended.



      ¶1   PER   CURIAM.   We    review   Referee      Allan      E.    Beatty's

recommendation that the court declare Attorney Brandon Buchanan

in default and suspend his Wisconsin law license for a period of

60 days for professional misconduct in connection with his work

on one client matter and his non-cooperation with the Office of

Lawyer Regulation's (OLR) investigation into that misconduct.

The referee also recommended that Attorney Buchanan be required
to make restitution to a former client in the amount of $335,
                                                                         No.     2017AP1899-D



and    to   pay       the   full    costs    of    this    proceeding,         which      total

$410.44 as of February 12, 2018.

       ¶2        Because     no    appeal    has    been     filed,      we    review       the

referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).

After conducting our independent review of the matter, we agree

with the referee that, based on Attorney Buchanan's failure to

answer the complaint filed by the OLR, the OLR is entitled to a

default judgment.            We also agree with the referee that Attorney

Buchanan's professional misconduct warrants a 60–day suspension

of    his   Wisconsin        law    license.        Finally,       we    agree       with   the

referee that Attorney Buchanan should be ordered to pay the full

costs of the proceeding, as well as $335 in restitution.

       ¶3        Attorney     Buchanan      was    admitted       to    practice      law    in

Wisconsin in 2014.                 His law license is currently subject to

administrative              and      temporary       suspensions.                    It      is

administratively suspended due to his failure to pay mandatory

bar dues, failure to file a trust account certification, and

failure to comply with continuing legal education requirements.
It is temporarily suspended due to his failure to cooperate in

the OLR's investigation of this matter.

       ¶4        On   September      28,    2017,   the     OLR    filed       the    current

complaint against Attorney Buchanan.                      The complaint alleges five

counts      of    professional       wrongdoing.           The    following      facts      are

taken from the OLR's complaint.

       ¶5        In 2014, S.L.L. filed for divorce from her husband.

In September 2015, Attorney Daniel R. Freund referred S.L.L. to
Attorney Buchanan to represent her and her husband, K.C.L., in a
                                              2
                                                                              No.     2017AP1899-D



Chapter 7 bankruptcy action.                      In November 2015, the L.s hired

Attorney Buchanan and paid him a $1,835 advanced fee, which

included     funds       to      pay    the           $335     bankruptcy         filing         fee.

Consistent    with     a      request        by       S.L.L.,       Attorney      Freund     asked

Attorney    Buchanan        to   keep    him          informed       about     the    bankruptcy

proceedings in light of the ongoing divorce action.

       ¶6   Attorney        Buchanan         did      not     deposit      the    L.s'     payment

into a trust account; indeed, he did not have a client trust

account.     The retainer agreement between the L.s and Attorney

Buchanan stated that he would deposit the fee into his general

account.

       ¶7   Attorney Buchanan failed to keep in regular contact

with the L.s.          He did not respond to the L.s' requests for

information for a number of months after his retention.                                    In late

February 2016, Attorney Buchanan communicated with the L.s, but

his    responsiveness         was   short-lived.                In    May    2016,     he    again

stopped responding to the L.s' requests for information, which

included e-mails and telephone calls.
       ¶8   Attorney        Buchanan         performed         some       legal     work    in   the

matter, but never filed a Chapter 7 bankruptcy petition for the

L.s.

       ¶9   In    June      2016,      the    L.s       fired       Attorney      Buchanan       and

instructed       him   to     deliver         their          file    to     Attorney       Freund.

Attorney Buchanan did not deliver the L.s' file to Attorney

Freund, or refund any unearned portion of their advanced fee, or

provide them with an accounting.


                                                  3
                                                                       No.     2017AP1899-D



       ¶10     Both Attorney Freund and S.L.L. filed grievances with

the OLR against Attorney Buchanan.                    The OLR wrote to Attorney

Buchanan       informing     him    of   the      grievances     and     requesting      a

response.          Attorney Buchanan never responded.                In January 2017,

the OLR personally served Attorney Buchanan at his home address

with       correspondence    from    the     OLR      asking   him     to     respond   to

Attorney Freund's and S.L.L.'s grievances.                        Attorney Buchanan

did not respond.

       ¶11     In February 2017, based on an OLR motion, this court

ordered Attorney Buchanan to show cause why his license should

not    be     suspended     for    failure       to   cooperate      with      the   OLR's

investigation.         Attorney Buchanan did not respond.                    On April 10,

2017,       this    court   temporarily          suspended     Attorney        Buchanan's

license.

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

misconduct with respect to Attorney Buchanan's representation of

the L.s.

       Count One:   By depositing the L.s' advanced fee into
       his general account and not holding it in trust,
       without   providing  any   information  regarding  fee
       arbitration, the Wisconsin Lawyers' Fund for Client
       Protection, the L.s' ability to request a refund of
       any unearned fees, or an accounting, Attorney Buchanan
       violated former SCR 20:1.15(b)(4).1

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

                                                                              (continued)
                                             4
                                                      No.   2017AP1899-D


    Count Two:    By failing to keep the L.s reasonably
    informed regarding the status of the Chapter 7
    bankruptcy matter, and by failing to respond to the
    L.s' requests for information, Attorney Buchanan
    violated SCR 20:1.4(a)(3) and (4).2

    Count Three:      By failing to file         a Chapter 7
    bankruptcy petition on behalf of the         L.s, Attorney
    Buchanan violated SCR 20:1.3.3

    Count Four:   By failing to refund any portion of the
    advanced fee and by failing to deliver the L.s' file
    to   Attorney   Freund,  Attorney  Buchanan   violated
    SCR 20:1.16(d).4


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

         Except as provided in par. (4m) unearned fees and
    advanced payments of fees shall be held in trust until
    earned by the lawyer, and withdrawn pursuant to sub.
    (g).   Funds advanced by a client or 3rd party for
    payment of costs shall be held in trust until the
    costs are incurred.
    2
        SCR 20:1.4(a) provides:    "a lawyer shall:

        . . .

     (3) keep the client reasonably informed about the status of
the matter;

     (4) promptly comply with reasonable requests by the client
for information."
    3
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    4
        SCR 20:1.16(d) provides:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    to protect a client's interests, such as giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
    been earned or incurred. The lawyer may retain papers
                                                    (continued)
                                   5
                                                                 No.    2017AP1899-D


      Count Five:    By willfully failing to provide the OLR
      with a written response to the OLR's investigation,
      Attorney   Buchanan    violated   SCR   22.03(2)5  and
      SCR 22.03(6), enforced via SCR 20:8.4(h).7
                   6


      ¶13    On   November    9,   2017,     the   OLR   filed    a    motion     for

default judgment asking the referee to determine that the OLR

had   properly    served     Attorney    Buchanan    with   its       complaint    by

personal service, and that Attorney Buchanan had defaulted by

failing to timely file an answer to the complaint.                      The motion



      relating to     the    client     to   the   extent   permitted      by
      other law.
      5
          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
      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
       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."
      7
       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)."


                                         6
                                                                                 No.    2017AP1899-D



sought   an       order   for     default          judgment       and     the     issuance       of   a

report making findings of fact and conclusions of law consistent

with the allegations in the complaint.

    ¶14       The referee issued an order advising the parties that

the OLR's default judgment motion would be considered at an

upcoming      scheduling         conference.                  Attorney      Buchanan       did    not

participate in the scheduling conference.

    ¶15       The    referee      filed           his    report      on    January       24,   2018,

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

judgment.          The    referee       deemed          the    allegations        of     the   OLR's

complaint established.                The referee recommended that this court

suspend Attorney Buchanan's Wisconsin law license for 60 days;

order him to pay the full costs of this proceeding; and order

him to pay $335 in restitution to the L.s.

    ¶16       Attorney Buchanan has not filed an appeal from the

referee's report and recommendation.                             Accordingly, our review

proceeds pursuant to SCR 22.17(2).

    ¶17       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.

    ¶18       We    agree    with           the    referee       that      Attorney       Buchanan

should   be       declared       in    default.               Although      the    OLR    effected
personal      service       of        its     complaint,          and      although       Attorney
                                                   7
                                                                   No.       2017AP1899-D



Buchanan was given notice of the hearing on the OLR's motion for

default judgment, he failed to appear or present a defense.                            He

has,    therefore,      defaulted.          We    also    accept      the     referee's

findings of fact based on the allegations of the complaint, and

agree     with    the      referee    that       those     findings         support    a

determination of misconduct on the five counts alleged in the

OLR's complaint.

       ¶19    We further agree that a 60-day suspension of Attorney

Buchanan's       license     to     practice      law     in    Wisconsin        is    an

appropriate      sanction     for    his    misconduct.         Although        no    two

disciplinary matters are precisely the same, a 60-day suspension

is generally consistent with the sanction imposed in somewhat

similar      cases.     See,      e.g.,    In    re     Disciplinary        Proceedings

Against Kingsley, 2006 WI 5, 287 Wis. 2d 91, 708 N.W.2d 321 (60-

day suspension for six counts of misconduct, including failing

to hold client's retainer in client trust account, failing to

file two lawsuits on client's behalf, and failing to respond to

multiple      investigative       letters       from    OLR);   see      also    In    re
Disciplinary      Proceedings        Against      Collins,      2004     WI     9,    268

Wis. 2d 441, 674 N.W.2d 566 (60-day suspension for eight counts

of misconduct, consisting of two counts of neglect, two trust

account violations, two instances of failing to cooperate with

OLR investigations, one count of disobeying a court order, and

one count of failing to keep a client reasonably informed).

       ¶20    As is our usual practice, we deem it appropriate to

order Attorney Buchanan to pay the full costs of the proceeding.
See SCR 22.24(1m).
                                           8
                                                                      No.    2017AP1899-D



       ¶21    As     to     the      issue   of     restitution,        the     referee

recommended, consistent with the OLR's request in its complaint,

that     this      court    order     Attorney     Buchanan      to    pay     $335    in

restitution to the L.s.               This amount represents the portion of

the funds that Attorney Buchanan received from the L.s——the $335

designated for filing fees——that he clearly neither earned nor

expended      for    its     designated      purpose.       We    agree      with     this

recommendation.

       ¶22    IT IS ORDERED that the license of Brandon Buchanan to

practice law in Wisconsin is suspended for a period of 60 days,

effective the date of this order.

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

of   this    order,       Brandon    Buchanan     shall   pay    to   the    Office    of

Lawyer      Regulation       the     costs   of   this    proceeding,        which     are

$410.44.

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

of this order, Brandon Buchanan shall make restitution in the

amount of $335 to S.L.L. and K.C.L.
       ¶25    IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

       ¶26    IT    IS     FURTHER    ORDERED     that    Brandon     Buchanan      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.




                                             9
                                                                 No.    2017AP1899-D



       ¶27   IT    IS    FURTHER   ORDERED     that     compliance      with     all

conditions of this order is required for reinstatement.                    See SCR

22.28(2).

       ¶28   IT    IS    FURTHER   ORDERED     that     the     April   10,    2017

temporary suspension of Brandon Buchanan's license to practice

law in Wisconsin, due to his willful failure to cooperate with

the OLR's grievance investigation in this matter, is lifted.

       ¶29   IT    IS    FURTHER    ORDERED     that      the     administrative

suspension    of    Brandon     Buchanan's    license    to     practice   law    in

Wisconsin, due to his failure to pay mandatory bar dues, failure

to file a trust account certification, and failure to comply

with   continuing       legal   education    requirements,       will   remain    in

effect until each reason for the administrative suspension has

been rectified, pursuant to SCR 22.28(1).




                                       10
    No.   2017AP1899-D




1
