                                                                       2019 WI 81

                  SUPREME COURT               OF    WISCONSIN
CASE NO.:               2014AP2528-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Kathleen Anna Wagner, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Kathleen Anna Wagner,
                                  Respondent-Appellant.

                               DISCIPLINARY PROCEEDINGS AGAINST WAGNER

OPINION FILED:          July 3, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 21, 2019

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   ABRAHAMSON, J. withdrew from participation.

ATTORNEYS:


       For the respondent-appellant, there was a brief filed by
Kathleen      A.     Wagner,    Madison.    There   was   an   oral   argument   by
Kathleen A. Wagner.


       For the complainant-respondent, there was a brief filed by
William      J.     Weigel   and   Office   of   Lawyer   Regulation,    Madison.
There was an oral argument by William J. Weigel.
                                                                     2019 WI 81
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2014AP2528-D


STATE OF WISCONSIN                         :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Kathleen Anna Wagner, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
            Complainant-Respondent,
                                                              JUL 3, 2019
       v.
                                                                Sheila T. Reiff
                                                             Clerk of Supreme Court
Kathleen Anna Wagner,

            Respondent-Appellant.




       ATTORNEY disciplinary proceeding.         Professional misconduct
found; no discipline imposed.


       ¶1   PER    CURIAM.    Attorney   Kathleen        Anna     Wagner       has
appealed a report filed by Referee James C. Boll, concluding
that    Attorney   Wagner    committed   two    counts      of    professional
misconduct and recommending that she be privately reprimanded.
The Office of Lawyer Regulation (OLR) has now that asked one of
those counts be dismissed.        Thus, what is before the court is
Attorney Wagner's challenge to the referee's conclusion that she
violated Supreme Court Rule (SCR) 20:1.5(b)(3).              Attorney Wagner
                                                                         No.       2014AP2528-D



has also challenged the referee's recommendation that she be
assessed the full costs of this proceeding.
     ¶2       Upon careful review of this matter, we conclude that
although      Attorney   Wagner      did    violate       SCR       20:1.5(b)(3),           the
violation does not warrant the imposition of any discipline.                                In
addition, we find it appropriate, under the unique facts of this
case, to depart from our normal custom of imposing full costs,
which are $40,639.72 as of March 4, 2019.                       Instead, we deem it
appropriate to require Attorney Wagner to pay $4,500 in costs.
     ¶3       Attorney   Wagner      was       admitted       to    practice          law    in
Wisconsin in 1983.          She practices in Madison.                She has no prior
disciplinary history.

     ¶4       On   October    31,    2014,       the    OLR        filed       a    complaint
alleging three counts of misconduct with respect to Attorney
Wagner's trust, estate, and tax work for the G. family.                                 W.G.,
the matriarch of the family, first met with Attorney Wagner on
April   10,    2008   and    asked    Attorney         Wagner       to     provide       legal
services regarding completing her late husband's estate, funding

a living trust of which W.G. was the trustee, and completing her
tax return.
     ¶5       During this initial meeting, W.G. executed a written
representation      agreement.        The      agreement       called       for      Attorney
Wagner to bill W.G. on an hourly basis at a rate of $250 per
hour.     The agreement also stated that it was Attorney Wagner's
practice to bill for services "upon completion" of the matter,
although   she retained discretion to                  bill     on a       more frequent
basis when the fees exceeded the amount of the initial payment.
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                                                              No.     2014AP2528-D



In addition to signing the representation agreement, W.G. also
gave Attorney Wagner a check for $500.
     ¶6     After meeting with W.G. for an hour on April 10, 2008,
Attorney Wagner had a 90-minute conversation with W.G.'s prior
attorney a few days later.            During that conversation, Attorney
Wagner learned that numerous marital property assets had not
been transferred into the living trust; no one completed the
process of transferring those assets into the living trust prior
to the death of W.G.'s husband in November 2006; and a number of
sub-trusts needed to be created and funded.
     ¶7     Attorney       Wagner     contends     that,     based        on   her
conversations with predecessor counsel, she learned that W.G.

was attempting to transfer into the living trust two parcels of
waterfront land in Adams county for which she did not have good
title    because   of    violations    of   the   Statute    of   Frauds.       In
addition, Attorney Wagner claims she learned that W.G. had not
properly segregated income between herself and the living trust,
nor had she filed proper tax returns.                   As a result of these

discoveries, Attorney Wagner claims that, at a July 30, 2008
meeting, she offered to return to W.G. the uncashed $500 check
and the files she had obtained from predecessor counsel.                       W.G.
refused to accept the check, and Attorney Wagner retained it.
Attorney Wagner again met with W.G. on September 19, 2008, at
which    time   Attorney    Wagner    submitted    correspondence         to   W.G.
laying    out   her     proposed    plan    for   the    estate     and    trusts.
Attorney Wagner deposited the $500 check into her client trust
account on October 10, 2008.
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     ¶8        According to Attorney Wagner, in late 2008 and early
2009, while W.G. was experiencing health issues and learned that
she had a short period of time left to live, W.G. was being
pressured about who would be in control of the family assets and
handle    their       disposition    after       her    death.      Attorney        Wagner
states that W.G.'s third eldest child, T.G., a Virginia lawyer
who practiced family law, was seeking to take over control of
the family's finances.          W.G. resisted the pressure and obtained
agreements from her four             children that             W.G. would      remain   in
control of the finances.
     ¶9        On January 17, 2009, W.G. signed a new representation
agreement.       W.G. authorized Attorney Wagner to transfer assets

from the living trust to a family trust and a marital survivor's
trust.     Attorney Wagner asserts there was a rush to transfer
into the living trust the remaining marital assets that should
have been transferred long before.                      Attorney Wagner said she
worked nights and weekends, including 16-hour or more days, to
accomplish those transfers.

     ¶10       W.G. passed away        in    February      2009.        Her    son,   J.G.
became    the    successor     trustee      of    the    W.G.     marital      survivor's
trust    and    the    G.   family   trust.        At     or    after    W.G.'s     death,
certain     beneficiary       trusts     came      into    existence          for   W.G.'s
children.
     ¶11       At some point in 2009, J.G. and T.G. began to ask
Attorney Wagner about her fees and the preparation of invoices.
In November 2009, J.G. sent Attorney Wagner an email expressly
requesting her to provide him with an invoice for her services.
                                            4
                                                                           No.   2014AP2528-D



On January 15, 2010, Attorney Wagner and J.G. entered into a
"Fee Dispute Procedure" agreement.                     On that same date, as part
of the agreement, J.G. gave Attorney Wagner two checks.                                    The
first    check,      for     $113,000,      was      made       payable    to    Wagner    Law
Offices      S.C.    and     was    apparently        intended       to    be    applied    by
Attorney     Wagner     toward      her    fees.          The    second     check,   in    the
amount of $47,000, was made payable to Attorney Wagner's client
trust account and carried the notation "disputed fee for court
to decide."         Under the agreement, Attorney Wagner was to provide
a detailed billing to J.G. by February 15, 2010.
     ¶12       Attorney Wagner claims that during late 2009 and early
2010,    T.G.    began       to    cause    problems        and     interfere      with    her

working relationship with J.G.                      On January 5, 2010, T.G. sent
Attorney     Wagner     an    email       saying     he     would    be     in   Madison    on
January 16-18 and that he wanted her to provide an invoice and
back-up receipts to J.G. by that date.                      On January 8, 2010, T.G.
filed    a   demand     for       fee   arbitration         with     the    State    Bar   of
Wisconsin.

     ¶13       In April 2010, T.G. filed a grievance against Attorney
Wagner with the OLR.              In July 2010, T.G. filed a lawsuit in Dane
County Circuit Court against Attorney Wagner and her law firm on
behalf    of    himself,      J.G.,       and   his    two       other     siblings.       The
complaint asked for a declaratory judgment as to the amount of
fees that Attorney Wagner was owed.
     ¶14       In April 2011, in the course of the lawsuit, the G.
siblings served a request asking Attorney Wagner to produce any
documents identifying any compensable legal services provided to
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                                                                     No.    2014AP2528-D



W.G.,   her    agent,       or   her   successor-death       trustee,      J.G.      The
circuit     court    issued      an    order    requiring     Attorney      Wagner   to
prepare and send her invoices to the plaintiffs by June 14,
2011.     On June 6, 2011, Attorney Wagner filed a request for an
extension of time, which the court denied.                    Attorney Wagner did
not submit the invoices by June 14, 2011.                    Attorney Wagner later
renewed her motion for an extension of time, this time including
a   supporting      affidavit      from   her    doctor.       The    circuit     court
granted a stay of all discovery in the case from June 22, 2011
to October 4, 2011, due to Attorney Wagner's health.
      ¶15     When the stay expired, the circuit court issued an
order scheduling Attorney Wagner's deposition for November 14,

2011 and requiring her to submit to J.G. "an annotated bill for
services provided by Wagner Law Offices, S.C."                       Attorney Wagner
did not provide the invoices by November 1, 2011.                          The circuit
court held another scheduling conference on November 30, 2011,
and established a new deadline of January 3, 2012 for Attorney
Wagner to provide her legal invoices.                 Attorney Wagner met that

deadline when she submitted her invoices on January 3, 2012.
This was approximately 25 months after J.G. had made his initial
written request, via email, for the invoices.
      ¶16     The OLR acknowledged at oral argument that on April
24, 2013, the circuit court found that Attorney Wagner did not
overcharge the G. siblings for her legal services and in fact
she had under billed.            Following the circuit court's ruling, the
parties     reached     a    settlement    as    to   fees    and    the    plaintiffs
voluntarily dismissed their lawsuit.
                                           6
                                                 No.   2014AP2528-D



    ¶17    The OLR's complaint alleged the following counts of
misconduct:

    Count 1: By failing to deposit W.G.'s $500 check for
    advanced fees into her IOLTA trust account for six
    months, Attorney Wagner violated SCR 20:1.15(b)(4).1

    Count 2:     By failing to respond to her client's
    request for her billing invoice for at least 25
    months,     Attorney    Wagner    violated  former
    SCR 20:1.5(b)(3).2

    Count 3: By initially asserting that she was entitled
    to legal fees of $167,000 for her services without
    providing any invoice, then by billing $85,575 for her
    services, all at $350 per hour despite a fee agreement
    to the contrary, when the reasonable fee for her
    services was $64,927.50 plus $102.30 for mileage,
    Attorney Wagner charged an excessive fee in violation
    of SCR 20:1.5(a).3

    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, 2016 WI 21 (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.

    Former SCR 20:1.15(b)(4) provided:

         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.
    2  SCR 20:1.5(b)(3) provides:  "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses.
    3   SCR 20:1.5(a) provides:

           A lawyer shall not make an agreement for, charge
    or    collect an unreasonable fee or an unreasonable
                                                     (continued)
                                  7
                                                      No.   2014AP2528-D



     ¶18   Attorney Wagner filed an answer to the complaint on
December 8, 2014.     The referee was appointed on January 22,
2015.
     ¶19   After extensive litigation, both the OLR and Attorney
Wagner moved for summary judgment.   On May 17, 2017, the referee
issued his report granting summary judgment in favor of the OLR
as to Counts 1 and 2 of the complaint.4    With respect to Count 1,

     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;

          (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 On August 16, 2016, the OLR voluntarily dismissed Count 3,
saying its decision was based on the OLR's receipt of additional
information from witnesses during litigation, a thorough review
of the underlying Dane county proceeding, and consultation with
its expert on the fee issue.


                                 8
                                                                           No.     2014AP2528-D



the referee found that by failing to deposit W.G.'s $500 check
into her trust account for six months Attorney Wagner violated
SCR 20:1.15(b)(1), which states:

      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.5
      ¶20     With      respect     to   Count       2,   the    referee          noted    that
Attorney Wagner indicated she was unable to prepare an invoice
for   legal      services      because    T.G.       failed     to    provide       her    with
certain documents.              The referee stated he did not find that
argument      to       be   credible     since       an   attorney         does     not    need

ancillary     documents        in   order to create             legal      invoices.          The
referee also pointed out that Attorney Wagner did eventually
produce legal invoices without the documents she claimed she
needed.
      ¶21     The referee noted that between August 2009 and January
3, 2012, both T.G. and J.G. sought to obtain legal invoices from

Attorney Wagner on numerous occasions, and they also sought to
enter     into     a    fee   dispute     procedure       with       the    State       Bar    of
Wisconsin.         In       addition,    the       referee    said      the      Dane     County
Circuit Court ordered Attorney Wagner to produce legal invoices,

      5Count 1 of the OLR's complaint alleged that Attorney
Wagner's failure to deposit W.G.'s $500 check for advanced fees
into her IOLTA trust account for six months constituted a
violation of SCR 20:1.15(b)(4), a different subsection of the
rule than appeared in the summary judgment material.


                                               9
                                                                   No.    2014AP2528-D



but Attorney Wagner failed to comply with those court orders.
The referee said the record was clear, and there was no material
issue of fact that Attorney Wagner failed to provide invoices
for   legal services for         25    months, despite       requests       from    her
client and his family and despite multiple court orders.
      ¶22     The   referee    noted     that   Attorney        Wagner    offered    a
number   of    mitigating      factors    as    to   why   she    did    not   timely
produce the invoices:          her hard drive crashed; she was unable to
provide invoices because the G. family did not produce documents
necessary to complete the invoices; and her failure to produce
the invoices was due to ongoing serious medical issues.                             The
referee said if those statements were true, those reasons would

go toward mitigation of discipline, not to whether a violation
of a supreme court rule occurred.
      ¶23     As to the appropriate sanction for the two counts of
misconduct, the referee found that Attorney Wagner's violation
of SCR 20:1.15(b)(1) was de minimis and that discipline was not

appropriate.        As to Attorney Wagner's failure                to     respond    to
numerous requests to provide legal invoices, the referee took
into account Attorney Wagner's medical condition and with that
mitigating factor the referee concluded that a private reprimand
was an appropriate sanction.
      ¶24     In her appeal, Attorney Wagner argues that the referee
wrongly concluded that she violated SCR 20:1.5(b)(3) because she
was   "blocked"     by   her   client    from    access    to    the     records    she
needed to finalize invoices for work she performed.                         Attorney
Wagner appears to argue that she would have been able to produce
                                         10
                                                                      No.     2014AP2528-D



the invoices much sooner if T.G. had not interfered.                              She also
seems to assert that since she did not keep contemporaneous time
records she needed all of the documents she prepared for W.G. in
order to recreate accurate bills.               She also apparently believes
she was not obligated to provide invoices for her services until
those    services    were    completed        and   there       had     been      a     court
decision on how the advanced fees were to be allocated.
     ¶25    As to Count 1 of the OLR's complaint concerning the
failure    to   deposit     the   $500    check     for    six    months,         Attorney
Wagner    contends that she exercised               her   right       to rescind         the
April 2008 representation agreement because she learned W.G. had
withheld    material   information        during     their       initial       April      10,

2008 meeting.       Attorney Wagner seems to imply that because she
rescinded    the    representation       agreement,       she     did       not   have    an
attorney-client      relationship        with   W.G.      during      the      period     of
April to October 2008 and, as a result, she had no obligation to
deposit the $500 check into her client trust account.                             She does
not explain, however, why, if she rescinded the representation

agreement, she was not immediately obligated to return the check
to W.G.     Attorney Wagner also seems to advance the contradictory
argument    that    because       she    "earned"      the      $500        fee    by     her
"exploratory work," she did not have to place the $500 check
into her client trust account.            She fails to explain why she had
"earned" the fee if in fact she had rescinded the representation
agreement, nor does she explain why she ultimately placed the
$500 into her client trust account in October 2008 if she had
already "earned" it.
                                         11
                                                                       No.     2014AP2528-D



      ¶26    The OLR has asked this court to dismiss Count 1 of the
complaint     because        the   violation        found    by    the       referee,    as
requested by the OLR in its summary judgment motion, does not
match the violation alleged in the complaint.                          Count 1 of the
complaint alleged that Attorney Wagner's failure to deposit the
$500 check from W.G. for several months constituted a violation
of SCR 20:1.15(b)(4), which requires that "unearned fees and
advanced payments of fees shall be held in trust until earned by
the lawyer, and withdrawn pursuant to sub. (g)."                               The OLR's
summary     judgment     motion      asked    the    referee      to   find     that     the
failure     to   deposit       the    check       constituted      a     violation        of
SCR 20:1.15(b)(1), which provides that "a lawyer shall hold in

trust, separate from the lawyer's own property, that property of
clients and 3rd parties in the lawyer's possession in connection
with a representation."            It was this rule that the referee found
had been violated.            The OLR says the summary judgment motion
inadvertently misstated which rule had been violated and while
it   continues    to     believe      that    Attorney       Wagner      violated       both

subsections      of    SCR    20:1.15,   it       suggests    that     the     most     fair
result for Attorney Wagner is that Count 1 be dismissed.
      ¶27    As to Count 2 of the complaint, the OLR says this is a
straightforward matter of Attorney Wagner taking over two years
to produce invoices after J.G. first asked for the preparation
of final bills.         The OLR says during that two-year time frame, a
circuit court issued multiple orders requiring Attorney Wagner
to provide invoices for her work, but she failed to comply with
those orders.         While Attorney Wagner said she was prevented from
                                             12
                                                                                No.     2014AP2528-D



producing the invoices because T.G. would not produce certain
documents to her, the OLR points out that Attorney Wagner was
ultimately      able    to    produce         invoices        without       those        requested
documents.       Thus,       the       OLR     argues       it    was     not     the     lack     of
documents that delayed the production of the invoices.                                     The OLR
says the undisputed facts as found by the referee support the
conclusion that Attorney Wagner failed to promptly respond to
her   client's     request         for       fee     information,          in     violation        of
SCR 20:1.5(b)(3).
      ¶28   Attorney         Wagner         does     not    specifically              address     the
issue of the appropriate sanction in her brief.                                       Instead, she
argues   that    both    Counts         1     and    2     should   be     dismissed         so    no

discipline should be imposed.
      ¶29   The OLR argues that, even with the dismissal of Count
1, the proper level of discipline for Count 2 would be a private
reprimand.
      ¶30   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.
      ¶31   As an initial matter, we accede to the OLR's request
to dismiss Count 1.
      ¶32   Turning      to       Count       2,     after       careful       review      of     the
matter, we conclude there has been no showing that any of the
                                                13
                                                                          No.        2014AP2528-D



referee's findings of fact are clearly erroneous.                               Accordingly,
we adopt them.               We further agree with the referee's conclusion
of    law       that    Attorney     Wagner        violated    SCR       20:1.5(b)(3)           by
failing, for more than two years, to prepare and submit invoices
for legal work she performed on behalf of the G. family.                                   While
T.G.'s actions no doubt irritated Attorney Wagner and some of
his       actions      may    have   been    without        merit    or    justification,
Attorney         Wagner       nonetheless    had     an     obligation          to     promptly
respond         to   requests      for    billing    information.           In        addition,
Attorney Wagner failed to keep contemporaneous time records as
she went along that would have enabled her to prepare an invoice
in    a    timely      fashion.          Although    the     referee      concluded           that

Attorney Wagner's health problems were a mitigating factor, she
has failed to present evidence to show that her health problems
prevented        her from preparing           the    invoices       for    the entire          25
month      period      of    the   delay.     Accordingly,          we    agree       with    the
referee that Attorney Wagner violated SCR 20:1.5(b)(3).
          ¶33    In spite of the fact that we agree that the OLR met

its burden of proof as to Count 2, we decline to impose any
discipline.             Although     there     was     an     unacceptable            delay    in
Attorney Wagner's producing the invoices, this case appears to
present a unique set of circumstances that are unlikely to be
repeated in Attorney Wagner's future practice of law.                                  For that
reason, even though we agree that there was a violation of a
supreme court rule, we opt not to impose any sanction.
          ¶34    The OLR advises that it is not seeking a restitution
award, and we do not order restitution.                       The remaining issue to
                                              14
                                                                         No.    2014AP2528-D



be resolved in this matter is the issue of costs.                              The referee
recommends     that     Attorney     Wagner        bear   the     full       costs    of    the
proceeding.         The OLR agrees.        Attorney Wagner believes no costs
should   be    imposed.         Assessment       of     costs     in    OLR    matters       is
governed by SCR 22.24.
     ¶35      Our     general     policy      is      that      upon     a     finding       of
misconduct     it     is     appropriate    to      impose      all     costs    upon       the
respondent.         In some cases the court may, in the exercise of its
discretion,         reduce     the   amount        of     costs        imposed       upon     a
respondent.           In     exercising     our         discretion       regarding          the
assessment of costs, we consider the statement of costs, any
objection and reply, the recommendation of the referee, and all

of the following factors:

     (a)      The number        of   counts      charged,        contested,          and
              proven.

     (b)      The nature of the misconduct.

     (c)      The level of discipline sought by the parties and
              recommended by the referee.

     (d)      The    respondent's             cooperation              with          the
              disciplinary process.

     (e)      Prior discipline, if any.

     (f)      Other relevant circumstances.

See SCR 22.24(1m)
     ¶36      The complaint in this matter alleged three counts of
misconduct and originally sought a 60-day suspension of Attorney

Wagner's license.          Although the Dane County Circuit Court issued
a decision in April of 2013 concluding that Attorney Wagner may


                                           15
                                                                      No.        2014AP2528-D



well   have     undercharged      for   the      work    she    performed,          in     its
October 31, 2014 complaint the OLR nevertheless alleged that
Attorney Wagner had charged an excessive fee.                     The OLR dismissed
Count 3 of the complaint and changed the sanction it was seeking
to a reprimand in August 2016.                   After the referee issued his
report, the OLR agreed to dismiss Count 1, leaving only Count 2,
which arose out of Attorney Wagner's lengthy delay in submitting
invoices for the legal work she performed.
       ¶37    Count 3 of the complaint, which alleged that Attorney
Wagner       charged    an     excessive        fee     for    her    services,            was
undisputedly the most serious charge lodged by the OLR.                                     We
conclude that if Count 3 had not been charged, the costs in this

matter would have been far less.                 We conclude that absent Count
3 the costs would have been approximately $4,500.                           Thus, under
the    extraordinary         circumstances       of     this   case,        we     deem    it
appropriate to assess $4,500 in costs.
       ¶38    IT IS ORDERED that Count 1 of the OLR's complaint is
hereby dismissed.

       ¶39    IT   IS   FURTHER    ORDERED       that    we    find    Kathleen           Anna
Wagner       violated    SCR     20:1.5(b)(3);          however       we     impose        no
discipline.
       ¶40    IT IS FURTHER ORDERED that within 60 days of the date
of this order, Kathleen Anna Wagner shall pay to the Office of
Lawyer Regulation costs in the amount of $4,500.
       ¶41    SHIRLEY S. ABRAHAMSON, J., withdrew from participation
prior to oral argument.


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    No.   2014AP2528-D




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