                                                              2015 WI 61

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2014AP2918-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against David J. Bartz , Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        David J. Bartz,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST BARTZ

OPINION FILED:          June 25, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2015 WI 61
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.     2014AP2918-D


STATE OF WISCONSIN                              :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David J. Bartz , Attorney at Law:

Office of Lawyer Regulation,                                           FILED
             Complainant,
                                                                  JUN 25, 2015
       v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
David J. Bartz,

             Respondent.




       ATTORNEY      disciplinary       proceeding.         Attorney's         license
suspended.


       ¶1    PER CURIAM.        We review a stipulation filed pursuant
to    Supreme   Court    Rule   (SCR)   22.12   by     the    Office      of    Lawyer
Regulation      (OLR)    and    Attorney     David     J.     Bartz.           In   the
stipulation, Attorney Bartz agrees that he committed five counts
of    professional      misconduct.     He    also     agrees      that    a    60-day
suspension of his license to practice law in Wisconsin is an
appropriate sanction, and he agrees to pay restitution to one
client and to the Wisconsin Lawyers' Fund for Client Protection
                                                                          No.        2014AP2918-D



(Fund).     The OLR is not seeking an assessment of costs against
Attorney Bartz.
       ¶2   After careful review of the matter, we approve the
stipulation.        We    agree    that       a    60-day    suspension         of     Attorney
Bartz's license to practice law in Wisconsin is an appropriate
level of discipline.          We also agree that Attorney Bartz should
be ordered to pay restitution.                      Because this matter is being
resolved without the appointment of a referee, we do not impose
any costs on Attorney Bartz.
       ¶3   Attorney       Bartz        was       admitted     to       practice        law   in
Wisconsin    in    1989.      He    practiced         in     Madison.           In    1999,    he
received a consensual private reprimand for misconduct involving

his    failure     to    employ     the       requisite      preparation             reasonably
necessary for competent representation of a client.                                     Private
Reprimand No. 1999-19.
       ¶4   In 2011, Attorney Bartz's Wisconsin law license was
suspended for his failure to pay State Bar dues and failure to
file    trust      account        certification.                   In    2012,         he     was
administratively suspended for failure to comply with continuing
legal education requirements.                     On October 16, 2012, this court
temporarily suspended his Wisconsin law license for his willful
failure to cooperate in two OLR investigations.                                  His license
remains suspended.
       ¶5   On     December       18,     2014,      the     OLR    filed       a     complaint

alleging    that    Attorney       Bartz       had    engaged       in    five       counts    of
misconduct with respect to his representation of P.M.                                  In 2008,
P.M. was injured in a car accident.                        He was treated by Walnut
                                               2
                                                                              No.     2014AP2918-D



Grove Chiropractic (Walnut Grove).                          In November of 2009, P.M.
hired Attorney Bartz to represent him in a personal injury claim
concerning           the   car    accident.           P.M.       signed       a     written     fee
agreement.           Under the terms of the agreement, Attorney Bartz
would collect a 15% contingent fee if the case settled before
trial.        The agreement provided that P.M. would be responsible
for costs.
        ¶6      In April of 2010, Attorney Bartz settled P.M.'s claim
for $5,021.            The settlement statement provided that Attorney
Bartz's fee would be $753.15, that P.M. would receive $996.85,
and   that      Walnut     Grove's       balance      was       $3,271.       The     settlement
statement       required         Attorney    Bartz         to   hold    the       funds   due    to

Walnut Grove in his trust account while he tried to negotiate a
lower payout to Walnut Grove.
        ¶7      On April 7, 2010, Attorney Bartz deposited the $5,021
settlement check into his trust account.                                On April 9, 2010,
Attorney Bartz paid P.M. $996.85 and paid himself $755.                                          On
April    14,     2010,      Walnut       Grove    agreed        to   accept       $2,191.80      to
settle their bill.           Attorney Bartz never paid Walnut Grove.
        ¶8      Between     April    15     and      May    14,      2010,    Attorney        Bartz
disbursed six trust account checks payable to himself, leaving
no funds in trust attributable to either Walnut Grove or P.M.
In late October of 2011, Attorney Bartz told P.M. that he would
pay Walnut Grove's bill.

        ¶9      On    October      31,    2011,       Attorney         Bartz's       license    to
practice law was suspended for failure to pay his annual bar
dues.        Attorney Bartz never informed P.M. of his suspension.
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                                                                  No.    2014AP2918-D



        ¶10    In 2012, P.M. filed a grievance against Attorney Bartz
with the OLR.         The OLR sent Attorney Bartz two letters notifying
him that he was required to respond to the grievance.                         Attorney
Bartz       never   responded.    As    a   result,     this   court    temporarily
suspended       Attorney   Bartz's     Wisconsin      law   license     due    to   his
failure to cooperate with the OLR.
        ¶11    In September of 2012, the Fund paid P.M. $2,191.80 as
partial       reimbursement      for    the     funds       Attorney    Bartz       had
misappropriated.1
        ¶12    The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Bartz's representation of
P.M.:

             [Count One]   By failing to promptly disburse to
        Walnut Grove funds it was entitled to receive, Bartz
        violated SCR 20:1.15(d)(1).2

             [Count Two]   By failing to continue to hold in
        trust $3,271 of settlement proceeds belonging to
        others, Bartz violated SCR 20:1.15(b)(1).3


        1
       The amount paid by the Fund represents the amount Walnut
Grove had agreed to accept to settle its account with P.M.
        2
            SCR 20:1.15(d)(1) provides:

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



                                            4
                                                 No.   2014AP2918-D


         [Count Three]   By misappropriating funds held in
    trust, Bartz violated SCR 20:8.4(c).4

         [Count Four]    By failing to inform [P.M.] that
    his Wisconsin law license had been suspended, Bartz
    violated SCR 22.26,5 enforceable via SCR 20:8.4(f).6

         [Count Five]      By failing to respond to OLR's
    written   requests    for  information  regarding its



    3
        SCR 20:1.15(b)(1) provides:

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

         (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.

           . . . .
    6
       SCR 20:8.4(f) provides that 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."



                                 5
                                                                     No.    2014AP2918-D


        investigation of the [P.M.] grievance, Bartz violated
        SCR 22.03(2) and (6),7 enforceable via SCR 20:8.4(h).8
        ¶13    On   March    3,    2015,    the    parties   filed    a    stipulation

whereby Attorney Bartz admitted the five counts of misconduct
alleged in the OLR's complaint.                    In the stipulation, Attorney
Bartz       represents      that    he     fully    understands      the    misconduct
allegations,        the     ramifications         should   the   court     impose   the
stipulated level of discipline, his right to contest the matter,


        7
            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.
        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.
        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)."



                                             6
                                                                               No.     2014AP2918-D



and his right to consult with counsel.                             He further avers that
his entry into the stipulation is made knowingly and voluntarily
and     represents          his       decision     not     to    contest       the     misconduct
alleged       in    the     complaint,          the    level    and     type    of     discipline
sought by the OLR's director, or the restitution sought.
        ¶14     Having      carefully         considered        this    matter,      we     approve
the     stipulation          and        adopt    the     stipulated          facts    and    legal
conclusions of professional misconduct.                            We agree that a 60-day
suspension          of     Attorney       Bartz's        license       to    practice       law   in
Wisconsin is an appropriate level of discipline.                                     Although no
two disciplinary matters are identical, a 60-day suspension is
consistent          with    sanctions         imposed     in    somewhat       similar       cases.

See,        e.g.,    In     re    Disciplinary           Proceedings         Against      Barrock,
2007 WI 24, 299 Wis. 2d 207, 727 N.W.2d 833 (60-day suspension
imposed for six counts of misconduct arising out of attorney's
failure to hold settlement funds subject to third-party claim in
trust        account);           In      re     Disciplinary           Proceedings          Against
Riegleman, 2003 WI 3, 259 Wis. 2d 1, 657 N.W.2d 339 (60-day
suspension imposed for three counts of misconduct arising out of
attorney's          failure        to     notify       lienholder       of     settlement         and
unauthorized endorsement of settlement check).
        ¶15     We also agree that Attorney Bartz should pay $1,081.059
in restitution to P.M. and $2,191.8010 in restitution to the
        9
       The OLR notes that the amount payable to P.M. includes the
funds which should have been distributable to P.M. after
Attorney Bartz settled the Walnut Grove claim ($1,079.20) and
the fees Attorney Bartz took in excess of the settlement
statement ($1.85).


                                                   7
                                                                 No.    2014AP2918-D



Fund.         Because    Attorney   Bartz     entered    into   a   comprehensive
stipulation, thereby obviating the need for the appointment of a
referee and a full disciplinary proceeding, we do not impose
costs in this matter.
        ¶16    IT IS ORDERED that the license of David J. Bartz to
practice law in Wisconsin is suspended for a period of 60 days,
effective the date of this order.
        ¶17    IT IS FURTHER ORDERED that within 60 days of the date
of this order, David J. Bartz shall pay restitution as follows:
$1,081.05 to P.M. and $2,191.80 to the Wisconsin Lawyers' Fund
for Client Protection.
        ¶18    IT   IS   FURTHER    ORDERED    that     the   October    16,   2012

temporary suspension of David J. Bartz'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.11



        10
       Although both the OLR's complaint and the stipulation
state that Attorney Bartz should be ordered to pay $2,191.30 in
restitution to the Fund, the complaint states that Walnut Grove
agreed to accept $2,191.80 to settle its bill and that the Fund
paid P.M. $2,191.80.    As a result, it appears the $2,191.30
figure is a typographical error and Attorney Bartz should be
ordered to pay $2,191.80 in restitution to the Fund.
        11
       On   March  4,   2015,  the  OLR  filed   a   report and
recommendation stating that Attorney Bartz's law license should
be reinstated from the October 16, 2012 temporary suspension.
The suspension arose out of Attorney Bartz's failure to
cooperate in two grievance investigations.        One of those
investigations resulted in the complaint that was filed in this
case.   The OLR states that its investigation into the second
grievance is ongoing.



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                                                 No.   2014AP2918-D



     ¶19   IT IS FURTHER ORDERED that, to the extent he has not
already done so, David J. Bartz 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.




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    No.   2014AP2918-D




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