                                                              2019 WI 30

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2018AP1397-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Diann P. Burton, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Diann P. Burton,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST BURTON

OPINION FILED:          March 22, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                      2019 WI 30
                                                              NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2018AP1397-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Diann P. Burton, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
           Complainant,
                                                              MAR 22, 2019
      v.
                                                                 Sheila T. Reiff
                                                              Clerk of Supreme Court
Diann P. Burton,

           Respondent.




      ATTORNEY     disciplinary     proceeding.        Attorney          publicly
reprimanded.


      ¶1   PER   CURIAM.     We   review   Referee      Kim     M.    Peterson's
recommendation that the court declare Attorney Diann P. Burton
in    default    and   publicly   reprimand      her     for       professional
misconduct in connection with her practice of law while her law
license was suspended, and her improper use of a firm name for
her solo practice.       The referee also recommended that Attorney
Burton pay the full costs of this proceeding, which total $533
as of January 15, 2019.
                                                                  No.    2018AP1397-D



      ¶2     Because    no   appeal   has     been     filed,     we    review    the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Burton's failure to
answer the complaint filed by the Office of Lawyer Regulation
(OLR), the OLR is entitled to a default judgment.                   We also agree
with the referee that Attorney Burton's professional misconduct
warrants a public reprimand.          Finally, we agree with the referee
that Attorney Burton should be ordered to pay the full costs of
the proceeding.
      ¶3     Attorney    Burton   was       admitted    to    practice      law    in
Wisconsin in 1997.           Her law license is currently subject to

administrative and temporary suspensions.                On October 31, 2016,
Attorney Burton's law license was administratively suspended due
to her failure to pay mandatory bar dues and her failure to file
a trust account certification.          On May 22, 2018, her law license
was administratively suspended due to her failure to comply with
continuing legal education requirements.                On July 10, 2018, her

law   license was temporarily suspended              due     to   her   failure    to



      1   SCR 22.17(2) provides:

           If no appeal is filed timely, the supreme court
      shall review the referee's report; adopt, reject or
      modify the referee's findings and conclusions or
      remand the matter to the referee for additional
      findings;   and   determine  and   impose  appropriate
      discipline.   The court, on its own motion, may order
      the parties to file briefs in the matter.


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                                                                     No.    2018AP1397-D



cooperate in an OLR investigation unrelated to the misconduct at
issue in this case.
       ¶4        On July 26, 2018, the OLR filed the current complaint
against Attorney Burton.               The complaint alleges four counts of
professional wrongdoing.              The following facts are taken from the
OLR's complaint.
       ¶5        In August 2014, M.B. and Y.B. hired Attorney Burton to
file a petition for a Chapter 7 bankruptcy and paid her a $1,000
flat fee for her representation.                    Attorney Burton continued to
provide legal advice to M.B. and Y.B. after her law license was
administratively           suspended    in    October     2016,   though     she    never
filed a bankruptcy petition on their behalf.

       ¶6        In addition, at the time of her administrative license
suspension in October 2016, Attorney Burton had at least eight
open bankruptcy cases pending in the United States Bankruptcy
Court for the Eastern District of Wisconsin.                         Attorney Burton
did    not       notify    her   clients     or   the   bankruptcy     court      of   the
suspension of her license and continued as counsel of record in

the pending cases while her license was suspended.                          Legal work
that       Burton    performed       while    her   law    license    was    suspended
included:
       •    filing a Chapter 7 bankruptcy petition in February 2017
            on    behalf    of   a   client,      and   representing       that    client
            through the bankruptcy discharge granted in May of 2017;
       •    filing amended Chapter 13 plans;
       •    filing responses to and stipulations resolving trustees'
            motions to dismiss; and
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                                                                No.   2018AP1397-D



     •    filing a petition for voluntary amortization of debts in
          February 2017 on behalf of another client in a Wisconsin
          circuit court.
     ¶7        Finally,   while    operating   as    a   solo     practitioner,
Attorney Burton used a law firm name and letterhead that listed
several partners, one of whom had a suspended law license.
     ¶8        The OLR's complaint alleged the following four counts
of misconduct arising out of the matters described above:
     •    By    practicing   law    while   her     license     was   suspended,
          Attorney Burton violated SCR 10.03(6)2 and SCR 22.26(2),3
          enforceable via SCR 20:8.4(f)4 (Count 1).

     2   SCR 10.03(6) provides:

          If the annual dues or assessments of any member
     remain unpaid 120 days after the payment is due, the
     membership of the member may be suspended in the
     manner provided in the bylaws; and no person whose
     membership is so suspended for nonpayment of dues or
     assessments may practice law during the period of the
     suspension.
     3   SCR 22.26(2) provides:

          An attorney whose license to practice law is
     suspended or revoked or who is suspended from the
     practice of law may not engage in this state in the
     practice of law     or in any law work activity
     customarily done by law students, law clerks, or other
     paralegal personnel, except that the attorney may
     engage in law related work in this state for a
     commercial employer itself not engaged in the practice
     of law.
     4 SCR 20:8.4(f) provides:  "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."


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•   By   failing     to   provide       proper   written    notice    of   the
    suspension of her law license to clients and to courts
    before which she had pending matters, Attorney Burton
    violated   SCR    22.26(l),5        enforceable   via    SCR    20:8.4(f)
    (Count 2).

5   SCR 22.26(1) provides:

     (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.

     (d) Within the first 15 days after the effective
date   of   suspension   or   revocation,   make   all
arrangements for the temporary or permanent closing or
winding up of the attorney's practice. The attorney
may assist in having others take over clients' work in
progress.

     (e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:

                                                                  (continued)
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                                                    No.    2018AP1397-D



    •     By using a law firm name that listed several partners
          despite operating as a solo practitioner, Attorney Burton
          violated SCR 20:7.5(d)6 (Count 3).
    •     By using the name of a suspended attorney in her firm
          name   and    letterhead,   Attorney    Burton     violated
          SCR 22.27(l),7 enforceable via SCR 20:8.4(f) (Count 4).
    ¶9      According to the OLR's motion for default, to which
Attorney Burton did not respond, the OLR made multiple attempts
to serve Attorney Burton with the complaint and an order to
answer.     Specifically, in August and September 2018, a process


         (i) Full compliance with the provisions of the
    suspension or revocation order and with the rules and
    procedures regarding the closing of the attorney's
    practice.

         (ii) A list of all jurisdictions, including
    state, federal and administrative bodies, before which
    the attorney is admitted to practice.

         (iii) A list of clients in all pending matters
    and a list of all matters pending before any court or
    administrative agency, together with the case number
    of each matter.

         (f) Maintain records of the various steps taken
    under this rule in order that, in any subsequent
    proceeding instituted by or against the attorney,
    proof of compliance with the rule and with the
    suspension or revocation order is available.
    6  SCR 20:7.5(d) provides: "Lawyers may state or imply that
they practice in a partnership or other organization only when
that is the fact."
    7  SCR 22.27(1) provides: An attorney may not use in a firm
name, letterhead or other written form the name of an attorney
whose license is suspended or revoked.


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                                                           No.      2018AP1397-D



server retained by the OLR tried to personally serve Attorney
Burton    with   the   complaint   and   order   to   answer   at    the   home
address that Attorney Burton had provided to the OLR during its
investigation, as well as her office address on file with the
State Bar.       These attempts were unsuccessful.        In October 2018,
the OLR mailed the complaint and order to answer to Attorney
Burton's home address and her office address on file with the
State Bar, via certified mail.       See SCR 22.13(1).8

     ¶10    Attorney Burton failed to file an answer.            In November
2018, the OLR filed a default motion.
     ¶11    In her ensuing report, the referee recommended that
the court find Attorney Burton in default.            The referee accepted

the allegations of the complaint as the findings of fact in the
case and concluded that those facts established that Attorney
Burton had committed professional misconduct as set forth in the
four counts of the complaint.            As requested by the OLR, the
referee recommended that Attorney Burton be publicly reprimanded
for her misconduct and that she be ordered to pay the costs of
the proceeding.

     8   SCR 22.13(1) provides:

          The complaint and the order to answer shall be
     served upon the respondent in the same manner as a
     summons under section 801.11(1) of the statutes. If,
     with reasonable diligence, the respondent cannot be
     served under section 801.11(1)(a) or (b) of the
     statutes, service may be made by sending by certified
     mail an authenticated copy of the complaint and order
     to answer to the most recent address furnished by the
     respondent to the state bar.


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                                                                       No.     2018AP1397-D



       ¶12   Because Attorney Burton has not filed an appeal, this
matter is submitted to the court for its review pursuant to
SCR 22.17(2).           We review a referee's findings of fact subject to
the    clearly      erroneous          standard.         See   In    re      Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675   N.W.2d 747.          We review the referee's              conclusions        of law
de novo.     Id.        We determine the appropriate level of discipline
independent        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.
       ¶13   We agree with the referee that Attorney Burton should
be    declared      in     default.           Attorney     Burton      was    given     the

opportunity to file an answer and present a defense to the OLR's
complaint.        She failed to do so, and thus may appropriately be
declared in default.              We also accept the referee's findings of
fact based on the allegations of the complaint, and agree with
the    referee     that     those      findings      support    a    determination       of
misconduct on the four counts alleged in the OLR's complaint.
       ¶14   We also agree with the referee that a public reprimand
is    an   appropriate      sanction         for   Attorney    Burton's       misconduct.
Although no two disciplinary proceedings are identical, a public
reprimand is generally consistent with our precedent.                          See In re
Disciplinary       Proceedings         Against      Willihnganz,     2017     WI   4,   373
Wis. 2d 44, 889 N.W.2d 637 (publicly reprimanding a respondent-
lawyer     with    a     disciplinary        history   for,    among      other    things,
practicing        law     after    his       law   license     was   administratively
suspended);       see     also    In    re    Disciplinary      Proceedings        Against
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                                                                         No.        2018AP1397-D



Weigel, 2012 WI 71, 342 Wis. 2d 129, 817 N.W.2d 835 (publicly

reprimanding       the   respondent-lawyer            for,       among     other       things,
continuing to use another attorney's name in a firm name after
that attorney's employment at the firm had ended).                                    We also
believe    that a public reprimand                 will     be    sufficient         to deter
Attorney Burton and other attorneys from similar misconduct.
     ¶15    As to the issue of costs, it is our general practice
to   impose      full    costs    on    attorneys          who    are    found        to   have
committed misconduct.            See SCR 22.24(1m).              There is no reason to
depart from that practice here.               We therefore impose full costs.
     ¶16    Finally, we note that no restitution was sought and
none is ordered in this proceeding.

     ¶17    IT     IS    ORDERED       that       Diann    P.     Burton       is     publicly
reprimanded for her professional misconduct.
     ¶18    IT IS FURTHER ORDERED that within 60 days of the date
of this order, Diann P. Burton shall pay to the Office of Lawyer
Regulation the costs of this proceeding.
     ¶19    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 decision.
     ¶20    IT IS FURTHER ORDERED that the license of Diann P.
Burton to practice law in Wisconsin shall remain temporarily
suspended pursuant to this court's July 10, 2018 order.
     ¶21    IT     IS     FURTHER       ORDERED           that    the      administrative
suspension    of    Diann    P.    Burton's         license       to    practice       law   in
Wisconsin, due to her failure to pay mandatory bar dues, failure
to file a trust account certification, and failure to comply
                                              9
                                                        No.    2018AP1397-D



with   continuing   legal   education   requirements,   will   remain   in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).




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