                                                             2020 WI 48


                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2018AP2417-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Stanley Whitmore Davis, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                          v.
                       Stanley Whitmore Davis,
                                 Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST DAVIS

OPINION FILED:         June 12, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam
NOT PARTICIPATING:



ATTORNEYS:
                                                                          2020 WI 48




                                                                  NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.   2018AP2417-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Stanley Whitmore Davis,
Attorney at Law:

Office of Lawyer Regulation,                                         FILED
           Complainant,                                           JUN 12, 2020
                                                                   Sheila T. Reiff
      v.                                                        Clerk of Supreme Court


Stanley Whitmore Davis,

           Respondent.




      ATTORNEY     disciplinary        proceeding.       Attorney's          license

suspended.


      ¶1   PER    CURIAM.     We   review    Referee       John      B.     Murphy's

recommendation that Attorney Stanley Whitmore Davis be declared

in    default    and   his   license    to   practice       law     in     Wisconsin

suspended for one year for professional misconduct.                      The referee

also recommended that Attorney Davis pay $2,500 in restitution

to G.P. and $3,750 to the Wisconsin Lawyers' Fund for Client

Protection ("the Fund"), and that he pay the full costs of the
proceeding, which are $2,601.62 as of January 15, 2020.
                                                                     No.   2018AP2417-D



       ¶2      We declare Attorney Davis to be in default.                   We agree

with the referee that the record establishes that Attorney Davis

has committed 36 counts of professional misconduct, warranting a

one-year suspension of his license to practice law in Wisconsin.

We also agree that Attorney Davis should pay restitution to G.P.

and to the Fund and we direct him to pay the full costs of this

proceeding.1

       ¶3      Attorney      Davis   was    admitted        to    practice    law   in

Wisconsin       in   1998.     He    practiced       in   the    Madison   area.     On

August 15, 2018, we temporarily suspended Attorney Davis' law

license for non-cooperation with an Office of Lawyer Regulation

(OLR) investigation.2           On November 2, 2018, his law license was

also       administratively     suspended      for    non-payment     of   state    bar


       Attorney Davis is the subject of another pending
       1

disciplinary matter, presently before a referee.           In re
Disciplinary Proceedings Against Stanley Whitmore Davis, Case
No. 2019AP2405-D.   After the court finalized this decision but
before our opinion was released, Attorney Davis filed a Petition
for Revocation by Consent in this court.    He sought to resolve
this disciplinary proceeding together with his other pending
disciplinary matters. Because the issuance of this decision was
imminent, we dismissed the Petition for Revocation by Consent by
separate order of this court.     The other pending disciplinary
matters involving Attorney Davis will proceed in due course.

       On January 8, 2018, this court temporarily suspended
       2

Attorney Davis' Wisconsin law license for failure to cooperate
with the OLR.   OLR v. Davis, No. 2017XX1617, unpublished order
(S. Ct. Jan. 8, 2018). That suspension was lifted on March 2,
2018, after the OLR received Attorney Davis' response to a
pending grievance. Thereafter, Attorney Davis failed to respond
to the OLR's request for additional information. On August 15,
2018, the court again temporarily suspended Attorney Davis'
license to practice law for his noncooperation.    OLR v. Davis,
No. 2018XX768, unpublished order (S. Ct. Aug. 15, 2018).

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                                                                     No.     2018AP2417-D



dues and failure to submit a trust account certification.                                On

June 5, 2019, he was administratively suspended for failure to

complete mandatory continuing education requirements.                             His law

license remains suspended.

      ¶4    On     December     20,    2018,    the    OLR      filed      its    initial

disciplinary       complaint     against       Attorney      Davis,        alleging      20

counts of professional misconduct.               The complaint was personally

served upon Attorney Davis on January 14, 2019.                         Attorney Davis

did   not   file      an   answer.      Referee       Murphy      was    appointed       on

February 1, 2019 and on February 9, 2019, the referee ordered

the   parties    to    appear   by    telephone       for   a     February       26,   2019

scheduling      conference.          Attorney    Davis      was    also     ordered      to

provide a contact telephone number, in advance.                         Attorney Davis

failed to provide a telephone number and failed to appear at the

scheduling conference.          The OLR requested and received leave to

file an amended complaint and another scheduling conference was

set for May 14, 2019.

      ¶5    On March 19, 2019, the OLR filed an amended complaint
alleging 26 counts of misconduct.                  Attorney Davis failed to

answer, failed to provide a telephone number, and did not appear

at the follow-up scheduling conference.

      ¶6    On August 6, 2019, the OLR filed a second amended

complaint alleging 36 counts of misconduct.                       Attorney Davis did

not answer.        On September 19, 2019, the OLR filed a notice of

motion and motion for summary judgment.                     Again, Attorney Davis

did not respond.


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                                                                    No.      2018AP2417-D



     ¶7     On October 15, 2019, the referee, citing Wis. Stat.

§ 801.11(1), directed the OLR to personally serve Attorney Davis

with the first and second amended complaints.3                       An adult woman

with the surname Davis accepted service of the complaints on

October 24, 2019.          Additional personal service was attempted on

October 25, 2019.           The complaints were accepted by a person

believed    to    be     Attorney    Davis'      father.          The     two   amended

complaints were also mailed to all three addresses associated

with Attorney Davis.          The referee found that it "is undeniably

clear that Davis has no interest in objecting to any of the

allegations made against him by the OLR though he has been given

many opportunities to do so."

     ¶8     On December 27, 2019, the referee issued his report,

recommending the court grant the OLR's motion and deem Attorney

Davis in default.          The referee found that based on the facts

alleged    in    the    second   amended       complaint    and     Attorney     Davis'

failure to answer the second amended complaint, or otherwise

respond or appear in this matter, the OLR has met its burden of
proof    with    respect    to     proving     all    36   counts       of   misconduct

alleged    in     the     second     amended         complaint.           The   referee

recommended      that    Attorney    Davis'      license    to    practice      law   in

Wisconsin be suspended for one year, that he be ordered to pay

restitution to one client, G.P., and to the Fund, and assessed

the costs of this proceeding.



     3   The OLR had served the two amended complaints by mail.

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                                                                            No.     2018AP2417-D



      ¶9     Attorney         Davis       did        not      appeal        the      referee's

recommendation         so     we        consider       this      matter          pursuant      to

SCR 22.17(2).4      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.

      ¶10    We   agree       that      reasonable         diligence        was     exercised,

attempting to serve Attorney Davis by personal service in the

manner set forth in Wis. Stat. § 801.11(1) and by service under

SCR 22.13(1), which provides that if, with reasonable diligence,

the       respondent         cannot        be        served      under            Wis.      Stat.

§ 801.11(1)(a) or           (b),     "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."
      ¶11    As   the   second          amended      complaint     reflects,             Attorney

Davis'     misconduct        was     serious.          It     involves       36     counts     of


      4   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.

                                                5
                                                                   No.     2018AP2417-D



misconduct         and   eight    client     matters.       Attorney   Davis    missed

deadlines, failed to pursue client claims, lied to clients about

the    status      of    cases,    failed     to   return   retainers,      failed   to

advise clients when his law license was suspended, then failed

to respond to grievances or otherwise cooperate with the OLR.

The referee described him as "absolutely uncooperative."                        As an

example, one client lost her right to pursue a Title VII claim

because       of   Attorney       Davis'    failure    to   act.      We   accept    the

referee's conclusions, based on the second amended complaint,

that Attorney Davis violated SCRs 20:1.15 (Competence, Count 27);

20:1.36 (Diligence, Counts 1, 5, 10, 13, and 21); 20:1.4(a)(3)7

(Communication,          Count     2);     20:1.4(a)(2)8    (Communication,      Count

22);       20:1.5(b)(1)9     (Fees,      Count     14); 20:1.5(c)10    (Fees,    Count

       SCR 20:1.1 provides:
       5                      "A lawyer shall provide competent
representation to a client.    Competent representation required
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."

       SCR 20:1.3 provides: "A lawyer shall act with reasonable
       6

diligence and promptness in representing a client."

       SCR 20:1.4(a)(3) provides: "A lawyer shall keep the client
       7

reasonably informed about the status of the matter."

       SCR 20:1.4(a)(2) provides:
       8                            "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
       9   SCR 20:1.5(b)(1) provides:

            The scope of the representation and the basis or
       rate of the fee and expenses for which the client will
       be responsible shall be communicated to the client in
       writing, before or within a reasonable time after
       commencing the representation, except when the lawyer
       will charge a regularly represented client on the same
       basis or rate as in the past.     If it is reasonably
                                              6
                                                 No.   2018AP2417-D



15); 20:1.16(d)11 (Terminating Representation, Counts 3, 11, and

29); 20:3.4(c)12 (Fairness to Opposing Counsel and the Tribunal,



    foreseeable that the total cost of representation to
    the client, including attorney's fees, will be $1000
    or less, the communication may be oral or in writing.
    10   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, 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.
    11   SCR 20:1.16(d) provides:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    to protect a client's interests, such as giving
    reasonable notice to the client,   allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is         entitled and
    refunding any advance payment of fee or expense that
    has not been earned or incurred.
    12 SCR 20:3.4(c) provides:   "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."

                                    7
                                                           No.     2018AP2417-D



Count 31); and 20:8.4(c)13 (Misconduct, Count 28).               In addition,

by   continuing    to   represent   clients    and   provide    legal   advice

while his law license was suspended, Attorney Davis violated

SCR 10.03(6),14    SCR 22.26(2),15    and     SCR 31.10(1),16     enforceable

       SCR 20:8.4(c) provides:
      13                        "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
      14   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.
      15   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.
      16   SCR 31.10(1) provides:

           If a lawyer fails to comply with the attendance
      requirement of SCR 31.02, fails to comply with the
      reporting requirement of SCR 31.03(1), or fails to pay
      the late fee under SCR 31.03(2), the board shall serve
      a notice of noncompliance on the lawyer. This notice
      shall advise the lawyer that the lawyer's state bar
      membership  shall   be  automatically   suspended  for
      failing to file evidence of compliance or to pay the
      late fee within 60 days after service of the notice.
      The board shall certify the names of all lawyers so
      suspended under this rule to the clerk of the supreme
      court, all supreme court justices, all court of
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                                                               No.   2018AP2417-D



via SCR 20:8.4(f)17 (Counts 9, 17, 24, 26, 33 and 35); and, by

failing to notify clients and/or the court and opposing counsel

of   his    license   suspension   he       violated   SCR   22.26(1)(a)-(c),18

      appeals and circuit court judges, all circuit court
      commissioners appointed under SCR 75.02(1) in this
      state, all circuit court clerks, all juvenile court
      clerks, all registers in probate, the executive
      director of the state bar of Wisconsin, the Wisconsin
      State Public Defender's Office, and the clerks of the
      federal district courts in Wisconsin.  A lawyer shall
      not engage in the practice of law in Wisconsin while
      his or her state bar membership is suspended under
      this rule.

       SCR 20:8.4(f) provides:
      17                         "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."
      18   SCR 22.26(1)(a)-(c) 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.

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                                                          No.   2018AP2417-D



enforceable via SCR 20:8.4(f) (Counts 6, 8, 16, 19, 23, and 32).

Finally, by failing to cooperate with the OLR Attorney Davis

violated    SCR 22.03(2)19   and/or   SCR   22.03(6),20   enforceable   via

SCR 20:8.4(h)21 (Counts 4, 7, 12, 18, 20, 25, 30, 34, and 36).

     ¶12    We next consider the appropriate sanction.           The first

complaint     filed   against   Attorney      Davis   sought    a   90-day

suspension.     The first amended complaint reflected additional

misconduct and requested a nine-month suspension.               The second

amended complaint added six more counts of misconduct and sought

a one-year suspension.       The OLR bases this recommendation on In

     19   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
     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.
     20SCR   22.03(6)  provides:     "In   the  course  of   the
investigation, the respondent's willful 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."
     21SCR 20:8.4(h) provides:   "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)."

                                      10
                                                                           No.     2018AP2417-D



re    Disciplinary      Proceedings           Against      Chavez,    2015       WI   39,    361

Wis. 2d 636, 862 N.W.2d 142.                  Attorney Chavez's law license was

suspended for one year for continuing to accept legal work after

knowing he faced a license suspension, failing to inform clients

of    his     suspension,         abandoning             clients,    then        failing     to

participate in or cooperate with the disciplinary proceeding.

The OLR states that it considers Attorney Davis' misconduct less

serious      than    that    in   In    re     Disciplinary         Proceedings        Against

Tully, 2005 WI 100, 283 Wis. 2d 124, 699 N.W.2d 882, where the

attorney, who had no prior discipline, was suspended for two

years for 29 counts of misconduct, including failure to act on

her    clients'       behalf,      failure          to    respond     to     her      clients,

practicing while her license was suspended, lying to the Board

of Bar Examiners in her reinstatement petition, and failing to

cooperate      in    the     disciplinary           investigation.           Certainly,        a

lengthy suspension is appropriate.                        As Attorney Davis has been

suspended since August 15, 2018, we will accept the referee's

recommendation,        and     impose     a    one-year       suspension         on   Attorney
Davis' law license.

       ¶13    We    further       agree       that       Attorney    Davis       shall      make

restitution in the amount of $2,500 to G.P. and $3,750 to the

Wisconsin Lawyers' Fund for Client Protection.                               We note with

some concern that the OLR's restitution statement states there

was   "no    reasonably       ascertainable          amount     of    restitution"          with

respect      to     Attorney      Davis'       representation         of     C.B.     on    the

employment matter, or his representation of T.F., O.O., R.P.,
and T.M.          We recognize that Attorney Davis' utter refusal to
                                               11
                                                                  No.    2018AP2417-D



cooperate     with     the      OLR   may     account       for   this    troubling

conclusion.        We emphasize that if Attorney Davis ever seeks

reinstatement, he will be required to satisfy to this court that

he has addressed the question of restitution.                     See, e.g., SCR

22.29(4)(c) and (4m).           Finally, we agree with the referee that

Attorney Davis should bear the full costs of this proceeding.

    ¶14     IT IS ORDERED that the license of Stanley Whitmore

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

one year, effective the date of this order.

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

of this order, Stanley Whitmore Davis shall pay restitution to

G.P. in the amount of $2,500 and to the Wisconsin Lawyers' Fund

for Client Protection in the amount of $3,750.

    ¶16     IT IS FURTHER ORDERED that restitution to client G.P.

is to be completed prior to paying restitution to the Wisconsin

Lawyers'    Fund    for   Client      Protection,     and    restitution      to   the

Wisconsin Lawyers' Fund for Client Protection is, in turn, to be

completed     before      paying      costs    to     the     Office     of   Lawyer
Regulation.

    ¶17     IS FURTHER ORDERED that within 60 days of the date of

this order, Stanley Whitmore Davis shall pay to the Office of

Lawyer   Regulation       the    costs   of    this     proceeding,      which     are

$2,601.62, as of January 15, 2020.

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

already done so, Stanley Whitmore Davis shall comply with the

provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
                                         12
                                                                            No.   2018AP2417-D



    ¶19     IT IS FURTHER ORDERED that the temporary suspension of

Stanley   Whitmore       Davis'    license       to    practice         law,      entered   on

August 15, 2018, is hereby lifted.

    ¶20     IT   IS       FURTHER    ORDERED           that     the          administrative

suspensions of Stanley Whitmore Davis 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).

    ¶21     IT   IS      FURTHER     ORDERED          that     as       a    condition      of

reinstatement      of    his    license     to    practice          law      in   Wisconsin,

Stanley Whitmore Davis will be required to demonstrate he has

made full restitution to or settled all claims of all persons

harmed by the misconduct that is the subject of this proceeding,

as set forth in the second amended complaint.




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    No.   2018AP2417-D




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