                                                              2014 WI 46

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP360-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Patrick J. Hudec , Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Patrick J. Hudec,
                                  Respondent.




                             DISCIPLINARY PROCEEDINGS AGAINST HUDEC

OPINION FILED:          July 1, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., dissents. (Opinion filed.)
   NOT PARTICIPATING:

ATTORNEYS:
                                                                             2014 WI 46
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2013AP360-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Patrick J. Hudec, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
             Complainant,
                                                                      JUL 1, 2014
      v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Patrick J. Hudec,

             Respondent.




      ATTORNEY       disciplinary           proceeding.       Attorney         publicly

reprimanded.



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

Christine Harris Taylor which adopted a stipulation entered into

between     the    Office    of    Lawyer    Regulation       (OLR)    and     Attorney

Patrick     J.    Hudec.     The    referee     agreed      that    Attorney       Hudec

committed four counts of misconduct, as alleged in the OLR's

complaint.        The referee further agreed with the parties that a

public     reprimand   was    an    appropriate       level    of     discipline      for
Attorney Hudec's misconduct.                Finally, the referee recommended
                                                                   No.    2013AP360-D



that Attorney Hudec should be assessed the full costs of the

proceeding, which are $1,625.14 as of January 23, 2014.

       ¶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 further adopt the

referee's conclusions of law.                 We agree that the appropriate

discipline       for    Attorney     Hudec's      misconduct       is    a     public

reprimand.       Finally, we agree that Attorney Hudec should bear

the full costs of this proceeding.

       ¶3   Attorney      Hudec     was    admitted      to    practice       law    in

Wisconsin in 1979.        The most recent address on file for him with

the State Bar of Wisconsin is East Troy, Wisconsin.

       ¶4   In November of 1989, Attorney Hudec consented to a

private     reprimand      for     misconduct     that        included    accepting

representation that was adverse to a former client and which

constituted a conflict of interest.              Private Reprimand No. 1989-

27.

       ¶5   In    March    of     1993,   Attorney     Hudec     consented      to    a
private reprimand for misconduct that included entering into a

business transaction that was adverse to the financial interests

of a client; engaging in conduct involving dishonesty, fraud,

deceit, or misrepresentation; and withholding material evidence

in failing to cooperate with the investigation of the Board of

Attorneys Professional Responsibility, the predecessor to the

OLR.    Private Reprimand No. 1993-4.

       ¶6   In May of 2001, Attorney Hudec consented to a third
private reprimand for misconduct that included failing to obtain
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                                                                             No.    2013AP360-D



written     consent       to    a        potential       conflict       of     interest      in

representing two clients and drafting a letter which contained a

false statement of fact.              Private Reprimand No. 2001-OLR-15.

    ¶7         In March of 2008, Attorney Hudec consented to a public

reprimand      for    misconduct          that       included   failing        to    act   with

reasonable diligence and promptness in representing a client,

failing to keep a client reasonably informed about the status of

a matter and promptly comply with requests for information, and

failing to timely respond to OLR letters and telephone calls and

to timely produce information requested by the OLR.                                    Public

Reprimand of Patrick J. Hudec, No. 2008-OLR-2.

    ¶8         On    February    13,       2013,       the    OLR     filed    a    complaint

alleging       four    counts       of     misconduct         which     occurred       between

November 2007 and January 2009.                       The allegations of misconduct

arose    out    of    Attorney        Hudec's         representation          of    Roma   II –

Waterford, LLC, et al. (Roma II), a corporation that owned a

restaurant.          Roma II was the defendant in a lawsuit filed in

Racine County circuit court.                 Attorney Hudec signed an answer to
the plaintiff's complaint and filed it on November 13, 2007.

The answer was incomplete and responded to only the first of the

four causes of action alleged in the complaint.                              The paragraphs

in the answer were misnumbered and started with paragraphs one

through 11, then skipped to paragraphs 23 and 24.                              There was no

claim for relief in the answer.

    ¶9         On December 17, 2007, the plaintiff in the suit filed

a motion for default judgment on the second, third, and fourth
causes    of    action.         Two      days    later       Attorney    Hudec       filed   an
                                                 3
                                                                          No.     2013AP360-D



amended        answer        and    counterclaim.          At     a    hearing        on   the

plaintiff's motion for default judgment, Attorney Hudec told the

circuit court that the first answer he had filed had been a

draft that was filed by mistake.

      ¶10      Attorney Hudec further stated to the court that he had

filed     an    affidavit          in    opposition   to   the    defendant's         default

judgment motion.               Attorney Hudec retracted his representation

about filing an affidavit in opposition to the motion when both

the plaintiff's counsel and the court remarked they had not

received the affidavit.                  Electronic court records did not show a

record of the affidavit referred to by Attorney Hudec.

      ¶11      The circuit court granted the plaintiff's motion for a

default judgment on the second, third, and fourth causes of

action and did not discuss Attorney Hudec's amended answer in

its decision.           Attorney Hudec filed a motion for reconsideration

and   a    motion       to    vacate       the   default   judgment.        Following        a

hearing, the circuit court signed a document entitled "Final

Order" that stated the defendant's motions for reconsideration
and   to    vacate       the       default    judgment     were   denied        and   that   a

proposed order for judgment and judgment filed by the plaintiff

was stayed pending appeal.                    The circuit court's order did not

say it was final for purposes of appeal.                        No judgment was filed

or entered.

      ¶12      On June 5, 2008, Attorney Hudec filed an appeal on

behalf of Roma II in the court of appeals.                            He filed his brief

on November 12, 2008.                   Attorney Hudec alleged on appeal that the
default judgment was unfair because the defendant's failure to
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                                                                        No.    2013AP360-D



answer three of the four causes of action was due to a mistake

on Attorney Hudec's part.                 The plaintiff filed his responsive

appellate brief on December 1, 2008.                     Attorney Hudec filed a

reply   brief       on   January      30,   2009,     but    failed      to     copy   the

plaintiff's counsel.

      ¶13    Although the court of appeals ultimately reversed the

circuit     court    since     Attorney      Hudec    timely       filed      an   amended

answer that joined issue as to all causes of action, the court

of appeals criticized statements made by Attorney Hudec at the

motion hearing in circuit court.                  The court of appeals referred

to Attorney Hudec's "lack of attention to detail."                         The court of

appeals also said Attorney Hudec's conduct was "egregious."                            The

court of appeals further found that Attorney Hudec incorrectly

stated the standard of review as being de novo, whereas the

correct     standard      of    review      was    whether        the   lower      court's

decision was an erroneous exercise of discretion.

      ¶14    The     court     of    appeals      also   said       Attorney       Hudec's

"mistake" in signing and filing an incomplete answer appeared
"not to be an isolated incident but a pattern of gross and

inexcusable     inattention          to   details."         The    court      of   appeals

sanctioned Attorney Hudec for intentionally including materials

not   appropriate        to    the    appeal,     including        an   administrative

decision which postdated the decision being appealed and for

intentionally including materials the court deemed "salacious."

The court of appeals imposed a $500 penalty as a sanction.

      ¶15    The court of appeals also found that Attorney Hudec
failed to serve a copy of the reply brief on the respondent as
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                                                      No.   2013AP360-D



required by Wis. Stat. § 809.19(8).       The court of appeals also

chastised     Attorney   Hudec   for   failing   to   proofread    his

submissions and said, "Frankly, we are at a loss to understand

what is clearly Hudec's intentional disregard of the rules and

the details, including his failure to proofread."

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

misconduct:

         [COUNT 1] By engaging in what the Court of
    Appeals later described as "a pattern of gross and
    inexcusable inattention to details," including the
    signing and filing of an incomplete answer in the
    [Racine County circuit court] litigation; incorrectly
    informing the circuit court that he had filed an
    affidavit in opposition to the plaintiff's motion for
    default judgment; and stating a presumption that his
    "testimony" was under oath, while making an argument
    to the court (as opposed to testifying as a witness),
    [Attorney] Hudec violated SCR 20:1.1.1

         [COUNT 2] When, as described by the Court of
    Appeals, [Attorney] Hudec continued at the appellate
    level to engage in "egregious conduct," including
    failing to ensure that a proper final order or
    judgment was in the record when he filed his notice of
    appeal; misstating the standard of review of a default
    judgment;   filing   a  principal   brief  rife   with
    grammatical and spelling errors; including in his
    principal brief a statement of facts that included
    facts not germane to the issues on appeal; and filing
    a reply brief that was struck as untimely and which
    was not served on opposing counsel, [Attorney] Hudec
    violated SCR 20:1.1.

            [COUNT 3] By including in his principal appellate
    brief     facts that were described by the Court of

    1
       SCR 20:1.1 states, "A lawyer shall provide competent
representation to a client.    Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."

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                                                                No.    2013AP360-D


      Appeals as "salacious," not germane to the issues on
      appeal, and which "could only have been included to
      prejudice [the plaintiff,"] [Attorney] Hudec violated
      SCR 20:3.1(a)(3).2

           [COUNT 4] By failing to serve opposing counsel
      with a copy of the reply brief that he filed in the
      Court of Appeals thereby engaging in an ex parte
      communication   with   the court,  [Attorney] Hudec
      violated SCR [20:3.5(b)].3
      ¶17     Attorney Hudec filed an answer to the complaint on

April 5, 2013.      Christine Harris Taylor was appointed as referee

on April 15, 2013.
      ¶18     On October 11, 2013, the parties filed a stipulation

whereby Attorney Hudec agreed that each factual allegation in

the   OLR's    complaint   was    accurate    and   admitted.         He   further

admitted and stipulated to his commission of each of the four

counts of misconduct alleged in the complaint.                       The parties

stipulated     an   appropriate    level     of   discipline    to    impose   in

response to Attorney Hudec's misconduct was a public reprimand.


      2
       SCR 20:3.1(a)(3) states that in representing a client, a
lawyer shall not "file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another."
      3
          SCR 20:3.5(b) states a lawyer shall not:

           [C]ommunicate ex parte with such a person during
      the proceeding unless authorized to do so by law or
      court order or for scheduling purposes if permitted by
      the court.    If communication between a lawyer and
      judge has occurred in order to schedule the matter,
      the lawyer involved shall promptly notify the lawyer
      for   the  other   party  or   the   other  party,  if
      unrepresented, of such communication; . . . .

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                                                                           No.    2013AP360-D



      ¶19     The referee issued her findings of fact, conclusions

of law, and recommendation for discipline on December 4, 2013.

The referee adopted the stipulation filed by the parties and

found that the OLR had met its burden of proof with respect to

the four counts of misconduct alleged in the complaint.                                   The

referee also agreed with the parties that a public reprimand was

an appropriate sanction.               While the referee noted that Attorney

Hudec has previously received three private reprimands and one

public   reprimand,        the     referee         pointed      out    that   the     current

disciplinary complaint was based upon a referral to the OLR from

the   court       of   appeals,    District        II,    and    there     was   no    direct

reference in the record as to whether Attorney Hudec's conduct

or deficiencies harmed his client.                      The referee also recommended

that Attorney Hudec should be assessed the full costs of the

proceeding.

      ¶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 erroneous.                 Accordingly, we adopt them.                    We also

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

violated the supreme court rules set forth above.                                We further
agree with the referee that a public reprimand is an appropriate
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                                                        No.      2013AP360-D



sanction for the misconduct at issue here.           Finally, we agree

with the referee that Attorney Hudec should be required to pay

the full costs of the proceeding, which are $1,625.14.

    ¶22   IT   IS   ORDERED   that   Patrick   J.   Hudec   is    publicly

reprimanded for professional misconduct.

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

of this order, Patrick J. Hudec shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶24   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.    2013AP360-D.ssa




    ¶25      SHIRLEY S. ABRAHAMSON, C.J.         (dissenting).         I would

not adopt the stipulation that imposes a public reprimand.                  The

court   of   appeals     characterized    Attorney     Hudec's    conduct    as

demonstrating "a pattern of gross and inexcusable inattention to

details."     Attorney Hudec has in the past been the subject of

three private reprimands and one public reprimand.                   A public

reprimand     in   the   present   case   does   not    comport      with   the

violation of the Code or the concept of progressive discipline.




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