                                                             2014 WI 116

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2013AP1791-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Everett E. Wood, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Everett E. Wood,
                                  Respondent.



                             DISCIPLINAARY PROCEEDINGS AGAINST WOOD

OPINION FILED:          October 21, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2014 WI 116
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2013AP1791-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Everett E. Wood, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
              Complainant,
                                                                    OCT 21, 2014
       v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Everett E. Wood,

              Respondent.




       ATTORNEY      disciplinary       proceeding.         Attorney's          license

suspended.



       ¶1     PER   CURIAM.    On    June   10,       2014,     Referee      James      J.

Winiarski issued a report recommending that Attorney Everett E.

Wood's license to practice law in Wisconsin be suspended for 90

days    for     professional        misconduct,        as     recommended         in     a

stipulation executed by the Office of Lawyer Regulation (OLR)

and Attorney Wood.          The referee also recommended that Attorney

Wood be required to pay the full costs of this proceeding, which
are $2,191.38 as of June 30, 2014.
                                                                           No.      2013AP1791-D



       ¶2   We agree that Attorney Wood's professional misconduct

warrants a 90-day suspension.                We also agree that Attorney Wood

should be ordered to pay the full costs of the proceeding.

       ¶3   Attorney       Wood    was       admitted        to     the    State       Bar   of

Wisconsin on June 17, 1992.              He resides in Richfield, Wisconsin.

Effective March 1, 2013, Attorney Wood's license to practice law

was    suspended   for     a   period     of     six    months       for       28   counts    of

misconduct committed in seven client matters.                             That misconduct

involved lack of diligence, lack of communication, failure to

hold funds in trust, and failure to cooperate with the OLR's

investigation.        In    re    Disciplinary          Proceedings         Against       Wood,

2013 WI 11,    345 Wis. 2d 279,           825 N.W.2d 473.                 Attorney       Wood's

license     remains        suspended;         he       has    not         petitioned         for

reinstatement.

       ¶4   All the allegations of misconduct in the matter now

before the court stem from Attorney Wood's representation of

S.H.

       ¶5   In January 2010, S.H. hired Attorney Wood to represent
S.H. and his wife in a dispute with a construction company,

GSI General, Inc. (GSI).              In October of 2010, S.H. gave Attorney

Wood $400 for future litigation expenses or costs.                                    Attorney

Wood agreed to represent S.H. for a one-third contingency fee.

Attorney Wood did not provide S.H. with a written fee agreement.

Attorney    Wood   did     not    hold    the        entire       $400    in     trust   until

expended.     Attorney         Wood    did     not     maintain      individual          client

registers or a transaction register for his trust account.


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       ¶6        In March of 2011, Attorney Wood filed suit against GSI

on behalf of S.H.              In October of 2011, S.H. and GSI settled the

lawsuit after mediation.                GSI agreed to pay S.H. as follows:

$6,000      on    or    before    February        1,    2012;   $2,300    on   or   before

May 1, 2012; and $1,700 on or before October 1, 2012.

       ¶7        S.H. departed before the negotiation was complete, so

Attorney Wood signed the agreement on S.H.'s behalf.                             Attorney

Wood did not send a copy of the settlement agreement to S.H.

       ¶8        On or around October 12, 2011, the mediator sent a

bill for $385 to Attorney Wood.                        Attorney Wood did not timely

pay this bill, despite having received $400 from S.H. towards

costs.

       ¶9        On February 1, 2012, GSI's attorney issued a check for

$6,000 payable to Attorney Wood's trust account.                          The next day,

Attorney Wood deposited $6,000 into his trust account but did

not promptly notify S.H., in writing, that Attorney Wood had

received GSI's initial settlement payment.

       ¶10       On    February    3,   2012,     Attorney      Wood   withdrew     $1,866
from     his      trust       account   in    a     cash    transaction,       presumably

reflecting his fee portion of the first settlement payment, but

did not provide S.H. with a settlement accounting at the time.

       ¶11       In    February    2012,     S.H.      called   and    emailed   Attorney

Wood to inquire about the settlement payment but could not reach

him.        Later      that    month,   Attorney        Wood    made   additional     cash

withdrawals from his trust account.                     By that time, Attorney Wood

had spent $269 in filing fees and $64 serving the complaint out
of the $400.            Therefore, $67 attributable to S.H. should have
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remained in Attorney Wood's trust account, but his trust account

balance was below $36 for multiple days in February 2012.

    ¶12     On   March   1,   2012,    S.H.    filed      a   grievance      against

Attorney Wood.       On or about March 13, 2012, Attorney Wood sent

S.H. a cashier's check for $4,133, representing S.H.'s portion

of the first settlement payment together with a refund of the

$400 reflecting pre-paid expenses.             Attorney Wood also provided

a settlement statement.

    ¶13     On March 21, 2012, the OLR wrote to Attorney Wood,

requiring his written response to the grievance by April 13,

2012.      Attorney Wood did not respond to this inquiry or to

several subsequent requests for information.

    ¶14     On May 3, 2012,       GSI's attorney issued a check for

$2,300 payable to Attorney Wood's trust account.                     The next day,

Attorney Wood deposited these funds into his trust account.                         On

May 7, 2012, Attorney Wood advised S.H. by email that he had

received the second payment.

    ¶15     On May 8, 2012, Attorney Wood withdrew $766 from his
trust account.       On May 10, 2012, Attorney Wood withdrew another

$1,544 from his trust account.              That same day, he sent S.H. a

cashier's check for $1,534, representing S.H.'s portion of the

second payment.

    ¶16     On May 11, 2012,          the   OLR received a response from

Attorney     Wood,    partially     responsive       to       its     investigative

request.      However,   Attorney      Wood   then     failed       to    respond   to

follow-up requests for more information until the OLR moved this


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court     for      an   order   temporarily        suspending      Attorney     Wood's

Wisconsin law license for non-cooperation.

      ¶17     On August 12, 2013, the OLR filed a complaint alleging

that Attorney Wood had engaged in seven counts of misconduct

based on his representation of S.H.                  On or about February 13,

2014, following the filing of an answer and the appointment of

the referee, the parties executed a stipulation and no contest

plea, pursuant to which Attorney Wood pled "no contest" to the

counts alleged and agreed that the allegations of the complaint,

as amended in the stipulation, could be used as a factual basis

for   a   determination         of   his    misconduct.      Both     the     OLR   and

Attorney Wood agreed that a 90-day suspension was appropriate.

      ¶18     As    part   of    the      stipulation     between     the     parties,

Attorney Wood noted the following:

             that the arrangement between S.H. and Attorney Wood

              permitted     S.H.     to    elect   the   billing    method     (either

              hourly or contingent) once it was known if they would

              obtain attorney fees from the defendant;
             that the mediator's bill was eventually paid;

             that S.H. was informed of the settlement accounting in

              detail, knew that the check was received and of the

              amount he was to receive, and failed to return the

              disbursement register that was sent to him confirming

              receipt of funds and approving disbursement to him per

              his selected billing manner;




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                that   after      February       2012,    Attorney    Wood        did    not

                 receive further communication from                 S.H.     until early

                 March 2012;

                that Attorney Wood sent S.H. a check for $4,133 after

                 receiving      confirmation        that    S.H.      had     elected       a

                 contingency billing method; and

                that Attorney Wood responded to the OLR's April 18,

                 2012 letter, although not timely.

       ¶19       The referee afforded both parties the opportunity for

further         briefing     and    directed       the    parties     to     address      the

appropriate effective date for discipline and whether Attorney

Wood       had    sought     reinstatement          in    relation     to     his        prior

suspension.

       ¶20       The referee reviewed the complaint and stipulation and

other filings of the parties and concluded that Attorney Wood

committed         the   seven      counts     of    misconduct       alleged        in    the

complaint.          Specifically,      the     complaint      alleged,       the    parties

stipulated, and the referee concluded:

            [Count One] By failing to provide his client,
       [S.H.], a written fee agreement setting forth the
       terms of their contingent fee arrangement and to
       obtain his signature thereon, [Attorney] Wood violated
       SCR 20:1.5(c).1
       1
           Supreme Court Rule (SCR) 20:1.5(c) provides:

            A fee may be contingent on the outcome of the
       matter for which the service is rendered, except in a
       matter in which a contingent fee is prohibited by
       par. (d) or other law. A contingent fee agreement
       shall be in a writing signed by the client, and shall
       state the method by which the fee is to be determined,
                                                       (continued)
                                              6
                                                No.   2013AP1791-D


         [Count Two] By failing to keep [S.H.] informed
    about the status of the settlement payment and by
    failing   to   respond    to   [S.H.'s]  requests   for
    information about the status of the settlement funds
    that   [S.H.]  was   due,    [Attorney] Wood   violated
    SCR 20:1.4(a)(3) and (4).2

         [Count Three] By failing to hold his client's
    settlement funds in trust from the time that he
    received the funds until he disbursed the funds to his
    client, [Attorney] Wood violated SCR 20:1.15(b).3



    including the percentage or percentages that shall
    accrue to the lawyer in the event of settlement, trial
    or appeal; litigation and other expenses to be
    deducted from the recovery; and whether such expenses
    are to be deducted before or after the contingent fee
    is calculated. The agreement must clearly notify the
    client of any expenses for which the client will be
    liable whether or not the client is the prevailing
    party. Upon conclusion of a contingent fee matter, the
    lawyer shall provide the client with a written
    statement stating the outcome of the matter and if
    there is a recovery, showing the remittance to the
    client and the method of its determination.
    2
       SCR 20:1.4(a)(3) and (4) provide, respectively, that a
lawyer shall "keep the client reasonably informed about the
status of the matter" and "promptly comply with reasonable
requests by the client for information."
    3
       The OLR's complaint and the referee's report both quote
only subsection (b)(1) of this rule in regards to this count of
misconduct. For our purposes here, we follow suit and therefore
consider this count (Count Three) to be in violation of
SCR 20:1.15(b)(1), which 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.


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                                                  No.   2013AP1791-D


         [Count Four] By failing to hold in trust the
    $400 advanced to him by his client for payment of
    anticipated    costs,  [Attorney]   Wood  violated
    SCR 20:1.15(b)(4).4

         [Count Five] By    withdrawing  funds    from his
    client trust account via teller cash transactions,
    [Attorney] Wood violated SCR 20:1.15(e)(4)a.5

         [Count Six] By failing to maintain and preserve
    complete records of funds he held in trust, including
    a transaction register and individual client ledgers,
    [Attorney] Wood violated SCR 20:1.15(e)(6).6

         [Count Seven] By failing to respond to the
    [S.H.] grievance within 20 days of receiving notice
    that his formal written response was required,
    [Attorney] Wood violated SCR 22.03(2),7 enforceable via

    4
        SCR 20:1.15(b)(4) provides:

         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.
    5
       SCR 20:1.15(e)(4)a. provides that "[n]o disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"
    6
       SCR 20:1.15(e)(6) provides that "[a] lawyer shall maintain
complete records of trust account funds and other trust property
and shall preserve those records for at least 6 years after the
date of termination of the representation."
    7
        SCR 22.03(2) provides:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.    The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.      The director may
                                                    (continued)
                                 8
                                                                  No.    2013AP1791-D


      SCR 20:8.4(h).8 In addition, by delaying his response
      to OLR's request for additional information until
      compelled by an order to show cause issued by the
      Supreme Court, [Attorney] Wood violated SCR 22.03(6),9
      enforceable via SCR 20:8.4(h).
      ¶21    The   referee    then   considered     appropriate         discipline,

identifying the factors considered in determining discipline for

professional misconduct, citing In re Disciplinary Proceedings

Against       Carroll,         2001 WI 130,        ¶40,       248 Wis. 2d 662,

636 N.W.2d 718, as well as the ABA standards for discipline.

The referee noted that Attorney Wood had recently received a
six-month suspension for 28 counts of misconduct involving lack

of diligence, lack of communication with clients, failure to

hold client funds in trust, and failure to cooperate with the

OLR's investigation.          The referee observed that Attorney Wood's

misconduct in the instant matter again involves failure to keep

a   client   informed    of    the   status   of   his    case,    trust    account


      allow additional time to respond.     Following receipt
      of the response, the director may conduct further
      investigation and may compel the respondent to answer
      questions,   furnish   documents,   and   present   any
      information deemed relevant to the investigation.
      8
       SCR 20:8.4(h) provides that 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(2), SCR 22.03(6),
or SCR 22.04(1)."
      9
       SCR 22.03(6) provides that "[i]n the course of the
investigation, the respondent's wilful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."


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violations, and failure to cooperate in an OLR investigation, in

addition to a failure to have a written fee agreement with a

client.    The referee stated:

         I am troubled by the fact that Attorney Wood is
    again involved in an attorney disciplinary proceeding
    wherein there is lack of communication with a client,
    failure to hold funds in trust and failure to
    cooperate with an OLR investigation.       This is an
    unacceptable pattern of misconduct by Attorney Wood.
    ¶22     The referee noted that the misconduct in this case

occurred     after     the      misconduct         in   Attorney       Wood's         prior

disciplinary      proceeding,         but   acknowledged       that         much    of   it

occurred while that prior disciplinary proceeding was pending.

The referee was also troubled                 by    Attorney Wood's failure              to

cooperate    in    the    OLR    investigations         in     both     the        previous

disciplinary matter and this case.

    ¶23     On balance, the referee accepted the parties' joint

recommendation and recommended that Attorney Wood's law license

be suspended for a period of 90 days commencing the date of this

order.     He further recommended that Attorney Wood be responsible

for all the costs of this disciplinary proceeding, which total

$2,191.38 as of June 30, 2014.                   No restitution is requested by

the OLR and none is recommended.

    ¶24     No appeal was filed, so we review this matter pursuant

to SCR 22.17(2).         We will affirm the referee's findings of fact

unless they are clearly erroneous.                 We review conclusions of law

de novo.     See In re Disciplinary Proceedings Against Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                        We may impose
whatever    sanction      we    see    fit,       regardless    of     the     referee's

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                                                                   No.    2013AP1791-D



recommendation.           See    In    re    Disciplinary    Proceedings      Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶25    Here, we agree with the referee that the allegations

in the OLR's complaint have been established and that Attorney

Wood engaged in the seven counts of misconduct alleged in the

complaint, as stipulated by the parties.                    We further agree that

a   90-day    suspension        is    an    appropriate    sanction   for    Attorney

Wood's misconduct and we agree that he should pay the full costs

of the proceeding.

      ¶26    IT IS ORDERED that the license of Everett E. Wood to

practice law in Wisconsin is suspended for a period of 90 days,

effective the date of this order.

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

of this order, Everett E. Wood shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

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

already      done   so,    Everett          E.    Wood   shall   comply     with   the

provisions of SCR 22.26 concerning the duties of any attorney
whose license to practice law has been suspended.




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