                                                               2015 WI 2

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2013AP505-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Emory H. Booker, III, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Emory H. Booker, III,
                                  Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST BOOKER

OPINION FILED:          January 16, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                              2015 WI 2
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2013AP505-D


STATE OF WISCONSIN                               :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Emory H. Booker, III, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
            Complainant,
                                                                    JAN 16, 2015
       v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Emory H. Booker, III,

            Respondent.




       ATTORNEY      disciplinary       proceeding.         Attorney's          license

revoked.



       ¶1   PER   CURIAM.    We     review      the    report     of    the    referee,

Hannah C. Dugan, recommending that the court:                        (1) revoke the

Wisconsin law license of Attorney Emory H. Booker, III; (2)

require Attorney Booker to pay a total of approximately $2,900

in    restitution,     divided    among    ten    former        clients;       and    (3)

require     Attorney    Booker     to     pay    the      full     costs      of     this

disciplinary proceeding, which total $14,947.80 as of August 12,
                                                                         No.    2013AP505-D



2014.      Because no appeal has been filed in this matter, our

review proceeds pursuant to Supreme Court Rule (SCR) 22.17(2).

      ¶2       For    the    reasons     explained      below,     we   determine        that

Attorney Booker has admitted by default the allegations in the

Office of Lawyer Regulation's (OLR) complaint.                              We therefore

adopt the referee's findings of fact and conclusions of law.                              We

agree      with      the    referee     that       Attorney    Booker's        license    to

practice law in Wisconsin should be revoked.                       We also agree with

the referee that Attorney Booker should be required to pay the

entire      costs      of     this     proceeding.            We   decline      to    order

restitution for reasons explained below.

      ¶3       Attorney Booker was admitted to the Wisconsin State

Bar in 2000.               He practiced in the Milwaukee area.                    His law

license is administratively suspended for a number of reasons,

including         noncompliance         with        continuing        legal      education

requirements.

      ¶4       Although Attorney Booker does not have a disciplinary

history in Wisconsin, he has had considerable practice problems
in the United States Bankruptcy Court for the Eastern District

of Wisconsin, where he practiced extensively.                         We take judicial

notice of the following events in that court.                           On December 20,

2011,    the      Eastern     District    bankruptcy          court   issued     an   order

barring      Attorney        Booker    from    filing     any      further      bankruptcy

petitions in that court until he had demonstrated to the judges

that he had obtained 15 hours of continuing legal education in

the   area     of     consumer       bankruptcy      practice.        See     In re   Diane
Jackson, No. 12-25456, order at 8 (Bankr. E.D. Wis. June 20,
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                                                                            No.     2013AP505-D



2012).        Attorney        Booker      satisfied         this          legal        education

requirement      (id.    at     8-9),    but      doing     so      did     not    solve    his

practice difficulties.           In 2012, the Eastern District bankruptcy

court    penalized       Attorney       Booker      $5,000         for     his    "clear    and

consistent pattern or practice of violating" various sections of

the Federal Bankruptcy Code, the Federal Rules of Bankruptcy

Procedure,    and    the      Eastern    District         bankruptcy            court's    local

rules.      Id.     at    73.      Also    in      2012,       the       Eastern       District

bankruptcy court asked the Wisconsin Department of Justice to

investigate Attorney Booker's representation of debtors.                                    The

Department    of     Justice      did    so       and,    in       2013,    the     State    of

Wisconsin obtained an order and judgment against Attorney Booker

requiring him to pay $36,768 in damages, representing fees he

collected    in     bankruptcy      cases         in    violation          of    the    Federal

Bankruptcy Code.           State of Wisconsin v. Emory H. Booker III,

12-CV-990, judgment and order (E.D. Wis. Aug. 21, 2013).

    ¶5      In March 2013, the OLR filed a complaint and then an

amended complaint in this matter.                  The amended complaint alleged
47 counts of misconduct.

    ¶6      In April 2013, after numerous unsuccessful attempts at

personal service, the OLR attempted to serve Attorney Booker by

sending, via certified mail, a copy of the amended complaint and

amended order to answer to Attorney Booker's last known office

address on file with the Wisconsin State Bar, as well as his

last two known residences.              See SCR 22.13(1).

    ¶7      In    May    2013,    the     OLR      filed       a    motion       for    default
judgment against Attorney Booker.                      At the subsequent hearing on
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this motion, Attorney Booker appeared and claimed that he never

received      service        of   the   OLR's       pleadings,     and   that       he    only

learned of the default judgment hearing because the referee had

emailed her scheduling order to him, in addition to mailing it.

Attorney Booker provided a current mailing address, telephone

number, and email address.                The referee denied the OLR's motion

for default judgment and gave Attorney Booker several weeks to

file an answer.

    ¶8         Attorney Booker filed an answer in which he denied

misconduct.          During August through October 2013, Attorney Booker

appeared      at     three    telephonic        status    conferences     held       by    the

referee.        In    October      2013,   Attorney        Booker    provided       written

responses to the OLR's discovery requests.                          In early November

2013, Attorney Booker did not appear at a deposition scheduled

by the OLR, though there appears to have been initial confusion

about    the       time   and     place    of       the   deposition,     and      the     OLR

ultimately provided less than two full working days' notice of

the deposition.
    ¶9         The    OLR     moved     again       for   the   entry    of    a    default

judgment.          In an order filed November 18, 2013, the referee

recommended that this court strike Attorney Booker's answer and

declare him in default for providing "minimal information" in

response to the OLR's discovery requests, and for "fail[ing] to

attend    a    deposition         and   fail[ing]         to    attend   two       scheduled

telephonic conferences, or to respond or communicates [sic] in

any format to requests from the [OLR] or the referee."                                   It is
unclear from the record whether Attorney Booker received notice
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                                                                          No.   2013AP505-D



of the hearing that culminated in the referee's striking of his

answer and granting of default; the record lacks a copy of any

notice   of    the    hearing,         and    the   OLR's       counsel    informed       the

referee at the hearing that he had not received a copy of any

order scheduling the hearing.

      ¶10     This   court       has    cautioned         in    previous    disciplinary

cases that the striking of a timely answer and the granting of a

default is a "drastic sanction" that may be used only when the

responding     attorney         has    engaged      in    egregious       or    bad     faith

conduct.        In      re     Disciplinary         Proceedings          Against        Kelly,

2012 WI 55,      ¶22,        341 Wis. 2d 104,        814 N.W.2d 844.               We     have

instructed     that       it    "is    certainly      the       better    practice"       for

referees to include an explicit finding of egregious or bad

faith conduct in a default order.                     Id., ¶23.          The referee in

this case did not do so.

      ¶11     We may nevertheless accept the factual allegations of

the   OLR's    amended         complaint      as    true       for   purposes      of     this

proceeding     if    we    determine         that   the    referee       properly       struck
Attorney Booker's answer and found him in default.                              Id., ¶25.

To do so, we must determine that the referee implicitly found

Attorney Booker's conduct to be egregious or in bad faith, and

that the facts of record provide a reasonable basis for this

implicit finding.          Id., ¶¶23-24.

      ¶12     Our review of the record showed that a question could

be raised as to whether the referee had a reasonable basis to

implicitly find that Attorney Booker engaged in egregious or bad
faith behavior that would justify the striking of his answer and
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                                                                        No.    2013AP505-D



a finding of default.         We therefore ordered the parties to file

written positions on this issue with the court.                       We additionally

instructed     Attorney      Booker   to       state    whether       he      wanted   the

referee's default order to stand.                 We warned that a failure by

either party to respond to this court's order would be deemed a

forfeiture of arguments regarding the referee's default order.

      ¶13     The OLR filed a response.                It claimed that Attorney

Booker's      unexplained      decision         to     stop       participating         in

proceedings      before      the    referee          constituted        an      egregious

abandonment of his defense.

      ¶14     Attorney    Booker    failed      to    file    a   response       to    this

court's order.

      ¶15     We warned Attorney Booker in our previous order of the

consequence      of   such     non-participation:                 a   forfeiture        of

arguments regarding the referee's default order.                           True to our

word, we deem any objections to the referee's default order to

have been forfeited.         We therefore affirm the referee's default

order striking Attorney Booker's answer and declaring him to be
in default, and we accept the allegations of the OLR's amended

complaint as true for purposes of this proceeding.

      ¶16     The allegations in the OLR's amended complaint (which,

as   noted,    Attorney    Booker     has      admitted      by   default)       and   the

corresponding      findings     and    conclusions           by   the      referee      are

expansive.       They amount to an omnibus indictment of Attorney

Booker's conduct in numerous specified client matters and in

broad categories of work, such as "State Debt Relief Matters,"
"'Pro Se' [Wis. Stat.] Chapter 128 Petitions," and "'Pro Se'
                                           6
                                                                                         No.       2013AP505-D



Bankruptcy         Filings."                 Given    the       volume        of    the       allegations,

findings, and conclusions before the court, we do not repeat

them    all       here.            It   is        sufficient      to        provide       the      following

summary information concerning the misconduct in this matter.

       ¶17        Attorney Booker promoted his law practice by labeling

himself in advertisements as the "Light Hero"——a reference to

his    ability          to    keep          electricity         connected          to     the      homes    of

financially troubled residents.                                For a time, Attorney Booker

concentrated much of his practice on filing what are known as

"Chapter      128        petitions"            on    behalf       of        homeowners         facing      the

possible      disconnection                  of    utility       services.               A    Chapter      128

petition is a state-court proceeding in which wage earners who

are    unable       to       pay        a    debt     in       full    can     make          regular      debt

amortization            payments            over     time.            See    Wis. Stat.            § 128.21.

Before       August           2011,          the     utility          company           which       provides

electrical service to Milwaukee residents treated the filing of

a   Chapter        128       petition         as     an       injunction       preventing           it    from

terminating         a    customer's               service       during       the    pendency         of    the
case.    Attorney Booker therefore filed Chapter 128 petitions on

behalf       of    his       clients          in     order       to    stay        the       utility      from

disconnecting his clients' service for non-payment.

       ¶18        The    Chapter             128     petitions           that       Attorney           Booker

prepared were often faulty.                           Between May 2010 and March 2011,

Attorney      Booker          filed         several       hundred       Chapter          128    petitions,

many    of    which          did    not      use     court-approved            forms         and    did    not

contain required certification language.


                                                          7
                                                                          No.        2013AP505-D



       ¶19     Beginning       in     April       2011,     Attorney          Booker       began

ghostwriting        Chapter     128    filings.           That   is,     Attorney       Booker

would    prepare      and   file      certain      documents      and     include       return

envelopes      for    the   court      to    send    correspondence            to    his    post

office box, but he would not appear as counsel of record.                                  Many

of    Attorney      Booker's    filings       were    incomplete         or    noncompliant

with the court's requirements.                     The information that Attorney

Booker provided to his clients often consisted of information

the    clients      could   obtain      without       a    fee   at      the    courthouse.

Attorney Booker also failed to adequately explain the limited

nature of his representation to his clients.

       ¶20     In mid-2011, a Milwaukee County Circuit Court judge

discovered      that    Attorney       Booker      was    ghostwriting          Chapter      128

filings.       The judge wrote to Attorney Booker and asked him to

identify himself to the court and explain his conduct.                                Attorney

Booker did not respond.

       ¶21     In August 2011, a Milwaukee County Circuit Court judge

ruled    that        Chapter    128      petitions         did     not        stay     utility
disconnection for nonpayment.                 This ruling meant that the only

place where a customer could initiate a court action that would

result in a utility being barred from disconnecting service was

the    federal      bankruptcy       court.        Attorney      Booker        responded     by

changing the focus of his practice to bankruptcy filings in

federal bankruptcy court.

       ¶22     By    December       2011,    the     Eastern     District           bankruptcy

court    had    encountered         enough    problems      with      Attorney        Booker's
filings that the court barred him from filing further bankruptcy
                                              8
                                                                                No.    2013AP505-D



petitions      in    that      court      until      he     had    obtained       15    hours    of

continuing legal education in the area of consumer bankruptcy

practice.       In February 2012, Attorney Booker filed verification

with    the    court      that    he'd      obtained         the       required       educational

hours.         Accordingly,          in    March       2012,       the     court       reinstated

Attorney Booker's privileges to file new bankruptcy petitions.

       ¶23     Between April 2012 and June 2012, the Eastern District

bankruptcy court received more than 140 petitions which showed

the debtor as filing pro se and listed a business called "1st

Choice       Bankruptcy        Preparation"           in    Indiana        as    the     petition

preparer.          Attorney Booker helped prepare these filings even

though he never appeared as counsel of record.                                 In exchange for

a fee, Attorney Booker provided the debtors with a packet of

information and sent the debtors' financial information to 1st

Choice       Bankruptcy,        which       in       turn       prepared       the     bankruptcy

petitions.          Attorney      Booker         did      not     adequately         explain    the

limited       nature      of   his     representation             to     his    clients;       some

debtors believed that Attorney Booker was their attorney for the
entire bankruptcy proceeding.                     In many cases, Attorney Booker

conducted no meaningful review as to the debtor's suitability

for bankruptcy.            Much of the information that Attorney Booker

provided      to    his    clients        was    inaccurate.             Many   of     the   court

filings contained incorrect information or were missing required

documents.         Attorney Booker failed to make certain disclosures

to clients that are required by the United States Bankruptcy

Code.    He charged unreasonable fees for his services.


                                                 9
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    ¶24    The OLR's amended complaint (the allegations of which

Attorney   Booker    has     admitted       by    default)       and   the     referee's

report describe a variety of specific client matters, which are

presumably    intended       to    serve    as    representative         examples      of

Attorney     Booker's    misconduct.             All     cases     except       one   are

bankruptcy matters.           Each of the cases present variations on

certain basic themes of misconduct:                    Attorney Booker failed to

competently     prosecute         Chapter        128    petitions        and     federal

bankruptcy petitions, resulting in their dismissal;                            he failed

to complete his work in a timely fashion; he failed to return

his clients' calls and emails; he charged advanced fees, which

he did not place in trust, nor did he provide any of the notices

required under SCR 20:1.15(b)(4m) for the alternative treatment

of advanced fees; he charged unreasonable fees; he failed to

return unearned fees; and he did not fully cooperate with the

OLR investigation.

    ¶25    From the above-described misconduct, the OLR charged

and the referee found 47 counts of misconduct, which may be
grouped as follows:

          Failing      to        act    with      reasonable          diligence      and

           promptness in representing a client, see SCR 20:1.3

           (Counts 1, 17).

          Failing      to   properly       communicate         with    clients,      see

           SCR 20:1.4 (Counts 2, 3, 8, 18, 23).

          Failing to cooperate with an OLR investigation and to

           provide      relevant        information,       to     answer       questions
           fully, or to furnish documents in the course of an OLR
                                           10
                                                               No.   2013AP505-D



    investigation, see SCRs 20:8.4(h), 21.15(4), 22.03(6)

    (Counts 4, 32).

   Knowingly disobeying an obligation under a tribunal's

    rules, see SCR 20:3.4(c) (Counts 5, 10, 11, 15, 25,

    26, 31, 39, 42, 43, 44).

   Making a false statement of fact to a tribunal, see

    SCR 20:3.3(a)(1) (Counts 6, 19).

   Engaging    in     conduct       involving        dishonesty,        fraud,

    deceit,    or     misrepresentation,            see     SCR      20:8.4(c)

    (Counts 6, 12, 19, 21, 28, 47).

   Failing    to     provide     competent         representation,           see

    SCR 20:1.1 (Counts 7, 13, 16, 20, 22, 29).

   Charging    an     unreasonable          fee,     see       SCR 20:1.5(a)

    (Counts 9, 14, 24, 30, 33, 36, 39, 42, 44).

   Engaging in conduct that violates a statute, supreme

    court   rule,     supreme    court       order,    or      supreme    court

    decision    regulating       the        conduct    of      lawyers,       see

    SCR 20:8.4(f) (Counts 10, 15, 25, 31).
   Unreasonably limiting the scope of representation, see

    SCR 20:1.2(c) (Counts 8, 23).

   Failing to include an attorney name and office address

    in advertisements, see SCR 20:7.2(c) (Count 27).

   Failing    to     hold      unearned       fees       in     trust,       see

    SCR 20:1.15(b)(4) (Counts 34, 37, 40, 45).

   Failing    to    return   fees     or    unexpended        costs     to   the

    client, see SCR 20:1.16(d) (Counts 35, 38, 41, 43,
    46).
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                                                             No.      2013AP505-D



       ¶26    Because we affirm the referee's default order striking

Attorney Booker's answer and declaring him to be in default, we

accept the allegations of the OLR's amended complaint as true

for purposes of this proceeding.          We agree with the referee that

those facts support a conclusion of professional misconduct on

each of the 47 counts of misconduct set forth in the amended

complaint and described above.

       ¶27    We now turn to the question of the appropriate level

of discipline.       The undisputed facts show a clear pattern of

neglect by Attorney Booker of his clients' needs and objectives,

which    is   especially    troubling     given   that    most   of    Attorney

Booker's clients were in serious financial distress and thus

were in a particularly vulnerable position.                 Attorney Booker

also    showed   a   patent   disregard    for    his    obligations     as   an

attorney.      He made a habit of providing inaccurate or misleading

information to his clients and to the courts.              He ignored court

orders and requirements.        He repeated his misconduct again and

again, in scores of cases in federal and state courts over a
lengthy period.      He has never acknowledged his wrongdoing.                He

has failed to fully cooperate with the disciplinary process.

License revocation is necessary in this case to impress upon

Attorney Booker the seriousness of his professional misconduct,

to protect the public from similar misconduct in the future, and

to deter other attorneys from engaging in similar misconduct.

       ¶28    We further conclude that full costs are to be imposed

on Attorney Booker.        Attorney Booker has failed to object to the
OLR's requested costs or allege any factors that would justify a
                                     12
                                                                     No.   2013AP505-D



reduction in costs.            Consequently, Attorney Booker shall bear

the entire costs of this disciplinary proceeding.

       ¶29   As to the issue of restitution, the OLR requested and

the referee recommended that this court order Attorney Booker to

pay restitution to ten different individuals.                  However, we note

that   in    State    of    Wisconsin   v.    Emory   H.    Booker    III,   Eastern

District Case No. 12-CV-990, the State of Wisconsin has already

obtained an award against Attorney Booker of over $36,000 in

damages, representing fees that Attorney Booker collected from

approximately 130 debtors in violation of the Bankruptcy Code.

At least half of the clients for whom the OLR now requests

restitution were included in the client matters at issue in this

federal lawsuit.           As for the remaining clients for whom the OLR

seeks restitution, the OLR's amended complaint and the referee's

report suggest that the Eastern District bankruptcy court has

already ordered Attorney Booker to pay restitution to several of

these clients.        Neither the OLR nor the referee explain why this

court should order restitution that would duplicate that already
ordered in the federal court system.

       ¶30   Given the imprecise state of the record as it relates

to restitution, the court declines to make a specific award of

restitution.         Instead, we deem it appropriate to require, as a

condition of the reinstatement of his Wisconsin law license,

that   Attorney       Booker   demonstrate      to    the   court     that   he   has

reimbursed any unearned fees to each client mentioned in the

OLR's amended complaint.


                                         13
                                                                 No.   2013AP505-D



    ¶31     IT IS ORDERED that the license of Emory H. Booker, III

to practice law in Wisconsin is revoked, effective the date of

this order.

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

of this order, Emory H. Booker, III shall pay the Office of

Lawyer Regulation the costs of this proceeding.

    ¶33     IT     IS   FURTHER     ORDERED     that,   as   a    condition    of

reinstatement of his license to practice law in Wisconsin, Emory

H. Booker, III shall reimburse any unearned fees to each client

mentioned     in    the    Office     of      Lawyer    Regulation's     amended

complaint, and shall provide the court with a written accounting

of any such reimbursements.

    ¶34     IT IS FURTHER ORDERED that, to the extent he has not

already done so, Emory H. Booker, III shall comply with the

provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been revoked.




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