                                                              2013 WI 19

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP1590-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Robert J. Smead, Attorney at Law:

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

                             DISCIPLINARY PROCEEDINGS AGAINST SMEAD

OPINION FILED:          February 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                        2013 WI 19
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.     2012AP1590-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

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

Office of Lawyer Regulation,                                          FILED
             Complainant,                                       FEB 20, 2013
       v.                                                          Diane M. Fremgen
                                                                Clerk of Supreme Court
Robert J. Smead,

             Respondent.




       ATTORNEY       disciplinary    proceeding.         Attorney         publicly

reprimanded.


       ¶1    PER CURIAM.      We review the report and recommendation

of    the   referee,    the   Honorable    John   B.    Murphy,      approving       a
stipulation filed by the Office of Lawyer Regulation (OLR) and

Attorney Robert J. Smead regarding Attorney Smead's professional
misconduct in the handling of one client matter.                      The OLR and

Attorney      Smead     stipulate    that     Attorney        Smead      committed
professional      misconduct.        The    referee     concluded        that     the

appropriate sanction for the misconduct is a public reprimand.
Upon careful consideration, we adopt the stipulated facts and
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the referee's conclusions of law.                       We also agree that a public

reprimand is an appropriate level of discipline, and also find

it appropriate to order Attorney Smead to pay the full costs of

the proceeding, which are $1,699.03 as of January 2, 2013.

        ¶2   Attorney       Smead        was     admitted       to    practice        law   in

Wisconsin in 1998 and practices in Larsen, Wisconsin.                                In 2010,

his law license was suspended for 120 days for misconduct found

in two separate attorney disciplinary matters.                              The misconduct

at issue included failing to respond to clients' requests for

information; failing to hold clients' money in trust; failing to

refund an unearned fee to a client; failing to have a written

contingent fee agreement; and failing to respond to the OLR's

grievance      investigations.                 In   re    Disciplinary            Proceedings

Against      Smead,      2010   WI       4,    ¶¶20,     28,    322   Wis. 2d 100,          777

N.W.2d 644.         In 2011, Attorney Smead was publicly reprimanded

for failure to notify a client that his law license had been

suspended; failure to provide a client with an accounting of

fees advanced and a refund of any unearned portion of the fee

following     the     suspension         of    his law     license;     and       failure to

provide      the    OLR    with      a        written    response      to     a     grievance

investigation.           In re Disciplinary Proceedings Against Smead,

2011 WI 102, ¶9, 338 Wis. 2d 23, 806 N.W.2d 631.

        ¶3   On July 17, 2012, the OLR filed a complaint alleging

seven    counts     of    misconduct           arising    out    of   Attorney        Smead's

representation of J.C., who hired Attorney Smead to represent

him in a criminal matter.                 J.C. paid Attorney Smead an advanced


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fee of $2,000.            Attorney Smead did not prepare a written fee

agreement, nor did he deposit the fee into his trust account.

        ¶4     On July 26, 2007, Attorney Smead filed a notice of

appearance          in   the    criminal      matter       on    J.C.'s     behalf.          On

September 5, 2007, the OLR filed a motion with this court asking

it to order Attorney Smead to show cause why his law license

should       not    be   suspended      for   willful       noncooperation        in    three

grievance          investigations      unrelated      to    J.C.'s      case.      Attorney

Smead failed to timely respond to this court's order to show

cause,       and    on   October      10,   2007,    this       court   issued    an    order

temporarily          suspending       Attorney      Smead's      license.        The    order

required Attorney Smead to comply with SCR 22.26 which requires,

among other things, that a suspended attorney notify clients in

pending       matters     of    the    attorney's      suspension         and    consequent

inability to act.               The rule also requires that the attorney

notify courts and adverse parties of the suspension.

        ¶5     Attorney        Smead   did    not    advise       J.C.,    the    presiding

court, or the assistant district attorney that his license to
practice law had been suspended.                       On October 17, 2007, J.C.

telephoned Attorney Smead to ask about the status of his case.
Attorney Smead's telephone was disconnected.                              J.C. then sent

Attorney Smead an e-mail.               Attorney Smead responded and provided
a new telephone number but he did not inform J.C. that his law

license had been suspended.
        ¶6     J.C. telephoned Attorney Smead multiple times and sent

several       e-mails     seeking      information      about      the    status       of   his

case.        Attorney Smead failed to provide meaningful responses to
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J.C.'s inquiries, and continued in his failure to inform J.C.

that his law license had been suspended, that he could no longer

represent J.C., and that J.C. should hire a new attorney.

     ¶7     J.C.    learned      through       a    source     other     than      Attorney

Smead that Attorney Smead's law license had been suspended.                                On

January    24,     2008,   J.C.    sent    Attorney           Smead     an    e-mail      and

specifically       asked   him    to   refund           the   $2,000     advanced        fee.

Attorney    Smead    did   not    respond          to   the    request       and   did   not

provide any refund.

     ¶8     J.C.     subsequently         retained            another        attorney     to

represent him in his criminal matter.                    In February of 2008, J.C.

submitted a claim for reimbursement to the Wisconsin Lawyers'

Fund for    Client    Protection       ("the        Fund").       The    Fund      approved

payment of $2,000 to J.C. for reimbursement of funds lost as a

result of Attorney Smead's conduct.

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

misconduct:

         [COUNT ONE:] By accepting a $2,000 advanced fee
    from [J.C.] and failing to communicate in writing the
    scope of the representation, the basis or rate of the
    fee, and the purpose and effect of the advanced fee,
    Smead violated SCR 20:1.5(b)(1) and (b)(2).1

     1
         SCR 20:1.5(b)(1) and (b)(2) states as follows:

          (b)(1) 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, except before or within a
     reasonable time after commencing the representation
     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
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     [COUNT TWO:] By failing to deposit funds received
in anticipation of providing legal services into his
trust account, with no evidence he intended to use the
alternative fee placement provisions permitted by the
rules, Smead violated SCR 20:1.15(b)(4).2

     [COUNT THREE:] By   charging  [J.C.] $2,000 for
representation in a criminal matter that he did not
complete, Smead charged an unreasonable fee, and
therefore violated SCR 20:1.5(a).3

the 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.

     (b)(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.
2
    SCR 20:1.15(b)(4) states:

     Unearned fees and cost advances.       Except as
provided in par. (4m), unearned fees and advanced
payments of fees shall be held in trust until earned
by the lawyer, and withdrawn pursuant to sub. (g).
Funds advanced by a client or 3rd party for payment of
costs shall be held in trust until the costs are
incurred.
3
    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. The factors to be considered in
determining the reasonableness of a fee include the
following:

     (1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

     (2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;

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                                                     No.   2012AP1590-D


         [COUNT FOUR:] By failing to meaningfully respond
    to [J.C.'s] multiple phone calls and e[-]mails seeking
    information about the status of his case, and
    otherwise failing to reasonably consult with [J.C.]
    regarding the means by which the objectives of the
    representation were to be pursued, Smead violated
    SCR 20:1.4(a)(2).4

         [COUNT FIVE:] By failing to respond to [J.C.'s]
    specific request for a refund of unearned fees, Smead
    violated SCR 20:1.5(b)(3).5

         [COUNT SIX:] By failing to refund unearned fees
    to [J.C.], Smead violated SCR 20:1.16(d).6


         (3) the fee customarily charged in the locality
    for similar legal services;

           (4) the amount involved and the results obtained;

         (5) the time limitations imposed by the client or
    by the circumstances;

         (6) the nature and length      of   the   professional
    relationship with the client;

         (7) the experience, reputation, and ability          of
    the lawyer or lawyers performing the services; and

           (8) whether the fee is fixed or contingent.
    4
       SCR 20:1.4(a)(2) provides that a lawyer shall "reasonably
consult with the client about the means by which the client's
objectives are to be accomplished; . . . ."
    5
       SCR 20:1.5(b)(3) states, "A lawyer shall promptly respond
to a client's request for information concerning fees and
expenses."
    6
        SCR 20:1.16(d) provides:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    to protect a client's interests, such as giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
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           [COUNT SEVEN:] By failing to notify his client,
     the presiding court, and the prosecutor handling the
     criminal matter that his law license was under
     suspension, Smead violated SCR 22.26(1)(a), (b)[,] and
     (c).7
     ¶10    Attorney   Smead    filed       an    answer   on   July     25,   2012,

admitting   the   allegations    in    the       complaint.       On    October   26,

2012, the OLR     and Attorney        Smead      entered   into    a    stipulation

whereby Attorney Smead stated he understood his right to a full

evidentiary hearing at which the OLR would have the burden to

prove the allegations in the complaint by clear, satisfactory,



     been earned or incurred. The lawyer may retain papers
     relating to the client to the extent permitted by
     other law.
     7
         SCR 22.26(1)(a), (b), and (c) states as follows:

         (1) On or before the effective date of license
    suspension or revocation, an attorney whose license is
    suspended or revoked shall do all of the following:

         (a) Notify by certified mail all clients being
    represented in pending matters of the suspension or
    revocation and of the attorney's consequent inability
    to act as an attorney following the effective date of
    the suspension or revocation.

         (b) Advise the clients to seek legal advice of
    their choice elsewhere.

         (c) Promptly provide written notification to the
    court or administrative agency and the attorney for
    each party in a matter pending before a court or
    administrative agency of the suspension or revocation
    and of the attorney's consequent inability to act as
    an attorney following the effective date of the
    suspension or revocation.    The notice shall identify
    the successor attorney of the attorney's client or, if
    there is none at the time notice is given, shall state
    the client's place of residence.

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and     convincing    evidence.        Attorney       Smead        affirmed     that       no

promises were made to secure his entry into the stipulation and

that he entered into the stipulation voluntarily and of his own

free will.        The parties stipulated that Attorney Smead would

make    restitution    to   the   Fund    in    the       amount    of   $2,000,         with

interest at the rate of five percent dating back to January 24,

2008.        On   October   26,   2012,       the   referee        entered     an    order

approving the stipulation.            The referee requested the parties to

brief the issue of appropriate discipline.                    Following review of

those     briefs,    the    referee     filed       his    recommendation           as    to

discipline on December 10, 2012.               While the OLR had sought a 60-

day suspension, Attorney Smead asked for a public reprimand.

The referee concluded that a public reprimand was an appropriate

sanction.

       ¶11    The referee pointed out that the misconduct at issue

in this case occurred in the fall of 2007, which was the same

general time period during which the misconduct that resulted in

Attorney Smead's prior suspension and public reprimand arose.
The referee said during that time period, Attorney Smead had

taken on too many cases to help another lawyer and he became
overwhelmed.         As a result of the extra work, Attorney Smead

became burned out and exhausted and began neglecting his work,
which resulted in complaints to the OLR.

       ¶12    The referee said in retrospect, Attorney Smead seems
to now recognize that his behavior during late 2007 and early

2008 fell far below the standard of professional responsibility

expected from any attorney.             The referee said although none of
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Attorney Smead's post-event analysis of his behavior excuses his

actions in J.C.'s case, it does provide a context for those

actions and suggests that his mistakes were not motivated by

greed or      laziness.       The   referee     said   Attorney    Smead's self-

analysis suggests that he is capable of understanding where he

went wrong in his practice and how those errors could be avoided

in the future.

        ¶13   The   referee    notes     that     following       his    suspension

Attorney Smead began working as a nursing assistant and later

attended nursing school and became a registered nurse in June of

2010.     Attorney Smead continues to work as a nurse.                  The referee

also notes that Attorney Smead's law license is currently in

good standing and he has been working with the Winnebago County

Free Legal Clinic on a limited basis by providing pro bono and

reduced fee services to needy clients.                 The referee also points

out that Attorney Smead has made restitution to the Fund.

     ¶14      The   referee    concluded      that     he   did   not    believe   a

further suspension would serve either the public or Attorney
Smead in any meaningful way.           In the words of the referee:

         Smead has been extremely cooperative in handling
    this case and he has demonstrated a more than adequate
    understanding of his past mistakes.        He appears
    sincerely sorry for what he did to his clients,
    including [J.C.]     Smead has made a new life for
    himself and has returned to the practice of law as
    part of that life.    He has chosen to make amends for
    this past by providing legal service to those in need.
    To deprive him of that opportunity through suspension
    would be counter-productive.




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        ¶15    The referee recommends that the court impose a public

reprimand.          He also suggests that this court should consider

waiving costs.

        ¶16    This court will affirm a referee's findings of fact

unless they are clearly erroneous, but 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.                                      This

court     is        free     to      impose       whatever         discipline       it         deems

appropriate, 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.

        ¶17    After       careful       review       of    the    record,    we    adopt        the

referee's findings of fact and conclusions of law.                                       We also

agree with the referee that a public reprimand is an appropriate

level of discipline.

        ¶18    We note, as did the referee, that the misconduct at

issue here had its genesis in the same time frame that was at

issue     in       the     matters       that    led       to     Attorney    Smead's          prior

suspension and public reprimand.                           Attorney Smead has indicated

that    since       that     time     he    has       evaluated       his    past    behavior,

recognized         his     mistakes,       and     declared         his   remorse        for    his

misconduct.          He has embarked on a new career in nursing and has

returned to the practice of law on a limited basis and provides

services to needy clients.                 We also note that Attorney Smead was

willing       to    resolve       this    matter      without       the   need     for    a    full

evidentiary hearing, and he made the ordered restitution to the


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                                                                                 No.        2012AP1590-D



Fund.        Under     all      of    these    circumstances           we    conclude          that   a

public reprimand is an appropriate level of discipline.

       ¶19     We decline to adopt the referee's recommendation that

Attorney       Smead      not    be       assessed      the    costs    of   the        proceeding.

Supreme Court Rule 22.24(1m) provides that it is this court's

general policy upon a finding of misconduct to impose all costs

upon     the        respondent.              In      cases      involving          extraordinary

circumstances, the court may, in the exercise of its discretion,

reduce       the     amount          of    costs.         We     find       no     extraordinary

circumstances in this case that would warrant a deviation from

the court's general policy.

       ¶20     IT    IS      ORDERED        that     Robert      J.     Smead          is     publicly

reprimanded for professional misconduct.

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

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

Regulation the costs of this proceeding.

       ¶22     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.   2012AP1590-D




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