                                                         2017 WI 53

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2015AP675-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Matthew R. Schwitzer, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Matthew R. Schwitzer,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST SCHWITZER

OPINION FILED:          June 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                         2017 WI 53
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.     2015AP675-D


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Matthew R. Schwitzer, Attorney at Law:


Office of Lawyer Regulation,                                        FILED
            Complainant,                                        JUN 1, 2017
      v.                                                          Diane M. Fremgen
                                                               Clerk of Supreme Court
Matthew R. Schwitzer,

            Respondent.




      ATTORNEY      disciplinary    proceeding.         Attorney's         license

suspended


      ¶1    PER CURIAM.       We review the report and recommendation

of Referee Jonathan V. Goodman that the license of Attorney

Matthew     R.   Schwitzer     be   suspended       for     six        months    for

professional misconduct and that Attorney Schwitzer pay the full

costs of this proceeding, which are $1,661.68 as of May 25,

2017.

      ¶2    After   careful    review   of   the    matter,       we    adopt    the
referee's findings of fact and conclusions of law.                        We agree
                                                                            No.       2015AP675-D



with    the     referee      that    a     six-month          suspension         of    Attorney

Schwitzer's         law    license   is     an      appropriate          sanction      for     his

professional misconduct.              We further agree that the full costs

of the proceeding should be assessed against Attorney Schwitzer.

       ¶3     Attorney      Schwitzer       was       admitted      to    practice       law    in

Wisconsin in 2007.               He practiced in Green Bay.                  His Wisconsin

law license was suspended in 2013 for failure to pay State Bar

dues and failure to file required trust account certifications.

His Wisconsin law license was also suspended in 2014 for failure

to     comply        with        continuing           legal        education          reporting

requirements.         On September 25, 2014, Attorney Schwitzer's law

license       was    additionally         suspended         for     willful       failure       to

cooperate       with        an     Office        of        Lawyer        Regulation       (OLR)

investigation concerning his conduct.                         His law license remains

suspended.

       ¶4     The OLR filed a complaint against Attorney Schwitzer

on April 6, 2015.             On July 13, 2015 the OLR filed an amended

complaint alleging five counts of misconduct.                                The complaint
alleged       that    on    February       4,       2014,     Attorney      Schwitzer          was

convicted in Brown County of unlawful phone use                                   –   threatens

harm, in violation of Wis. Stat. § 947.012(1)(a), a Class B

misdemeanor;         Possession      of    THC,       in    violation       of    Wis.    Stat.

§ 961.41(3g)(e), an unclassified misdemeanor; and Possession of

Cocaine/Coca,        in    violation       of    Wis.      Stat.    § 961.41(3g)(c),            an

unclassified misdemeanor.                 Other charges relating to possession

of     drug    paraphernalia,            narcotics,          and    illegally          obtained
prescription drugs were dismissed but read in.                            The Brown County
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circuit court withheld sentence and placed Attorney Schwitzer on

two years' probation, conditioned on thirty days in jail, to run

concurrently on each of the three counts.                            Attorney Schwitzer

was    also       ordered     to    comply     with        his    healthcare      provider's

recommendations, continue psychological and medical treatment,

take all prescription medications, surrender a firearm, and have

no contact with anyone who uses, sells, or possesses illegal

drugs.

       ¶5     On October 20, 2014, Attorney Schwitzer fell asleep or

lost consciousness while driving his car, drifted out of his

lane of travel, and sideswiped another driver's car.                              The police

officer      who    interacted       with      Attorney       Schwitzer     at     the   scene

observed that Attorney Schwitzer had an unsteady balance, was

shaking and sweating, his pupils were dilated, and he was having

a hard time forming sentences and was slurring his words.

       ¶6     When the officer asked Attorney Schwitzer to turn off

his car, the officer noticed there was a female passenger in the

car.        The    female    passenger       was      not    breathing.        The     officer
performed CPR until Fire and Rescue arrived.                              Fire and Rescue

administered Narcan to the passenger, at which time she regained

consciousness.               The    female      passenger          told    a      firefighter

transporting her to the hospital that she had snorted heroin in

Attorney      Schwitzer's          car   and    had        lost   consciousness.         Upon

searching         Attorney    Schwitzer's           car,    officers      found    a   plastic

baggie containing cocaine and a rolled up $20 bill which tested

positive for cocaine.


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                                                                   No.    2015AP675-D



      ¶7        On April 3, 2015, in Washington County circuit court,

Attorney Schwitzer pled guilty and was convicted of possession

of cocaine, as a party to a crime, an unclassified misdemeanor,

in violation of Wis. Stat. § 961.41(3g)(c).                 A second count for

possession of drug paraphernalia was dismissed but read in.                       The

Washington County circuit court sentenced Attorney Schwitzer to

five months in jail.

      ¶8        The   OLR's   amended    complaint      alleged    the     following

count      of    misconduct     with     respect   to    Attorney        Schwitzer's

convictions:

      Count 1:    By engaging in the conduct leading to his
      convictions   of   three  misdemeanors  in   State  v.
      Schwitzer, Brown County Case No. 2013 CF 1142, and one
      misdemeanor in State v. Schwitzer, Marinette County
      Case No. 2014 CF 1150, Attorney Schwitzer violated SCR
      20:8.4(b).1
      ¶9        The OLR's amended complaint also alleged that prior to

his August 2013 arrest, Attorney Schwitzer practiced law with

Attorneys Todd G. Simon and Timothy J. Feldhausen as part of the

law   firm      Schwitzer     Simon,    LLC.     Attorney   Schwitzer       and   his

brother, Kevan Schwitzer created a website used by the law firm.

Attorney Schwitzer's partners had no control or access to the

content of the website.           Following Attorney Schwitzer's arrest,

Attorneys       Simon   and    Feldhausen      negotiated   a     separation      from

Schwitzer Simon, LLC, which was completed in May 2014 by the

      1
       SCR 20:8.4(b) provides: "It is professional misconduct for
a lawyer to commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects."


                                          4
                                                                           No.     2015AP675-D



signing of a formal separation agreement.                      Before the separation

was complete, Attorneys Simon and Feldhausen had asked Attorney

Schwitzer    to    remove   their       information       from       the    website.         A

formal separation agreement signed in May 2014 required Attorney

Schwitzer to remove Simon and Feldhausen's information from the

website.

       ¶10   The   website,       as    controlled       by     Attorney          Schwitzer,

continued to operate and be accessible by the public following

Attorney     Schwitzer's     suspension          until    at       least    November       10,

2014.    Sometime between January 4, 2014, and August 11, 2014,

Attorney     Schwitzer      caused       the     website       to     be     modified       to

advertise a law firm called Matthew R. Schwitzer, LLC, of which

Attorney     Schwitzer      was    the       only   attorney.              There      is    no

registered Wisconsin limited liability company named Matthew R.

Schwitzer,     LLC,    or   any    similarly        named       company          other     than

Schwitzer Simon, LLC.

       ¶11   As of October 30, 2014, the website continued to state

that    Attorney      Schwitzer        was     admitted       to     practice        law    in
Wisconsin as a member of the Wisconsin Bar Association and was

also admitted to practice before the Supreme Court of Wisconsin.

As of that date, the website invited website visitors to "Call

today . . . for a free initial consultation."                                    The website

identified the address for Matthew R. Schwitzer, LLC, as P.O.

Box 8413, Green Bay, Wisconsin 54308, which was the same address

provided to the OLR by Attorney Schwitzer for communications

during the OLR's investigation.


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                                                                       No.    2015AP675-D



       ¶12       The   OLR's   amended       complaint      alleged    the    following

count of misconduct with respect to the website:

       Count 2:    By causing the website to be modified to
       hold Attorney Schwitzer out as an attorney admitted to
       practice law in Wisconsin at a time when his license
       to practice law was suspended, Attorney Schwitzer
       violated SCR 20:5.5(b)(2)2 and SCR 20:7.1(a)3
       ¶13       The   OLR's    amended        complaint      also      alleged       that

beginning         in   2013,   the     OLR    began    to     investigate       Attorney

Schwitzer in connection with the criminal charges filed against
him in Brown County.            At Attorney Schwitzer's request, the OLR

agreed to put its investigation on hold pending resolution of

the Brown County criminal case.                    In May 2014, after the OLR's

file       was    reopened,    an    OLR     investigator      wrote     to     Attorney

Schwitzer        inquiring     about    the       circumstances      surrounding       his

convictions.           Attorney      Schwitzer       failed    to     respond    to    the

investigator's initial letter, and he further failed to respond

to either a second letter sent by both certified and regular

mail or an order from this court requiring him to show cause in

writing why this court should not grant the OLR's motion seeking


       2
       SCR 20:5.5(b)(2) provides: "A lawyer who is not admitted
to practice in this jurisdiction shall not.. .Hold out to the
public or otherwise represent that the lawyer is admitted to the
practice of law in this jurisdiction."
       3
       SCR 20:7.1(a) provides: "A lawyer shall                      not make a false
or misleading communication about the lawyer                         or the lawyer's
services.   A   communication   is  false   or                        misleading  if
it...contains a material misrepresentation of                       fact or law, or
omits a fact necessary to make the statement                         considered as a
whole not materially misleading..."


                                              6
                                                                    No.    2015AP675-D



an order suspending his license to practice law for a willful

failure to cooperate with the OLR's investigation concerning his

conduct.      As noted above, on September 25, 2014, this court

granted    the    OLR's     motion   and       temporarily    suspended      Attorney

Schwitzer's law license.

    ¶14     The OLR's amended complaint stated the following count

with respect to Attorney Schwitzer's failure to cooperate with

the OLR's investigation into his conduct:

    Count 3:    By failing to provide the information
    requested by the OLR's May 12, 2014 correspondence,
    Attorney Schwitzer violated SCR 22.03(6),4 via SCR
    20:8.4(h).5
    ¶15     The     final   two   counts       of     misconduct   alleged    in   the

OLR's     amended    complaint       arose      out    of   Attorney      Schwitzer's

attempt to transfer funds to himself from his law firm's trust

account.     The amended complaint alleged that as of August 19,

2013, the date Attorney Schwitzer was arrested in Brown County,

Schwitzer Simon, LLC, maintained a client trust account at BMO

Harris Bank.        Attorneys Schwitzer, Simon, and Feldhausen were



    4
       SCR   22.03(6)   provides:  "In   the   course   of   the
investigation, the respondent's willful 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..."
    5
       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 22.03(2), SCR 22:03(6)..."


                                           7
                                                                      No.       2015AP675-D



the only people authorized to disburse money from or otherwise

access the trust account.

      ¶16    On August 20, 2013, while incarcerated in the Brown

County      Jail,     Attorney       Schwitzer         used    a    fellow       inmate's

contraband cell phone to access the trust account and initiated

a   transfer    of    $2,000       from   the    trust     account   to     a    personal

account belonging to Attorney Schwitzer.                      Attorney Simon and/or

Attorney Feldhausen learned of Attorney Schwitzer's attempt to

transfer trust account proceeds and caused BMO Harris Bank to

reverse the transaction.             In correspondence to the OLR, Attorney

Schwitzer admitted attempting to transfer funds from the trust

account to his personal account while incarcerated in the Brown

County Jail.         The OLR's investigation was unable to determine

whether Attorney Schwitzer used another inmate's telephone to

access the trust account by phone or whether he attempted to

transfer     funds    by     using   the     internet     connection       through      the

contraband      phone.             Pursuant       to     supreme      court          rules,

disbursements        from      a     trust       account      may    not        be    made
telephonically or by way of internet transactions.

      ¶17    The     OLR's    amended      complaint       alleged    the       following

counts of misconduct with respect to the attempted trust account

transfer:

      Count 4: By accessing his law firm's trust account
      from another inmate's contraband cell phone, Attorney
      Schwitzer made client and third party funds being held




                                             8
                                                           No.    2015AP675-D


    in trust by his firm vulnerable to third party access,
    in violation of SCR 20:1.15(b)(1).6

    Count 5:       By attempting [in violation of SCR
    20:8.4(a)7] to transfer funds to himself from his law
    firm's trust account by using a fellow inmate's
    contraband   cell   phone  Attorney   Schwitzer   either
    attempted   to   make   a disbursement    by   telephone
    transfer, in violation of SCR 20:1.15(e)(4)(b)8 or
    Attorney Schwitzer attempted to make a disbursement by
    internet    transaction,    in    violation    of    SCR
    20:1.15(e)(4)(c).9
    ¶18       On   October   10,   2016,   Attorney   Schwitzer   filed   an

answer   to    the   amended   complaint    admitting   virtually   all   of

allegations and stipulating that he be found in violation of the

supreme court rules as alleged in the five counts of misconduct

in the amended complaint.          Attorney Schwitzer further stipulated

    6
       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.

     SCR 20:1.15(b)(1) provided: "A lawyer shall hold in trust,
separate from the lawyer's own property, that property of
clients and third parties that is in the lawyer's possession in
connection with a representation."
    7
       SCR 20:8.4(a) provides:    "It is professional misconduct
for a lawyer to...violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce another to do
so, or do so through the acts of another."
    8
       SCR   20:1.15(e)(4)(b)   provided:   "No    deposits   or
disbursements shall be made to or from a pooled trust account by
a telephone transfer of funds."
    9
       SCR 20:1.15(e)(4)(c) provided: "A lawyer shall not make
deposits to or disbursements from a trust account byway of an
Internet transaction."


                                       9
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that an appropriate level of discipline to impose in response to

his misconduct was a six-month suspension of his license to

practice law in Wisconsin.

    ¶19     The referee issued his report and recommendation on

January 12, 2017.           The referee found that the OLR had met its

burden of proof by clear, satisfactory, and convincing evidence

that Attorney Schwitzer committed the five counts of misconduct

set forth in the OLR's amended complaint.                     The referee further

agreed    that   a   six-month        suspension       of   Attorney         Schwitzer's

license to practice law in Wisconsin was an appropriate sanction

for his misconduct.

    ¶20     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.
    ¶21     There is no showing that any of the referee's findings

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

further    agree     with    the    referee's        conclusions        of     law    that

Attorney Schwitzer violated the supreme court rules enumerated

above.

    ¶22     Upon careful review of the matter, we agree with the

referee's recommendation for a six-month suspension of Attorney

Schwitzer's license to practice law in Wisconsin.                            Although no
two disciplinary proceedings are precisely the same, a six-month
                                           10
                                                                     No.     2015AP675-D



suspension is generally consistent with the sanction imposed in

somewhat analogous cases.              For example, in In re Disciplinary

Proceedings      Against     Soldon,    2010    WI    27,    324     Wis. 2d 4,      782

N.W.2d 81, an attorney who was convicted of multiple counts of

retail theft and fleeing and eluding an officer, as well as

failing     to   cooperate     with     the    OLR's    investigation          of   her

conduct, received a six-month suspension.                   In addition, in In re

Disciplinary      Proceedings     Against      Meagher,       2003    WI     132,    266

Wis. 2d 18, 669 N.W.2d 733, an attorney who was convicted of

violating the federal Wire Wagering Act, 18 U.S.C. § 1084, also

received    a    six-month    suspension.        We    find    that     a    six-month

suspension is an appropriate sanction in this case as well.                           We

also agree that, consistent with our usual practice, Attorney

Schwitzer    should   be     required    to    pay    the    full    costs    of    this

proceeding.

    ¶23     IT IS ORDERED that the license of Matthew R. Schwitzer

to practice law in Wisconsin is suspended for a period of six

months, effective the date of this order.
    ¶24     IT IS FURTHER ORDERED that within 60 days of the date

of this order, Matthew R. Schwitzer shall pay to the Office of

Lawyer Regulation the costs of this proceeding.                        If the costs

are not paid within the time specified, and absent a showing to

this court of his inability to pay the costs within that time,

the license of Matthew R. Schwitzer to practice law in Wisconsin

shall remain suspended until further order of the court.

    ¶25     IT IS FURTHER ORDERED that, to the extent he has not
already done so, Matthew R. Schwitzer shall comply with the
                                         11
                                                                  No.   2015AP675-D



provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been suspended.

     ¶26    IT    IS   FURTHER      ORDERED    that     compliance      with     all

conditions of this order is required for reinstatement.                          See

22.28(3).10

     ¶27    IT IS FURTHER ORDERED that the temporary suspension of

Attorney    Matthew    R.    Schwitzer's      license      to   practice   law   in

Wisconsin, imposed on September             25, 2014 due to his willful

failure    to    cooperate   with    the    Office    of   Lawyer   Regulation's

investigation in this matter, is hereby lifted.




     10
       In   addition   to   obtaining  reinstatement  from   the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Schwitzer will also be
required to complete the procedures for reinstatement from the
administrative suspensions currently in effect for failure to
comply with the mandatory CLE reporting requirements, for
failure to pay applicable bar dues and assessments, and for
failure to file a trust account certificate.


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    No.   2015AP675-D




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