                                                         2018 WI 101

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2017AP1274-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Thomas R. Napierala, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Thomas R. Napierala,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST NAPIERALA

OPINION FILED:          October 25, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2018 WI 101
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2017AP1274-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Thomas R. Napierala, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
           Complainant,                                      OCT 25, 2018
      v.                                                        Sheila T. Reiff
                                                             Clerk of Supreme Court
Thomas R. Napierala,

           Respondent.




      ATTORNEY     disciplinary     proceeding.        Attorney         publicly

reprimanded.


      ¶1   PER CURIAM.        We review the report filed by Referee

Kim M. Peterson, adopting a stipulation between the Office of

Lawyer Regulation (OLR) and Attorney Thomas R. Napierala.                      The

referee agreed that Attorney Napierala committed three counts of

misconduct, as alleged in the OLR's complaint.                    The referee

further agreed with the parties that a public reprimand is an

appropriate      level   of   discipline   for      Attorney       Napierala's

misconduct, that Attorney Napierala should be ordered to pay
restitution in the amount of $15,021.66 to a former client, T.A,
                                                                      No.    2017AP1274-D



and should be assessed the full costs of the proceeding, which

are $1,677.53 as of August 14, 2018.

      ¶2      After careful review of the matter, we conclude that

the    referee's         findings     of     fact    are     supported      by    clear,

satisfactory, and convincing evidence.                      We adopt the referee's

conclusions of law.            We agree that the appropriate discipline

for Attorney Napierala's misconduct is a public reprimand, and

we agree that Attorney Napierala should pay restitution to T.A.,

and bear the full costs of this proceeding.

      ¶3      Attorney Napierala was admitted to the practice of law

in Wisconsin in 1990.              He practices in Milwaukee.               He has not

previously been the subject of professional discipline.

      ¶4      On    June    30,     2017,     the    OLR     filed    a     three-count

complaint against Attorney Napierala.                  Attorney Napierala filed

an answer and this court appointed Referee Peterson.

      ¶5      On March 29, 2018, the parties submitted a stipulation

in    which     Attorney      Napierala          withdrew    his     answer      to   the

complaint,      admitted     the     facts    and    misconduct      alleged     in   the
complaint, and authorized the referee to make findings of fact

and conclusions of law based on these allegations.                          The parties

stipulated that Attorney Napierala should be ordered to make

restitution in the amount of $15,021.66 to T.A., and that a

public reprimand was appropriate.

      ¶6      The referee filed her findings of fact, conclusions of

law, and recommendation for discipline on July 26, 2018.                              The

referee determined that the OLR had met its burden of proof with
respect    to      the    three     counts    of    misconduct       alleged     in   the
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                                                                       No.     2017AP1274-D



complaint, and recommends that we accept the stipulation.                                No

appeal was filed so we consider this matter pursuant to Supreme

Court Rule (SCR) 22.17(2).1

     ¶7        All     three     of     the       charges      stem    from       Attorney

Napierala's representation of a single client, T.A.                          In February

2012, T.A. retained Attorney Napierala and another attorney who

worked    in    a    different     office      to    collaborate      to     challenge    a

mediation agreement and settlement in a Milwaukee case to which

T.A. was a party.               If the mediation agreement could be set

aside, the lawyers were to proceed with litigation seeking to

prove that T.A. was the biological son of T.J., and therefore

entitled to inherit T.J.'s estate.

     ¶8        In    March   2012,     Attorney      Napierala       and   T.A.    entered

into a fee agreement that disclosed Attorney Napierala's billing

rate but did not state that Attorney Napierala would bill T.A.

for services performed by non-lawyer staff or the rate at which

those services would be billed.                   The complaint alleges that T.A.

suffers     from      some      cognitive         impairment    of     which      Attorney
Napierala      was     aware,    and    that       T.A.   frequently       sought    legal



     1
         SCR 22.17(2) provides:

          If no appeal is filed timely, the supreme court
     shall review the referee's report; adopt, reject or
     modify the referee's findings and conclusions or
     remand the matter to the referee for additional
     findings;   and   determine  and   impose  appropriate
     discipline.   The court, on its own motion, may order
     the parties to file briefs in the matter.


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                                                                          No.    2017AP1274-D



advice from Attorney Napierala on a number of diverse issues,

many of which were unrelated to the mediation/settlement matter.

       ¶9     In November 2012, T.A., Attorney Napierala, and the

other   attorney       executed      an       "Appellate        Fee   Agreement"       wherein

T.A. agreed that his counsel could withhold and "set aside" from

an expected settlement, $25,000 for appellate litigation; each

attorney       would    be    paid        a    flat       fee    of    $6,000    for     this

representation.          The    Appellate           Fee     Agreement      provided      that

Attorney Napierala was to pay the other attorney a referral fee

of one-third of the hourly fees Attorney Napierala earned for

representing T.A. in this matter.

       ¶10    In practice, sometimes the other attorney would pay

Attorney Napierala the total amount that Attorney Napierala was

due at any given time, and Attorney Napierala would in turn

write a check to the other attorney for the one-third referral

fee.    Sometimes, the other attorney would subtract the one-third

referral fee before remitting payment to Attorney Napierala.

       ¶11    In a nutshell, Attorney Napierala failed to keep track
of his billing and payments relating to his representation of

T.A.    He failed to diligently maintain records of payments he

received from T.A., or from the other attorney on behalf of

T.A., thereby causing Attorney Napierala at various times to

bill T.A. for amounts beyond what Attorney Napierala was due.

       ¶12    Between approximately November 2012 and December 2014,

Attorney Napierala overbilled and was overpaid by T.A. various

amounts.       It appears the greatest discrepancy existed in May
2014,       when   Attorney    Napierala            had    been       overpaid    at    least
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                                                                 No.        2017AP1274-D



$16,763.44.        Attorney Napierala had also billed T.A. for non-

lawyer services and various other legal or administrative advice

for which T.A. did not authorize Attorney Napierala to incur

fees.

      ¶13    The OLR complaint alleged, the parties stipulated, and

the referee determined that by failing to credit T.A. for all

payments Attorney Napierala received from T.A.'s funds, and by

failing to credit T.A. for all of the referral fees retained by

the other attorney, Attorney Napierala billed T.A. for amounts

that Attorney Napierala was not due, Attorney Napierala violated

SCR 20:1.5(a)2 (Count One).

      ¶14    The OLR complaint alleged, the parties stipulated, and

the     referee    determined      that   by     billing     T.A.      at     Attorney

Napierala's hourly rate for services that were not reasonably

billable      to      T.A.,       Attorney      Napierala       again         violated

SCR 20:1.5(a) (Count Two).

      ¶15    The OLR complaint alleged, the parties stipulated, and

the referee determined that by failing to communicate to T.A. at
the   beginning     of    the   representation       that    Attorney        Napierala

intended     to    bill    T.A.    for    services       provided      by     Attorney

Napierala's       non-lawyer      staff   and    the     rate   at     which     those

services      would       be    billed,       Attorney      Napierala         violated

SCR 20:1.5(b)(1)3 (Count Three).
      2
      SCR 20:1.5(a) provides: "A lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses."
      3
          SCR 20:1.5(b)(l) provides:
                                                                        (continued)
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                                                                        No.     2017AP1274-D



      ¶16    The referee considered the stipulation for a public

reprimand,    mindful    of   the    need       to    consider     the        seriousness,

nature, and extent of misconduct, the level of discipline needed

to protect the public and the legal system from repetition of

the   misconduct,    the      need    to       impress      on    the     attorney      the

seriousness of the misconduct, and the need to deter others from

committing similar acts.             See In re Disciplinary Proceedings

Against     Steinberg,   2007    WI    113,          ¶20,   304    Wis. 2d 577,         735

N.W.2d 527.

      ¶17    The referee considered prior case law, aggravating and

mitigating factors, and the ABA Standards for Imposing Lawyer

Sanctions.     In re Disciplinary Proceedings Against Arthur, 2005

WI 40, 279 Wis. 2d 583, 694 N.W.2d 910, see ABA Standards for

Imposing Lawyer Sanctions, sec. 3.0 (1992) (stating that the


           The scope of the representation and the basis
      or rate of the fee and expenses for which the client
      will be responsible shall be communicated to the
      client in writing, before or within a reasonable
      time after commencing the representation, except
      when the lawyer will charge a regularly represented
      client on the same basis or rate as in the past. If
      it is reasonably foreseeable that the total cost of
      representation to the client, including attorney's
      fees, will be $1000 or less, the communication may
      be oral or in writing. Any changes in the basis or
      rate   of  the  fee   or  expenses   shall  also  be
      communicated in writing to the client.

           [(2)] If the total cost of representation to
      the client, including attorney's fees, is more than
      $1000, the purpose and effect of any retainer or
      advance fee that is paid to the lawyer shall be
      communicated in writing.


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                                                                            No.     2017AP1274-D



court should consider the duty violated; the lawyer's mental

state; potential or actual injury caused; and the existence of

aggravating and mitigating factors, including prior discipline

and a dishonest or selfish motive).

       ¶18   In     this    case,        the     referee       agreed       that     a     public

reprimand     was        sufficient.           As     the      referee          observed,     the

misconduct is serious, but involved only one client matter, and

this    is   the     first       time     that      Attorney         Napierala       has     been

disciplined in over 25 years of practice.                                 The referee noted

that it appears that the misconduct was not intentional, but

resulted     from    a    lack     of    attention       to    detail       and    failure     to

clearly delineate the various interests of the actors involved.

       ¶19   The    referee       opined       that   the      case       law    supports     the

sanction     of     a     public        reprimand.            In     In    re     Disciplinary

Proceedings Against Schuster, 2007 WI 131, 305 Wis. 2d 120, 741

N.W.2d 471, an attorney repeatedly submitted bills overcharging

her client, failed to credit the client with payments made, and

made false representations to a tribunal.                           Further, the attorney
had been the subject of prior discipline on similar matters.

The court ordered a 90-day suspension of the attorney's license.

The    referee     reasoned      that     Attorney       Napierala's            misconduct     is

substantially       less     serious,       he     has   no        prior    discipline,       and

there is no evidence of dishonesty or fraud.

       ¶20   The referee further recommends that the court order

Attorney Napierala to pay the stipulated restitution to T.A.,

and that the court follow its general policy and impose the full
costs of the proceeding on Attorney Napierala.
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                                                                           No.     2017AP1274-D



       ¶21    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.

       ¶22    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

Napierala violated the supreme court rules set forth above.                                 We

accept the referee's recommendation that a public reprimand is

an    appropriate         sanction    for    Attorney      Napierala's           misconduct.

Although       no    two     fact    situations         are     identical,         a     public

reprimand is generally consistent with the sanction imposed in

somewhat analogous cases.

       ¶23    Finally, we agree that Attorney Napierala should be

required to pay restitution to T.A. and shall pay the full costs
of this proceeding, which are $1,677.53.

       ¶24    IT IS ORDERED that Thomas R. Napierala is publicly

reprimanded for professional misconduct.

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

of this order, Thomas R. Napierala shall pay restitution to T.A.

in the stipulated amount of $15,021.66.

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

of this order, Thomas R. Napierala shall pay to the Office of


                                               8
                                                        No.   2017AP1274-D



Lawyer   Regulation   the   costs   of   this   proceeding,   which   are

$1,677.53 as of August 14, 2018.

    ¶27    IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

    ¶28    IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.




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    No.   2017AP1274-D




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