                                                         2017 WI 89

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2016AP1877-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Robert J. Baratki, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Robert J. Baratki,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST BARATKI

OPINION FILED:          October 3, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                      2017 WI 89
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.     2016AP1877-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Robert J. Baratki, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
            Complainant,                                       OCT 3, 2017
       v.                                                        Diane M. Fremgen
                                                              Clerk of Supreme Court
Robert J. Baratki,

            Respondent.




       ATTORNEY   disciplinary      proceeding.        Attorney's         license

suspended.


       ¶1   PER CURIAM.       We review Referee James J. Winiarski's

recommendation that the court declare Attorney Robert J. Baratki

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

60 days for his misconduct in two client matters, his appearance

in numerous client matters while his license to practice law was

suspended, and his non-cooperation with the Office of Lawyer

Regulation's (OLR) investigation into his conduct.                  The referee

also   recommended     that   Attorney   Baratki    be    required       to    make
restitution to a former client in the amount of $487.50, and to
                                                                             No.        2016AP1877-D



pay the full costs of this proceeding, which total $1,428.93 as

of June 13, 2017.

       ¶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 Baratki's failure to

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

default judgment.            However, we disagree with the referee that

Attorney Baratki's professional misconduct warrants only a 60-

day    suspension.            We       conclude,       instead,       that         a     six-month

suspension         is   warranted.          We       agree    with     the     referee          that

Attorney Baratki should be ordered to pay the full costs of the

proceeding, as well $487.50 in restitution.

       ¶3        Attorney    Baratki       was       admitted    to     practice           law    in

Wisconsin in 1990.           He has twice been privately reprimanded.                             In

2006, he was privately reprimanded for engaging in a consensual

sexual relationship with his client when he did not have such a

relationship with the client prior to the establishment of their
attorney-client             relationship,             in      violation            of       former

SCR 20:1.8(k)(2).           See Private Reprimand No. 2006-20 (electronic

copy                                        available                                             at

https://compendium.wicourts.gov/app/raw/001926.html).                                    In 2014,

he was privately reprimanded for:                      (1) transmitting a letter to

opposing         counsel    at     a   time   his      license       was      suspended          for

noncompliance with mandatory continuing legal education (CLE)

requirements, in violation of SCR 20:8.4(f); and (2) acting on
behalf      of    clients,       including       appearances      in    court,           during    a
                                                 2
                                                                        No.     2016AP1877-D



period when his license was suspended for noncompliance with CLE

requirements, in violation of SCR 31.10(1), enforced via SCR

20:8.4(f).        See Private Reprimand No. 2014-4 (electronic copy

available                                                                                    at

https://compendium.wicourts.gov/app/raw/002644.html).

      ¶4     Attorney Baratki's law license is currently subject to

administrative           and        temporary           suspensions.                It      is

administratively suspended for failure to comply with mandatory

CLE reporting requirements.                It is temporarily suspended due to

his willful failure to cooperate with OLR investigations into

his   conduct.        See      Office      of       Lawyer   Regulation       v.    Baratki,

2016XX1482-D       and    2016XX1830-D,              unpublished       orders       (S.    Ct.

December 14, 2016 and February 13, 2017, respectively).

      ¶5     On   September         28,    2016,       the    OLR   filed     the    current

complaint against Attorney Baratki.                     The complaint alleges nine

counts of professional wrongdoing, divided into three categories

of misconduct. The following facts are taken from the OLR's

complaint.
                              Client K.D. (Counts 1-4)

      ¶6     In February 2014, K.D. retained Attorney Baratki to

represent her in a divorce proceeding.

      ¶7     Beginning         in   April       2014,        Attorney    Baratki          began

sending flirtatious, and sometimes sexual, text messages to K.D.

In April 2014, Attorney Baratki sent K.D. a text message that

read,   "I   forgot      to    tell       you   yesterday       your    top    was    really

pretty," and, "You[] are so bad."                     When K.D. responded, "I think
it is your imagination," Attorney Baratki replied, "Nope, it was
                                                3
                                                                      No.     2016AP1877-D



you and your abs."            In May 2014, Attorney Baratki texted K.D. to

suggest that she "could stop over for a 10 or 15 minute pawing

before [K.D.'s daughter] stops over."                      Attorney Baratki later

texted such appeals as, "Are you ignoring me?" and, "You don't

love me anymore."            Attorney Baratki also bragged to K.D. about

how   many      women   he    had    been    with,    suggested   that       she    should

"date," and forecasted her sexual predilections.                          In one of his

meetings with K.D., Attorney Baratki lifted her shirt and kissed

her abdominal area.

      ¶8        In   December       2014,    K.D.     retained    new       counsel      and

Attorney Baratki's flirtatious communications ended.

      ¶9        In July 2015, the OLR sent Attorney Baratki notice of

a   formal investigation asking him to respond to a grievance

filed      by    K.D.        The    OLR     requested    copies      of     all    of    his

communications with K.D., as well as a complete copy of his

file.       Although Attorney Baratki provided a response to                             the

OLR's investigative request, he did not provide the OLR with

copies of his communications with K.D., or a complete copy of
his file.        After another written request from the OLR for a copy

of these documents, Attorney Baratki provided what he claimed

was a copy of all text messages pertaining to K.D.'s grievance.

This claim was not true; Attorney Baratki omitted several text

exchanges.           When the OLR wrote to Attorney Baratki requesting

copies of the omitted text messages, he failed to respond.                              When

the   OLR       wrote   to   Attorney       Baratki     requesting    a     response      to

K.D.'s allegation that he had lifted her shirt and kissed her
abdominal area, he failed to respond.
                                              4
                                                           No.    2016AP1877-D



     ¶10     Based on the course of conduct described above, the

OLR alleged in its complaint that Attorney Baratki represented

K.D. despite a significant risk that his representation would be

materially limited by his personal interest, in violation of

SCR 20:1.7(a)(2)1 (Count 1); engaged in harassment on the basis

of sex, in violation of SCR 20:8.4(i)2 (Count 2); violated that

portion of the attorney's oath which requires abstention from

all offensive personality, in violation of SCR 20:8.4(g)3 and

SCR 40.154    (Count   3);   and   failed   to   timely   provide   relevant

information during the course of the OLR's investigation, in

violation of SCR 22.03(2) and SCR 22.03(6),5 enforced through SCR

20:8.4(h)6 (Count 4).


     1
         SCR 20:1.7(a)(2) provides:

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

          (2) there is a significant risk that the
     representation of one or more clients will be
     materially limited by the lawyer's responsibilities to
     another client, a former client or a third person or
     by a personal interest of the lawyer.
     2
       SCR 20:8.4(i) provides:    "It is professional misconduct
for a lawyer to harass a person on the basis of sex, . . .."
     3
       SCR 20:8.4(g) provides:    "It is professional misconduct
for a lawyer to violate the attorney's oath."
     4
       SCR 40.15, the attorney's oath, provides in part:             "I will
abstain from all offensive personality . . .."
     5
         SCR 22.03(2) and (6) provides:

                                                                 (continued)
                                      5
                                                                 No.    2016AP1877-D



                            Client T.T. (Counts 5-6)

    ¶11     In     June     2013,    T.T.       retained   Attorney    Baratki    to

represent her in a divorce proceeding.                 Attorney Baratki failed

to appear at a March 17, 2015 scheduling conference.                      On March

31, 2015, Attorney Baratki informed the circuit court that he no

longer represented T.T.             Attorney Baratki did not file a notice

of withdrawal, did not request permission from the court                          to

withdraw,    and      did   not     give    T.T.    reasonable   notice    or    the

opportunity      to    obtain       substitute      counsel.     Following       his



         (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 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.
    6
       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(6),   or
SCR 22.04(1)."


                                            6
                                                               No.     2016AP1877-D



withdrawal,       Attorney   Baratki    did    not   provide    T.T.     with   an

accounting of his time or the services provided.

      ¶12    After T.T. filed a grievance with the OLR, Attorney

Baratki provided the OLR with an accounting showing a balance

due to T.T. in the amount of $487.50, which remains unpaid.

      ¶13    Based on the course of conduct described above, the

OLR alleged in its complaint that Attorney Baratki failed to act

with reasonable diligence and promptness in representing T.T.,

in violation of SCR 20:1.37 (Count 5); and failed to take proper

steps upon termination of the representation to protect T.T.'s

interests, in violation of SCR 20:1.16(d)8 (Count 6).

                  Practicing While Suspended (Counts 7-9)

      ¶14    On September 30, 2015, the State Bar of Wisconsin sent

Attorney Baratki       a certified letter advising him                that if he

failed to pay his fiscal 2016 State Bar dues, as well as sign a

trust account certification, by 5:00 p.m. on October 31, 2015,

he   would   be    suspended   from    the    practice   of    law.      Attorney

Baratki personally signed the receipt for the certified letter.
Attorney Baratki failed to pay his bar dues or sign the trust

account certification by the October 31, 2015 deadline.


      7
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
      8
       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
 . . . refunding any advance payment of fee or expense that has
not been earned or incurred."


                                        7
                                                                        No.       2016AP1877-D



    ¶15     On November 2, 2015, Attorney Baratki sent the State

Bar a check for the dues owed, as well as for a late fee and a

reinstatement fee.        The State Bar received the check on November

5, 2015.     However, Attorney Baratki failed to submit a signed

trust account certification to the State Bar.

    ¶16     On November 6, 2015, the State Bar advised Attorney

Baratki    that    his    law   license          had   been     suspended,         effective

October 31, 2015, for "failure to pay State Bar dues and Supreme

Court Board assessments as well as failure to comply with trust

account certification requirements."

    ¶17     Over    the   next       several      weeks,      while    his        license   to

practice law was suspended, Attorney Baratki either appeared in

court or filed documents in 15 case matters.                           Attorney Baratki

also met with a number of his clients while his law license was

suspended.

    ¶18     After     receiving        a    letter       from    the     State       Bar    on

November 23, 2015, regarding his suspension, Attorney Baratki

contacted the State Bar and was told that he had failed to
submit a signed trust account certification.                          Attorney Baratki

faxed a signed certification to the State Bar, and the State Bar

reinstated his license on November 24, 2015.

    ¶19     On     December     3,     2015,       the    OLR    sent     a       notice    of

investigation       to    Attorney         Baratki,      requesting           a    response.

Attorney Baratki failed to respond.

    ¶20     Attorney Baratki later telephoned the OLR to request a

response extension through             February 12, 2016.                 He       failed to
respond by that deadline.
                                             8
                                                             No.   2016AP1877-D



    ¶21     Attorney Baratki eventually submitted a response to

the OLR on March 31, 2016, after this court issued an order to

show cause why his license should not be suspended due to his

failure to cooperate with the OLR's investigation.

    ¶22     Based on the course of conduct described above, the

OLR alleged in its complaint that Attorney Baratki failed to

comply   with    the    trust   account    certification     requirement,   in

violation of former SCR 20:1.15(i)(l)9 (Count 7); engaged in the

practice    of   law    while    his   law   license   was    suspended,    in

violation   of    SCR    22.26(2),10   enforceable     via   SCR   20:8.4(f)11

    9
       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.

    Former SCR 20:1.15(i)(1) provided:

         A member of the state bar of Wisconsin shall file
    with the state bar of Wisconsin annually, with payment
    of the member's state bar dues or upon any other date
    approved by the supreme court, a certificate stating
    whether the member is engaged in the practice of law.
    If the member is practicing law, the member shall
    state the account number of any trust account, and the
    name of each financial institution in which the member
    maintains the trust account . . ..
    10
         SCR 22.26(2) provides:

         An attorney whose license to practice law is
    suspended or revoked or who is suspended from the
    practice of law may not engage in this state in the
    practice of law or in any law work activity
    customarily done by law students, law clerks, or other
    paralegal personnel, except that the attorney may
    engage in law related work in this state for a
                                                    (continued)
                                       9
                                                              No.        2016AP1877-D



(Count 8); and failed to timely provide information during the

course of the OLR's investigation, in violation of SCR 22.03(2),

enforceable via SCR 20:8.4(h) (Count 9).

                              Default Proceedings

      ¶23   According to the OLR's motion for default, to which

Attorney Baratki did not respond, the OLR made multiple attempts

to serve Attorney Baratki with the complaint and an order to

answer.     On three occasions in November 2016, a process server

retained    by   the    OLR   attempted,   unsuccessfully,        to     personally

serve Attorney Baratki with the complaint and order to answer at

his address on file with the State Bar.                 In December 2016, the

OLR   mailed     the    complaint   and    order   to    answer     to     Attorney

Baratki's address on file           with the State Bar, via certified

mail.

      ¶24   Attorney Baratki failed to file an answer.                 In January

2017, the OLR filed a default motion.

      ¶25   According to the referee's report, after the OLR filed

the default motion, the OLR's counsel was contacted by a lawyer
who   stated     that   Attorney    Baratki   might      retain   him      in   this

matter.     This possibility did not come to pass, however, and

Attorney Baratki remained unrepresented.


      commercial employer itself not engaged in the practice
      of law.
      11
       SCR 20:8.4(f) provides:   "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."


                                      10
                                                                        No.    2016AP1877-D



    ¶26     The referee noticed and held a hearing on the OLR's

default    motion.        Attorney     Baratki       failed      to    appear    for    the

hearing.

    ¶27     The    referee     issued    an      order    recommending         that     this

court grant the OLR's             default     motion.          Noting that Attorney

Baratki    had    contacted     a    lawyer      about    the     possibility      (never

realized) of representing him in this case, the referee found

that Attorney Baratki was aware of the OLR's complaint and had

chosen not to answer it.

    ¶28     The referee subsequently filed a report finding the

facts as alleged in the OLR's complaint and concluding that

Attorney Baratki had committed each of the nine alleged counts

of misconduct.           Based on the conclusions of misconduct, the

referee    recommended        that    Attorney         Baratki's       law    license    be

suspended    for    60    days.       The     referee      also       recommended      that

Attorney    Baratki      be   ordered    to      pay     the    full    costs    of    this

matter, as well as restitution to T.T. in the amount of $487.50.

    ¶29     Attorney      Baratki     did     not    appeal     from     the    referee's
report and recommendation.            Thus, we proceed with our review of

the matter pursuant to SCR 22.17(2).                       We review a referee's

findings of fact subject to the clearly erroneous standard.                             See

In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,

¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                      We review the referee's

conclusions of law de novo.             Id.         We determine the appropriate

level of discipline independent of the referee's recommendation.

See In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
                                            11
                                                                             No.     2016AP1877-D



       ¶30    We agree with the referee that Attorney Baratki should

be   declared       in     default.         Although       the    OLR    made        reasonably

diligent attempts to serve him, and although Attorney Baratki

had sufficient notice of this matter to contact a lawyer about

the possibility (never realized) of representing him, Attorney

Baratki failed to appear or present a defense.                               Accordingly, we

deem it appropriate to declare him in default.                               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 nine counts alleged

in the OLR's complaint.

       ¶31    However, we disagree with the referee's recommendation

that   this    court        impose    a     60-day       license    suspension.                 This

recommended sanction is too light.

       ¶32    Attorney Baratki's first category of misconduct——his

inappropriate statements to and behavior toward K.D.——by itself

justifies      a        suspension    longer       than     60     days.            In     In     re

Disciplinary            Proceedings       Against        Kratz,     2014       WI        31,     353
Wis. 2d 696, 851 N.W.2d 219, we suspended a prosecutor, with no

previous      disciplinary        history,         for    four     months          for    sending

unsolicited,        sexually      suggestive        text    messages         to     a    domestic

abuse crime victim, as well as for making sexually suggestive

statements         to     two   social      workers        before       or     during          court

proceedings.        To be sure, Kratz does not exactly match the facts

of this case——the respondent lawyer's conduct in Kratz was in

some   ways    less       severe,     and    in    some     ways    more       severe,          than
Attorney Baratki's conduct.                 There were no allegations in Kratz
                                              12
                                                                      No.    2016AP1877-D



that the respondent lawyer engaged in improper physical contact;

Attorney Baratki undisputedly did so, lifting K.D.'s shirt and

kissing her abdominal area during a meeting.                          The respondent

lawyer in Kratz made inappropriate statements to multiple women;

Attorney Baratki affronted one woman.                    Kratz involved a lawyer's

attempts     to        become    sexually        involved     with    an     especially

vulnerable person——a domestic abuse crime victim whose abuser he

was prosecuting; this case involves Attorney Baratki's attempts

to become sexually involved with a client.                       These differences

notwithstanding, Kratz strongly suggests that Attorney Baratki's

efforts     to        leverage    his    position        of   trust    for        personal

gratification deserves more than the 60-day minimum12 suspension.

See Kratz, 353 Wis. 2d 696, ¶47 (imposing four-month suspension

for the respondent lawyer's "crass placement of his personal

interests     above       those    of     his     client");     see        also    In    re

Disciplinary Proceedings Against Gibson, 124 Wis. 2d 466, 475,

369   N.W.2d 695        (1985)(imposing      a     ninety-day    suspension         on   an

attorney     who      made    unsolicited       sexual    advances     to    a     client;
noting     that    such      actions    constitute       "egregious    conduct"         that

"perverts the very essence of the lawyer-client                      relationship").

      ¶33    There are additional matters to consider in this case.

To Attorney Baratki's first category of misconduct we add his

violation        of     professional       rules     governing        an     attorney's

      12
       See In re Disciplinary Proceedings Against Grady, 188
Wis. 2d 98, 108-09, 523 N.W.2d 564 (1994) (explaining that
generally the minimum length of a license suspension is 60
days).


                                            13
                                                                       No.        2016AP1877-D



withdrawal         from    representation,         his     appearance        in     numerous

client matters while his law license was suspended, and his non-

cooperation with the OLR's investigation into his conduct.                                 We

also consider his previous disciplinary matters, in which he

failed to set appropriate boundaries with a client (as he did

here) and practiced law during a license suspension (as he also

did   here).         See    Private    Reprimand         2006-20,    (electronic         copy

available                                                                                  at

https://compendium.wicourts.gov/app/raw/001926.html);                                Private

Reprimand           2014-4,        (electronic             copy       available            at

https://compendium.wicourts.gov/app/raw/002644.html).                              We agree

with the referee's observation that Attorney Baratki "apparently

did not learn from either of his prior private reprimands."

      ¶34     Taken        together,    Attorney          Baratki's         serious       and

troublingly familiar misconduct renders a 60-day suspension an

insufficient response.             He abused his position of trust as a

lawyer    (again),         practiced    law      during     a     suspension        (again),

violated the duties attendant to withdrawing from representation
of a client, and disregarded his obligation to cooperate with

the OLR.       Given his course of conduct, we deem it imperative

that,    to   resume       the   practice     of    law    in     Wisconsin,        Attorney

Baratki show this court that he has taken steps to avoid similar

misdeeds      in    the     future.      We      therefore        impose     a     six-month

suspension of Attorney Baratki's Wisconsin law license.                                   See

SCR 22.28(3).             We note, too, that this particular length of

suspension is consistent with our disciplinary precedent.                                See,
e.g.,    In    re    Disciplinary       Proceedings         Against        Ridgeway,      158
                                            14
                                                                       No.    2016AP1877-D



Wis. 2d 452,      462     N.W.2d 671        (1990)    (assistant         state     public

defender suspended for six months for having sexual contact with

his   client     and   providing      her    with    beer    in    violation       of   her

probation terms).

      ¶35   We    turn    next   to   the    issue      of   costs.          Our   general

practice is to impose full costs on attorneys who are found to

have committed misconduct.               See SCR 22.24(1m).                  There is no

reason to depart from that practice here.                      We therefore impose

full costs.

      ¶36   Finally, we turn to the issue of restitution.                                We

agree with the referee that Attorney Baratki should be ordered

to pay restitution to T.T. in the amount of $487.50.

      ¶37   IT IS ORDERED that the license of Robert J. Baratki to

practice    law   in     Wisconsin    is    suspended        for   a   period      of   six

months, effective November 14, 2017.

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

of this order, Robert J. Baratki shall pay to the Office of

Lawyer   Regulation       the    costs      of   this    proceeding,          which     are
$1,428.93.

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

of this order, Robert J. Baratki shall make restitution in the

amount of $487.50 to T.T.

      ¶40   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.




                                            15
                                                       No.    2016AP1877-D



     ¶41   IT IS FURTHER ORDERED that Robert J. Baratki shall

comply with the provisions of SCR 22.26 concerning the duties of

an attorney whose license to practice law has been suspended.

     ¶42   IT    IS   FURTHER   ORDERED   that   compliance   with    all

conditions of this order is required for reinstatement.          See SCR

22.29(4)(c).13




     13
       In   addition   to   obtaining  reinstatement  from   the
disciplinary suspension imposed by this order, before he is able
to practice law in Wisconsin, Attorney Baratki will be required
to demonstrate that the grounds for any existing administrative
and temporary suspensions have been resolved. See ¶4, supra.


                                   16
    No.   2016AP1877-D




1
