                                                              2016 WI 84

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2015AP2414-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Gregory M. Lunde, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Gregory M. Lunde,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST LUNDE

OPINION FILED:          October 18, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2016 WI 84
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.     2015AP2414-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Gregory M. Lunde, Attorney at Law:


Office of Lawyer Regulation,                                             FILED
             Complainant,                                         OCT 18, 2016
       v.                                                            Diane M. Fremgen
                                                                  Clerk of Supreme Court
Gregory M. Lunde,

             Respondent.




       ATTORNEY    disciplinary        proceeding.         Attorney's           license

suspended.


       ¶1    PER CURIAM.       We review the report and recommendation

of Referee James G. Curtis approving a stipulation filed by the

Office of Lawyer Regulation (OLR) and Attorney Gregory M. Lunde.

In    the   stipulation,    Attorney    Lunde       stipulated      to    the    facts

underlying     five   counts    of   misconduct       alleged       in    the    OLR's

complaint and agreed that the referee could enter conclusions of

law finding that Attorney Lunde violated the various Supreme
Court Rules as set forth in the complaint.                  The parties jointly
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recommended that the appropriate sanction to be imposed is a 60-

day suspension of Attorney Lunde's license to practice law in

Wisconsin.      The referee agreed that a 60-day suspension was

appropriate.

      ¶2     After    careful    review         of    the    matter,    we    uphold      the

referee's findings of fact and conclusions of law and agree that

a 60-day suspension is an appropriate sanction.                         We further find

it appropriate to impose the full costs of this proceeding,

which are $1,357.73 as of August 1, 2016, on Attorney Lunde.

      ¶3     Attorney    Lunde     was      admitted          to   practice         law   in

Wisconsin in 1981.        He resides in Westby, Wisconsin.                     Effective

April 12, 2016, Attorney Lunde ceased actively practicing law

due   to    health    reasons.         He       has    no     present     intention        to

recommence the active practice of law.

      ¶4     Attorney Lunde's prior disciplinary history consists

of    a    consensual    public        reprimand            imposed     by    the     OLR's

predecessor, the Board of Attorneys Professional Responsibility

(BAPR), for failing to provide competent representation to a
client, failing to act with reasonable diligence and promptness

in representing a client, and failing to cooperate with BAPR's

investigation.       Public   Reprimand         of    Gregory      M.   Lunde,      1992-3,

(electronic                     copy                        available                      at

https://compendium.wicourts.gov/app/raw/000297.html).

      ¶5     The OLR filed a complaint against Attorney Lunde on

November 25, 2015.        Attorney Lunde filed an answer on December

30, 2015.      The referee was appointed on March 24, 2016.                               The
parties' stipulation was filed on July 15, 2016.
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    ¶6      According to the stipulation, on June 3, 2001, J.S., a

single    person    and      resident      of       rural    Westby,    Wisconsin,        died

intestate.       J.S. was survived by two minor children, D.B., age

14, and Z.S., age 7.              On or about June 9, 2001, Attorney Lunde

met with James DelMedico (DelMedico), an officer of a bank,

regarding the need to probate J.S.'s estate.

    ¶7      On     January        30,   2002,          Attorney        Lunde     filed        an

Application for Informal Administration of the estate, signed by

DelMedico as the applicant, in Vernon County Circuit Court.                                  The

court      issued          letters         appointing           DelMedico             personal

representative of the estate on January 30, 2002.                                    DelMedico

contacted Attorney Lunde and requested that he serve as the

attorney for the estate.

    ¶8      At the time of her death, J.S. was enrolled in a group

life insurance plan sponsored by her employer, with insurance

coverage    issued      by    Metropolitan           Life    Insurance     Company        (Met

Life).     J.S.'s minor children were entitled to equal shares in

the death benefit payable under the Met Life plan.
    ¶9      On January 8, 2004, Attorney Lunde filed a petition

and affidavit in the probate matter asking the court to issue an

order directing Met Life to transfer the life insurance proceeds

to his trust account.             The circuit court granted the petition on

January    12,   2004      and    issued    an       order    directing        Met    Life    to

release    the     funds     to    Attorney         Lunde's    trust     account.            The

court's order required that the balance of funds received from

Met Life, after payment of any outstanding debts, be retained in
Attorney Lunde's trust account until further order of the court.
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      ¶10    On November 18, 2004, Attorney Lunde sent a letter to

the court saying that the J.S.'s estate had a credit balance of

$12,668.54 to be divided equally between J.S.'s minor children.

      ¶11    In 2012, after he was 18 years of age, Z.S. asked his

aunt, S.D., to assist him in obtaining the funds to which he was

entitled from his mother's estate.                  S.D. subsequently called

Attorney Lunde's office twice during the week of July 23, 2012

and left messages with a secretary.                S.D. left a third message

on   the    office   voicemail     saying    she      was   planning      a    trip    to

Viroqua on July 30.        Attorney Lunde did not return the calls.

      ¶12    On the morning of July 30, 2012, S.D. spoke with the

Register in Probate for Vernon County about Z.S's funds.                            While

S.D. was present in the office, the Register in Probate called

Attorney     Lunde   and   told    him   that      S.D.     wanted   to       see    him.

Attorney Lunde said he did not have time and asked for S.D.'s

phone   number.      Despite      obtaining     the    phone   number,        Attorney

Lunde did not call S.D.

      ¶13    During August and September 2012, S.D. called Attorney
Lunde's office several more times to inquire about Z.S.'s funds.

Each time Attorney Lunde's secretary either took a message, or

S.D. left a voice mail message.               Attorney Lunde never returned

any of the calls.

      ¶14    On November 29, 2012, the OLR sent Attorney Lunde a

letter informing that a grievance had been filed against him

regarding the money he had received in trust from Met Life in

the J.S. estate matter.           After Attorney Lunde failed to respond
to the November 29, 2012, letter the OLR sent two more letters,
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with    the    final     one    being      personally      served       upon    him    by    the

Viroqua Police Department.                 Attorney Lunde failed to respond to

any of the letters.

       ¶15     On    March     5,    2013,    this       court    issued       an    order   to

Attorney Lunde to show cause why his license to practice law

should not be suspended for his willful failure to cooperate

with the OLR's investigation.                 Attorney Lunde failed to respond

to the court order and on May 13, 2013, this court issued an

order    temporarily           suspending         Attorney        Lunde's       license       to

practice law.          The OLR subsequently reported to the court that

Attorney       Lunde    was     cooperating         in    the    investigation         of    the

grievance,      and     on    June    5,    2013,    this       court   issued       an   order

reinstating Attorney Lunde's license.

       ¶16     On July 10, 2013, Attorney Lunde told the OLR he had

been unable to locate his trust account transaction register

regarding the J.S. estate and that he had been unable to access

information related to his trust account.                          Attorney Lunde also

told    the    OLR     he    assumed    there      were    sufficient       funds      in    the
account to release to Z.S.                   He said he contacted the bank and

was informed his trust account was frozen and that the bank

would    not    provide        him   with    any     other       information        about    the

account.

       ¶17     On August 12, 2013, the OLR received records from the

Wisconsin Trust Account Foundation, Inc. (WisTAF) in response to

a subpoena.         The records revealed that on July 5, 2000, Attorney

Lunde had opened his trust account with Fortress Bank and in
2007 Fortress Bank merged into Lincoln State Bank.                                   In 2008,
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                                                                    No.    2015AP2414-D



Lincoln State Bank merged into Harris National Association, now

known as BMO Harris Bank, N.A.             The earliest records obtained by

the    subpoena      showed   the   balance       in   Attorney       Lunde's    trust

account was $1,937.30 as of November 12, 2007.                            The records

showed no activity in the trust account since that date.

       ¶18     Attorney Lunde has no monthly statements or records

relating to the trust account and cannot explain why the amount

of funds in the account as of November 12, 2007 was less than

the amount of funds belonging to Z.S., which the circuit court's

January 12, 2004 order had required Attorney Lunde hold in trust

until further order of the court.                 Attorney Lunde asserts that

the    trust    account     balanced   and      that   the    funds    were     in   his

account at the time he closed his business in May 2007 to become

the Vernon County Corporation Counsel.

       ¶19     By a letter to the OLR dated June 6, 2014, Attorney

Lunde confirmed that he had not released to Z.S. the funds that

Attorney Lunde was required to hold in trust pursuant to the

circuit court's January 12, 2004 order.                  Attorney Lunde stated
he    would    pay   Z.S.   the   funds    to    which   he   was     entitled       upon

confirmation of Z.S.'s identity.

       ¶20     Z.S. contacted Attorney Lunde by telephone on December

12, 2014, and on December 19, 2014, Attorney Lunde issued a

check to Z.S. in the amount of $6,334.27, representing one-half

(after expenses), of the funds Attorney Lunde had received from

Met Life.        The check was drawn on Attorney Lunde's personal

account at WCCU Credit Union.             The check cleared.


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    ¶21    In   the   stipulation,       the   parties   agreed    that   the

referee could enter the following conclusions of law:

    [Count 1] By failing to promptly pay Z.S. his portion
    of his mother's life insurance, [Attorney] Lunde
    violated SCR 20:1.15(d)(1).1

    [Count 2] By failing to keep the funds due and owing
    to Z.S. in his trust account, [Attorney] Lunde
    violated SCR 20:1.15(b)(1).2

    [Count 3] By failing to keep the remaining balance of
    the insurance proceeds in his trust account pending

    1
       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.

    SCR 20:1.15(d)(1) provides:

    Upon receiving funds or other property in which a
    client has an interest, or in which the lawyer has
    received notice that a 3rd party has an interest
    identified by a lien, court order, judgment, or
    contract, the lawyer shall promptly notify the client
    or 3rd party in writing. Except as stated in this rule
    or otherwise permitted by law or by agreement with the
    client, the lawyer shall promptly deliver to the
    client or 3rd party any funds or other property that
    the client or 3rd party is entitled to receive.
    2
        SCR 20:1.15(b)(1) provides:

    A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation. All funds of clients
    and 3rd parties paid to a lawyer or law firm in
    connection with a representation shall be deposited in
    one or more identifiable trust accounts.




                                     7
                                                                     No.     2015AP2414-D


       further order of the circuit court, [Attorney] Lunde
       violated SCR 20:3.4(c).3

       [Count 4] By maintaining a trust account balance that
       fell below the amount of funds received and to be held
       on behalf of Z.S., [Attorney] Lunde converted at least
       a portion of E.S.'s money in violation of SCR
       20:8.4(c).4

       [Count 5] By failing to respond to the OLR's November
       29, 2012, January 16, 2013 and February 12, 2013
       investigative letters, [Attorney] Lunde violated SCR
       22.03(2) and 22.03(6), enforced via SCR 20:8.4(h).5
       ¶22    As     noted   above,    the       parties    also    agreed     that   an

appropriate level of discipline for Attorney Lunde's misconduct

was    a    60-day      suspension    of   his    license    to     practice    law   in

Wisconsin.         The referee agreed.

       ¶23    The referee's July 21, 2016 report and recommendation

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

five counts of misconduct identified above.                        The referee noted

that the misconduct in this case arose from Attorney Lunde's

apparent failure to properly close his private law practice in

2007       when    he     accepted    employment       as    the      Vernon     County

       3
       SCR 20:3.4(c) provides:   "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
       4
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
       5
       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)."


                                             8
                                                                               No.       2015AP2414-D



Corporation Counsel.             The referee noted that the stipulation did

not    say    that   Attorney          Lunde    failed         to     make    a     proper      trust

account payment to J.S's older child, D.B., when he turned 18 in

2005.     The referee opined that a proper reconciliation of the

trust account at the time Attorney Lunde closed his private law

practice would have avoided the problems that occurred here.

       ¶24     The   referee       found        that          the     case    presented         both

aggravating and mitigating factors.                           As to aggravating factors,

the referee noted that when Z.S. turned 18 in 2012 and first

made     inquiries        about        the    funds,          Attorney       Lunde's         conduct

resulted in a delay of more than two years before the funds were

finally      paid    to    Z.S.         In     addition,            the    referee       said    that

Attorney Lunde's failure to cooperate and respond to the OLR's

various inquiries was flagrant and required unnecessary efforts

on the OLR's part.

       ¶25     As to mitigating factors, the referee again noted that

the OLR did not contend that Attorney Lunde failed to make a

proper trust account payment to D.B. when he turned 18 in 2005.
The referee said that although the payment to Z.S. was delayed,

Attorney Lunde did make full restitution of the proper amount,

presumably out of his personal funds.                               The referee noted that

Attorney Lunde ceased the active practice of law due to health

reasons in April 2016 and has no present intention of resuming

the    active    practice         of    law.           The     referee       also       noted    that

although      Attorney      Lunde       did     previously           receive        a   consensual

public       reprimand,     he     has       not       been    the        subject       of   further
discipline for more than 20 years.
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    ¶26     The referee agreed that a 60-day suspension was an

appropriate     sanction        for      Attorney     Lunde's        misconduct.            The

referee noted that a 60-day suspension was ordered by this court

in the recent case of In re Disciplinary Proceedings Against

Bartz,   2015     WI    61,    362      Wis. 2d 752,    864        N.W.2d     881.        After

Attorney Bartz settled a personal injury claim, there was an

outstanding       chiropractic           bill.        The     settlement           statement

required Attorney Bartz to hold funds in trust while he tried to

negotiate a lower payment on the bill.                        Although an agreement

was promptly reached, Attorney Bartz subsequently disbursed six

trust account checks payable to himself, leaving no funds in

trust    attributable         to     either     the   chiropractic          bill     or    the

balance owed to the client.                 This court approved a stipulation

by the parties which called for a 60-day license suspension.

    ¶27     The    referee         in    this      matter     opined     that        Attorney

Bartz's misconduct was much more egregious than the conduct of

Attorney      Lunde       in         that     Attorney         Bartz        intentionally

misappropriated         monies       held     in    trust     by    disbursing         checks
payable to himself.             The referee said there were no facts of

record establishing that Attorney Lunde intentionally disbursed

trust account checks payable to himself.                       Rather, based on the

stipulated facts, the referee said Attorney Lunde's misconduct

appeared   to     involve      neglect      and     sloppiness       rather     than       true

misappropriation.              The       referee      concluded        that     a     60-day

suspension was warranted.

    ¶28     This court will adopt a referee's findings of fact
unless   they     are    clearly        erroneous.          Conclusions       of     law   are
                                              10
                                                                No.     2015AP2414-D



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.

      ¶29   We    adopt      the    referee's    findings        of     fact      and

conclusions      of   law   that   Attorney   Lunde    violated       the   Supreme

Court Rules as alleged in the five counts set forth above.                        We

also agree with the referee that a 60-day suspension of Attorney

Lunde's license to practice law in Wisconsin is appropriate.                       In

addition to the Bartz case, we note that a 60-day suspension was

also imposed in In re Disciplinary Proceedings against Barrock,

2007 WI 24, 299 Wis. 2d             207, 727 N.W.2d 833 (six counts of

misconduct arising out of attorney's failure to hold settlement

funds subject to third-party claim in trust account) and In re

Disciplinary      Proceedings      Against    Riegleman,    2003      WI    3,    259

Wis. 2d 1, 657 N.W.2d 339 (three counts of misconduct arising
out of attorney's failure to notify lienholder of settlement and

unauthorized      endorsement      of   settlement    check).      We      find   the

misconduct at issue here to be generally analogous.                         We also

find it appropriate, as is our usual custom, to impose the full

costs of this disciplinary proceeding on Attorney Lunde.

      ¶30   IT IS ORDERED that the license of Gregory M. Lunde to

practice law in Wisconsin is suspended for a period of 60 days,

effective the date of this order.


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

of this order, Gregory M. Lunde shall pay to the Office of

Lawyer   Regulation     the     costs   of   this     proceeding,    which     are

$1,357.73.

    ¶32     IT   IS   FURTHER    ORDERED     that   Gregory   M.    Lunde    shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

suspended.

    ¶33     IT   IS    FURTHER    ORDERED      that    compliance     with    all

conditions of this order is required for reinstatement.                 See SCR

22.28(2).




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    No.   2015AP2414-D




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