                                                               2016 WI 8

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1984-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Patrick A. Callahan, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Patrick A. Callahan,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST CALLAHAN

OPINION FILED:          February 10, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                              2016 WI 8
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.        2015AP1984-D


STATE OF WISCONSIN                                :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Patrick A. Callahan, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
               Complainant,
                                                                    FEB 10, 2016
       v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Patrick A. Callahan,

               Respondent.




       ATTORNEY      disciplinary        proceeding.        Attorney's           license

suspended.



       ¶1      PER CURIAM.       We review a stipulation filed pursuant

to    Supreme    Court    Rule   (SCR)   22.121       by   the   Office     of    Lawyer


       1
           SCR 22.12 (Stipulation) provides:

             (1) The director may file with the complaint a
       stipulation of the director and the respondent to the
       facts, conclusions of law regarding misconduct, and
       discipline to be imposed. The supreme court may
       consider the complaint and stipulation without the
       appointment of a referee, in which case the supreme
       court    may  approve  the  stipulation,  reject   the
                                                       (continued)
                                                                      No.     2015AP1984-D



Regulation     (OLR)     and    Attorney         Patrick   A.   Callahan.        In   the

stipulation, Attorney Callahan admits the misconduct alleged by

the OLR and agrees to a 60-day suspension of his Wisconsin law

license.

      ¶2      We adopt the stipulated facts and conclusions of law.

We    agree    that     Attorney       Callahan's      misconduct       warrants      the

suspension of his Wisconsin law license for a period of 60 days.

The   OLR     advises    that    this     court      should     not    impose     either

restitution      or    the     costs    of   this     proceeding       upon     Attorney

Callahan, and we accept that recommendation.


      stipulation, or direct the parties to                             consider
      specific modifications to the stipulation.

           (2) If the supreme court approves a stipulation,
      it shall adopt the stipulated facts and conclusions of
      law and impose the stipulated discipline.

           (3) If the supreme court rejects a stipulation, a
      referee shall be appointed and the matter shall
      proceed as a complaint filed without a stipulation.

           (3m) If the supreme court directs the parties to
      consider specific modifications to the stipulation,
      the parties may, within 20 days of the date of the
      order, file a revised stipulation, in which case the
      supreme court may approve the revised stipulation,
      adopt the stipulated facts and conclusions of law, and
      impose the stipulated discipline. If the parties do
      not file a revised stipulation within 20 days of the
      date of the order, a referee shall be appointed and
      the matter shall proceed as a complaint filed without
      a stipulation.

           (4) A stipulation rejected by the supreme court
      has no evidentiary value and is without prejudice to
      the respondent's defense of the proceeding or the
      prosecution of the complaint.


                                             2
                                                                          No.       2015AP1984-D



       ¶3      Attorney Callahan was admitted to the practice of law

in Wisconsin in 1998.               Although Attorney Callahan has not been

the subject of prior disciplinary proceedings, his law license

is currently suspended due to his failure to pay mandatory bar

dues, failure to file a trust account certification, and failure

to    comply    with    continuing      legal        education      requirements.             In

addition,      Attorney      Callahan's        law    license      has       been    suspended

since    November      26,    2013,     for        noncooperation        with       the     OLR's

investigation         into    the     matter       that    is    the     subject       of    the

complaint and stipulation now before this court.

       ¶4      The complaint and stipulation concern five misconduct

counts and involve one client, C.R.                       According to the complaint

and the stipulation, C.R. met with Attorney Callahan in April

2011 to discuss her recent and allegedly wrongful termination

from her job.          In July 2012, Attorney Callahan filed on C.R.'s

behalf a discrimination complaint against C.R.'s former employer

with the Equal Rights Division (ERD) of the Wisconsin Department

of Workforce Development (DWD).                     This discrimination complaint
was     time-barred,         however,     because         the     statutorily          imposed

deadline to file the complaint expired several months earlier,

in    February       2012.      The    DWD-ERD       dismissed         the    complaint       as

untimely filed.

       ¶5      Attorney      Callahan    appealed          the    dismissal.           Shortly

thereafter, Attorney Callahan made an offer to C.R.'s former

employer to settle C.R.'s case for $10,000——even though he had

no authority from C.R. to settle the case on those terms.                                    The
attorney       for     C.R.'s       former     employer          accepted       the       offer.
                                               3
                                                                     No.    2015AP1984-D



Attorney Callahan then represented to the ERD administrative law

judge that the parties had settled the case and that settlement

paperwork would be forthcoming.                 After 19 months passed, the ERD

administrative law judge affirmed the decision to dismiss C.R.'s

discrimination complaint as untimely filed.                     The administrative

law judge noted that, although C.R. appeared blameless for the

untimely filing, Attorney Callahan had presented no valid excuse

for the delay.

    ¶6      In July 2012, on the same day that Attorney Callahan

filed    the     untimely      discrimination        complaint       against      C.R.'s

former employer with the DWD-ERD, Attorney Callahan also filed a

civil suit against C.R.'s former employer.                      In February 2013,

about six weeks before the discovery cutoff date set by the

circuit court, Attorney Callahan sent a letter to the circuit

court in which he admitted that he had:                   (1) failed to perform

necessary discovery activities to prepare the case adequately;

(2) failed to communicate with C.R. about the status of her

claim;   (3) failed       to    inform      C.R.    of   the    scheduling        of   her
deposition; (4) advised opposing counsel that C.R. would accept

$10,000 to settle the case even though he did not have C.R.'s

authority      to   do   so;    and   (5)       failed   to    timely      file   C.R.'s

discrimination complaint with the DWD-ERD and to report this

fact to C.R.          Attorney Callahan also mailed a copy of this

letter to the OLR.

    ¶7      At      Attorney    Callahan's         request,    the    circuit      court

permitted Attorney Callahan to withdraw from the representation


                                            4
                                                                     No.     2015AP1984-D



of C.R.         The circuit court then dismissed C.R.'s case without

prejudice.

       ¶8       In   April    and     May   2013,    the    OLR    sent     letters    to

Attorney         Callahan       seeking      information          related      to     his

representation of C.R.                Attorney Callahan did not respond to

these letters, which ultimately led to this court's November 26,

2013       order     temporarily      suspending      Attorney      Callahan's         law

license for failing to cooperate with the OLR's investigation.

       ¶9       In September 2015, the OLR filed a complaint against

Attorney Callahan which alleged the following five counts of

misconduct:

               Count 1:      By failing to perform the necessary work to

                advance      C.R.'s    circuit      court   suit     against        C.R.'s

                former employer, and by failing to properly advance

                C.R.'s DWD-ERD discrimination claim, Attorney Callahan

                violated SCR 20:1.3.2

               Count 2:       By advancing a settlement offer in C.R.'s

                case that C.R. had not authorized, Attorney Callahan
                violated SCR 20:1.2(a).3


       2
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
       3
           SCR 20:1.2(a) provides, in pertinent part, that:

       [A] lawyer shall abide by a client's decisions
       concerning the objectives of representation and, as
       required by SCR 20:1.4, shall consult with the client
       as to the means by which they are to be pursued. A
       lawyer may take such action on behalf of the client as
       is   impliedly    authorized   to   carry    out    the
                                                        (continued)
                                             5
                                                               No.    2015AP1984-D



           Count 3:        By representing to opposing counsel that

            C.R. would settle her claims for $10,000 when he knew

            that he had no authority from C.R. to do so, Attorney

            Callahan violated SCR 20:8.4(c).4

           Count 4:        By failing to keep C.R. apprised of the

            status of her discrimination claim with the DWD-ERD,

            and by failing to keep C.R. apprised of the status of

            her   circuit    court     case,   Attorney    Callahan     violated

            SCR 20:1.4(a)(3) and (4).5

           Count    5:      By   failing      to   provide    timely    written

            responses to the OLR's investigative letters regarding

            C.R.'s        grievance,        Attorney    Callahan        violated

            SCR 22.03(2) and (6).6

    representation. A lawyer shall abide                  by   a   client's
    decision whether to settle a matter.
    4
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    5
       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."
    6
        SCR 22.03(2) and (6) provide:

         (2)   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 allow additional time to respond.
                                                     (continued)
                                        6
                                                                      No.     2015AP1984-D



    ¶10      In late December 2015, the OLR and Attorney Callahan

executed the stipulation now before the court.                         In addition to

stipulating    to     the     facts   as       set    forth    above,       the   parties

stipulated to discipline in the form of a 60-day suspension of

Attorney Callahan's Wisconsin law license.

    ¶11      The stipulation provides that it is not the result of

a plea bargain.           Attorney Callahan also verifies that he fully

understands    the     misconduct         allegations,        the    ramifications        if

this court should impose the stipulated level of discipline, his

right   to   contest      the    matter,       and    his   right    to   consult       with

counsel.       He     further       verifies         that     his    entry      into     the

stipulation    was     made      knowingly      and    voluntarily,       and     that    it

represents his admission of all misconduct and his assent to the

level and type of discipline sought by the OLR director.

    ¶12      The    OLR    has    filed    a    memorandum      in    support      of    the

stipulation.        The     memorandum         discusses      attorney      disciplinary

cases that resulted in 60- or 90-day suspensions for misconduct


    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.

             . . . .

         (6) In 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.


                                            7
                                                                           No.    2015AP1984-D



that generally involved the failure to perform timely work for a

client, the failure to properly communicate with a client, and

the     failure     to     cooperate        with       an   OLR      investigation         into

misconduct.

       ¶13    The OLR's memorandum states that the case most similar

to the facts at issue here is In re Disciplinary Proceedings

Against Fitzgerald, 2006 WI 58, 290 Wis. 2d 713, 714 N.W.2d 925.

In Fitzgerald, an attorney received a 90-day suspension for,

among other things, failing to respond to an insurance company's

inquiries       concerning       her      client's      case;      falsely       telling    her

client that the insurance company had made a settlement offer

when    the     insurance       company        had    not   done     so;    fabricating      a

release document from the insurance company; and using her own

money as the settlement funds allegedly offered by the insurance

company.         The     OLR     states        that,     like      Attorney      Fitzgerald,

Attorney      Callahan      failed        to     perform     the     necessary      work    to

advance his client's case and then later tried to cover it up by

advancing a ruse that the case had settled.                              However, on the
basis of Attorney Callahan's self-reporting of his misconduct to

the    circuit     court       and   to    the       OLR,   the    OLR   recommends        that

Attorney Callahan receive a 60-day suspension, rather than the

90-day suspension imposed in Fitzgerald.                          The OLR also considers

as a mitigating factor the fact that Attorney Callahan has not

been the subject of prior disciplinary proceedings.

       ¶14    We adopt the stipulation and the stipulated facts and

conclusions of law, and impose the stipulated discipline.                                   We
agree    that     the    seriousness        of       Attorney     Callahan's      misconduct
                                                 8
                                                                      No.     2015AP1984-D



warrants the suspension of his Wisconsin law license for 60

days.    The OLR does not seek restitution, so we impose none.                           In

light of the stipulation, the OLR does not seek costs, so we

also do not impose costs.

       ¶15   IT IS ORDERED that the license of Patrick A. Callahan

to practice law in Wisconsin is suspended for a period of 60

days, effective the date of this order.

       ¶16   IT IS FURTHER ORDERED that Patrick A. Callahan 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.

       ¶17   IT    IS     FURTHER      ORDERED     that       compliance      with     all

conditions of this order is required for reinstatement.                                 See

SCR 22.28(2).

       ¶18   IT    IS    FURTHER      ORDERED    that     the    November      26,     2013

temporary     suspension         of    Patrick     A.     Callahan's         license     to

practice     law    in    Wisconsin,      due     to    his     willful      failure     to

cooperate with the OLR's grievance investigation in this matter,
is lifted.

       ¶19   IT    IS     FURTHER       ORDERED        that     the    administrative

suspension of Patrick A. Callahan's license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues, failure

to file a trust account certification, and failure to comply

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).


                                           9
    No.   2015AP1984-D




1
