                                                            2015 WI 111

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2014AP2487-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against
                       Eric L. Crandall, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Eric L. Crandall,
                                 Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST CRANDALL

OPINION FILED:         December 23, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, A.W. BRADLEY, J.J., dissent.
                       (Opinion filed)
  NOT PARTICIPATING:

ATTORNEYS:
                                                                       2015 WI 111
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2014AP2487-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Eric L. Crandall, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
           Complainant,
                                                                DEC 23, 2015
      v.
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
Eric L. Crandall,

           Respondent.




      ATTORNEY     disciplinary       proceeding.        Attorney          publicly

reprimanded.



      ¶1   PER CURIAM.        We review the report filed by Referee

James G. Curtis, adopting two stipulations between the Office of

Lawyer Regulation (OLR) and Attorney Eric L. Crandall.                            The

referee agreed that Attorney Crandall committed five counts of

misconduct, as alleged in the          OLR's complaint.              The referee

further agreed with the parties that a public reprimand was an

appropriate      level   of    discipline     for       Attorney        Crandall's
misconduct.       Finally,    the   referee   recommended         that     Attorney
                                                                  No.   2014AP2487-D



Crandall should be assessed the full costs of the proceeding,

which are $4,182.17 as of September 17, 2015.

      ¶2   After careful review of the matter, we conclude that

the   referee's     findings        of   fact       are    supported    by    clear,

satisfactory, and convincing evidence.                    We adopt the referee's

conclusions of law.           We agree that the appropriate discipline

for Attorney Crandall's misconduct is a public reprimand, and we

agree that Attorney Crandall should bear the full costs of this

proceeding.

      ¶3   Attorney Crandall was admitted to the practice of law

in Wisconsin on September 19, 1991.                 He resides in New Richmond,

Wisconsin.      He is also licensed to practice law in Minnesota.

      ¶4   Effective     February        20,    2006,     we   suspended     Attorney

Crandall's Wisconsin law license for three months as reciprocal

discipline to that imposed by the Minnesota Supreme Court for

neglecting client matters, failing to communicate with clients,

failing to appear        at court hearings, failing               to comply with

discovery rules, and failing to cooperate with the disciplinary
investigation.      In re Disciplinary Proceedings Against Crandall,

2006 WI 6, 287 Wis. 2d 102, 708 N.W.2d 690.

      ¶5   On    March   4,    2008,     we    publicly     reprimanded      Attorney

Crandall for advancing a frivolous claim, failing to file a

client's   affidavit     or     a   brief      in    opposition    to   a    summary

judgment motion, failing to keep clients reasonably informed,

failing to return clients' files in a timely manner, and failing

to cooperate with the OLR's investigation.                     In re Disciplinary


                                          2
                                                                           No.    2014AP2487-D



Proceedings      Against     Crandall,       2008      WI    14,    307     Wis.    2d       536,

745 N.W.2d 679.

    ¶6      Effective      September        2,    2008,      we     suspended       Attorney

Crandall's       Wisconsin      law   license       for     30     days     as    reciprocal

discipline to that imposed by the Minnesota Supreme Court for

failing     to    act    with    diligence        and       promptness,          failing      to

communicate       with     clients,         engaging         in     conduct        involving

dishonesty and misrepresentation, and failing to cooperate with

the Minnesota disciplinary investigation.                          In re Disciplinary

Proceedings      Against     Crandall,       2008      WI    112,    314     Wis.       2d    33,

754 N.W.2d 501.

    ¶7      Effective        May      31,      2011,        we     suspended        Attorney

Crandall's Wisconsin law license for five months for failing to

hold advance fees in trust, failing to refund unearned fees, and

failing   to     cooperate      with    the      OLR's      investigation.              In    re

Disciplinary       Proceedings         Against         Crandall,           2011     WI       21,

332 Wis. 2d       698,    798      N.W.2d     183.          Attorney         Crandall        was

reinstated to the practice of law on January 5, 2012.
    ¶8      On     October      27,    2014,     the      OLR      filed     a    five-count

complaint against Attorney Crandall alleging (1) that Attorney

Crandall had failed to comply with the requirements of Supreme

Court Rule (SCR) 22.26 relating to the duties of an attorney

whose license has been suspended and (2) that he had failed to

cooperate with OLR's investigation into his alleged misconduct.

    ¶9      Attorney       Crandall      filed      an      answer     and       this    court

appointed      Referee     Curtis.          We   subsequently         denied        Attorney
Crandall's untimely motion to substitute a different referee.
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                                                                      No.    2014AP2487-D



On or about April 29, 2014, the parties submitted a stipulation

in which Attorney Crandall admitted the facts and misconduct

alleged in the complaint and             authorized the referee to make

findings    of    fact   and     conclusions         of    law       based     on        these

allegations.      The parties requested an evidentiary hearing on

the appropriate sanction.

    ¶10     Before the scheduled hearing, the parties reached a

second    stipulation        regarding   the       appropriate        sanction.             On

August 7, 2015, the parties stipulated to a public reprimand as

an appropriate sanction.

    ¶11     The referee filed his findings of fact, conclusions of

law, and recommendation for discipline on August 18, 2015.                                 The

referee determined that the OLR had met its burden of proof with

respect    to    the   five     counts   of        misconduct        alleged        in    the

complaint, and recommended that we accept the stipulations.                                 We

summarize those counts now.

    ¶12     As   previously      stated,      on    April      26,    2011,     Attorney

Crandall's license to practice law in Wisconsin was suspended
for a period of five months, effective May 31, 2011.                           The order

suspending Attorney Crandall mandated that he comply with the

requirements     of    SCR    22.26   pertaining          to   the     duties        of    an

attorney whose license has been suspended.

    ¶13     In April and May of 2011, Attorney Crandall was listed

as attorney of record for J.M., a party to an appeal then-

pending before the Wisconsin Court of Appeals.                              On June 30,

2011, the Court of Appeals certified the appeal to this court.


                                         4
                                                        No.    2014AP2487-D



     ¶14   On September 27, 2011, this court issued an order in

response to a motion filed by J.M. in which she advised the

court    that   she   had   only   recently   learned   that     Attorney

Crandall's law license had been suspended.         We granted J.M.'s

motion for a briefing extension and permitted substitution of

new counsel.

     ¶15   The OLR complaint alleged and the referee determined

that, by failing to send, on or before the effective date of his

suspension, written notice of his suspension by certified mail

to his client, J.M., Attorney Crandall violated SCR 22.26(1)(a)

and (b)1 (Count One).

     ¶16   The OLR complaint alleged and the referee determined

that, by failing to send, on or before the effective date of his

suspension, written notice of his suspension to the Court of

Appeals, Attorney Crandall also violated SCR 22.26(1)(c)2 (Count

Two).

     1
       SCR 22.26(1)(a) and (b) provide that, on or before the
effective date of license suspension, an attorney whose license
is suspended shall:

          (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.
     2
       SCR 22.26(1)(c) provides that, on or before the effective
date of license suspension, an attorney whose license is
suspended shall:

                                                              (continued)
                                    5
                                                             No.   2014AP2487-D



    ¶17    In January of 2012, Attorney Crandall continued to be

identified, during his period of suspension, as the attorney of

record in three separate appellate cases.           The OLR alleged that

Attorney Crandall did not properly provide either his clients or

the Court of Appeals with the notices required by SCR 22.26 in

those three cases.     Accordingly, the referee determined that, by

failing   to   send,   on    or   before   the   effective     date   of   his

suspension, written notice of his suspension by certified mail

to the three clients in the three separate appeals, Attorney

Crandall violated SCR 22.26(1)(a) and (b) (Count Three).

    ¶18    In addition, the referee determined that, by failing

to send, on or before the effective date of his suspension,

written notice of his suspension to the Court of Appeals in the

three     appellate         cases,    Attorney      Crandall          violated

SCR 22.26(1)(c) (Count Four).

    ¶19    Finally, the referee determined that Attorney Crandall

violated SCR 22.03(2) and (6),3 enforced via SCR 20:8.4(h),4 by


         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 184
    or, if there is none at the time notice is given,
    shall state the client's place of residence.
    3
        SCR 22.03(2) and (6) provide:

         (2)     Upon  commencing  an  investigation,   the
    director    shall notify the respondent of the matter
                                                     (continued)
                                      6
                                                                   No.    2014AP2487-D



failing to timely respond to the OLR's requests for a response

to a grievance investigation, doing so only after this court

issued an order to show cause (Count Five).

    ¶20    The     referee    then    considered        the   stipulation      for   a

public    reprimand,        mindful   of      his    need     to    consider        the

seriousness,      nature,    and   extent     of    misconduct,     the    level     of

discipline needed to protect the public and the legal system

from repetition of the misconduct, the need to impress on the

attorney the seriousness of the misconduct, and the need to

deter    others    from      committing       similar     acts.          See   In    re

    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.
    4
       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)."


                                          7
                                                                       No.       2014AP2487-D



Disciplinary         Proceedings     Against       Scanlan,     2006       WI     38,    ¶72,

290 Wis.      2d     30,   712    N.W.2d    877,     citing    In     re     Disciplinary

Proceedings        Against        Charlton,      174    Wis.     2d        844,     875-76,

498 N.W.2d      380    (1993).      The    referee     noted   that        he    considered

Attorney Crandall's prior disciplinary history and the concept

of progressive discipline.                See In re Disciplinary Proceedings

Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d

501.

       ¶21    The referee noted that the OLR relied on three prior

cases    in    support       of    the     recommended        discipline.               Public

Reprimand of Arik J. Guenther, 2007-3 (imposing public reprimand

where attorney failed to notify two clients of his suspension,

failed to include the two clients on his affidavit of compliance

filed with the OLR, and also failed to cooperate with the OLR);

Public Reprimand of Michael G. Trewin, 2006-6 (imposing public

reprimand where lawyer failed to notify the court and opposing

counsel of his suspension in several cases, failed to include

those cases on his affidavit of compliance filed with the OLR,
and had a conflict of interest on a matter); Public Reprimand of

Hazel   J.    Washington,         2007-10     (imposing    public          reprimand      for

lawyer's failure to inform a client, opposing counsel, and the

court of her suspension; failure to list the client, court, and

file number on the affidavit of compliance filed with the OLR;

and failure to provide competent representation).                               The referee

observed      that    Attorney      Crandall's     ethical      violations         in     this

matter reflect a level of indifference to the requirements of
the supreme court rules.                  The referee     concluded             that public
                                             8
                                                                                    No.        2014AP2487-D



discipline         is    appropriate           and      recommends          that          we     publicly

reprimand Attorney Crandall in this matter.

      ¶22     The referee further recommends that the court follow

its general policy and impose the full costs of the proceeding

on Attorney Crandall.

      ¶23     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.

      ¶24     There is no showing that any of the referee's findings

of fact are erroneous.                      Accordingly, we adopt them.                           We also

agree    with      the     referee's          conclusions            of     law      that        Attorney

Crandall violated the supreme court rules set forth above.                                              In

view of Attorney Crandall's fairly extensive prior disciplinary

history,      we        considered          whether      suspension            is      necessary        to
impress upon Attorney Crandall the seriousness of his misconduct

and   the     importance          of    abiding         by    the    rules        of      professional

conduct.          On balance, we accept the referee's recommendation

that a public reprimand is an appropriate sanction for Attorney

Crandall's        misconduct.               Although         no    two    fact      situations         are

identical, a public reprimand is generally consistent with the

sanction      imposed       in     somewhat          analogous           cases.            See     Public

Reprimand         of     Ronald        J.    Thompson,            2012-18      (imposing           public
reprimand for failure to comply with SCR 22.26 following license
                                                    9
                                                                No.        2014AP2487-D



suspension);   see    also   In   re     Disciplinary      Proceedings        Against

Mulligan, 2009 WI 12, 315 Wis. 2d 605, 759 N.W.2d 766 (imposing

public reprimand on lawyer with two prior reprimands).

    ¶25   We   also     agree     that        Attorney    Crandall     should       be

required to pay the full costs of the proceeding, which are

$4,182.17.

    ¶26   IT   IS    ORDERED      that    Eric    L.     Crandall     is     publicly

reprimanded for professional misconduct.

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

of this order, Eric L. Crandall shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶28   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 order.




                                         10
                                                          No.   2014AP2487-D.ssa


    ¶29     SHIRLEY S. ABRAHAMSON, J.           (dissenting).      I write in

dissent    in    several    attorney   discipline     cases   because   I   have

concerns about the discipline imposed.

    ¶30     This is Attorney Crandall's fifth brush with the OLR

in the seven years since 2008.              He has been disciplined four

times previously:       a three-month suspension, a public reprimand,

a 30-day suspension, and a five-month suspension.                 It does not

appear that the previous discipline had the impact the court

intended.       Nevertheless, the court now imposes another public

reprimand.       This sanction is too light.            The court professes

that it has "long adhered to progressive discipline."                   OLR v.

Netzer, 2014 WI 7, ¶49, 352 Wis. 2d 310, 841 N.W.2d 820.                     The

principle of progressive discipline should be applied here.                   It

is not.

    ¶31     Moreover, I write to state my difficulty reconciling

the significantly different levels of discipline imposed in the

instant case (public reprimand) and in OLR v. Boyle, 2015 WI

110, ___ Wis. 2d ___, ___ N.W.2d ___.
    ¶32     In    OLR v.    Boyle, the referee found (and the               court

agreed) that the respondent attorney committed all six charged

offenses     (including      two    trust   account     violations).         The

discipline:         a   60-day     suspension    plus    conditions.         The

respondent       attorney    had   received     three   private    reprimands

between 2002 and 2012.             How does the court justify imposing

harsher discipline on Attorney Boyle than on Attorney Crandall?

    ¶33     I also have difficulty reconciling the significantly
different levels of discipline imposed in the following three

                                        1
                                                                       No.    2014AP2487-D.ssa


cases.     The first two cases are based on a stipulation of the

parties.      The       third    case    is       a    default     by     the     respondent

attorney:

    •       OLR    v.    Krogman,       2015      WI   113,      ___    Wis. 2d ___,        ___

            N.W.2d ___:           Upon stipulation            admitting         the    factual

            allegations, the court orders a four-month suspension

            of    license       and   conditions          upon    reinstatement.            The

            complaint alleged 22 counts of professional misconduct

            involving four clients, misconduct relating to license

            suspension, and misconduct relating to trust accounts.

            The four-month suspension seems too light compared to

            the discipline imposed in the other cases.

    •       OLR    v.    Aleman,      2015        WI   112,      ___    Wis. 2d ___,        ___

            N.W.2d ___:           Illinois imposed a               two-year suspension

            for two counts of misconduct stemming from co-founding

            and    working       with    a     national       debt      settlement        firm.

            Upon    stipulation         of    the      parties,        this    court    orders

            reciprocal          discipline        in    Wisconsin.             The    two-year
            suspension seems too harsh compared to the discipline

            imposed in other cases.

    •       OLR v. Sayaovong, 2015 WI 100, 365 Wis. 2d 200, 871

            N.W.2d 217:          This per curiam was released November 18,

            2015, imposing suspension for a period of six months.

            Attorney Sayaovong defaulted in the discipline case.

            The complaint alleged six counts of misconduct, four

            counts involving two clients and two counts involving
            another       client.            In    2014    Attorney           Sayaovong     was

                                              2
                                                      No.   2014AP2487-D.ssa


          publicly reprimanded for misconduct in two separate

          client matters.       See OLR v. Sayaovong, 2014 WI 94, 357

          Wis. 2d 312, 850 N.W.2d 940.         The discipline does not

          seem consistent with the discipline imposed in other

          cases.

    ¶34   For the reasons set forth, I write in each of these

cases.

    ¶35   I   am   authorized    to   state   that   Justice   ANN   WALSH

BRADLEY joins this opinion.




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    No.   2014AP2487-D.ssa




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