                                                         2017 WI 51

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP2452-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against John R. Dade, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        John R. Dade,
                                  Respondent.
                             DISCIPLINARY PROCEEDINGS AGAINST DADE

OPINION FILED:          May 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                    2017 WI 51
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.    2016AP2452-D


STATE OF WISCONSIN                        :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:


Office of Lawyer Regulation,                                     FILED
           Complainant,                                     MAY 23, 2017
      v.                                                       Diane M. Fremgen
                                                            Clerk of Supreme Court
John R. Dade,

           Respondent.




      ATTORNEY     disciplinary    proceeding.        Attorney         publicly

reprimanded.


      ¶1   PER CURIAM.     The Office of Lawyer Regulation (OLR)

and Attorney John R. Dade have filed a stipulation pursuant to

Supreme    Court   Rule   (SCR)   22.12   jointly      recommending          that

Attorney Dade should be publicly reprimanded for professional
                                                  No.     2016AP2452-D



misconduct.1   Upon careful review of the matter, we approve the

stipulation and publicly reprimand Attorney Dade.       We impose no

costs.

     ¶2   Attorney Dade was admitted to the practice of law in

Wisconsin on January 11, 1983.      Attorney Dade's professional

discipline history consists of the following:

     a. In September of 1991, Attorney Dade received a
     private reprimand for failing to communicate, failing
     to act with reasonable diligence, and failing to
     cooperate with the investigation of the Board of
     Attorneys Professional Responsibility, the predecessor
     to the OLR. Private Reprimand No. 1991-24 (electronic
     copy                    available                    at
     https://compendium.wicourts.gov/app/raw/000049.html).

     b. In April of 2007, Attorney Dade received a public
     reprimand    for   failure    to   provide    competent
     representation, lack of diligence, and failure to
     communicate.   Public Reprimand of John R. Dade, No.
     2007-7      (electronic     copy      available      at
     https://compendium.wicourts.gov/app/raw/001916.html).

     c. In June of 2007, Attorney Dade's license             to
     practice law was suspended for 60 days for lack         of
     diligence, failure to hold in trust the property        of
     others in his client trust account, and failure         to

     1
       The stipulation in this matter was filed with the court on
February 14, 2017 and was promptly taken under advisement.      On
April 19, 2017, more than two months later, the OLR filed a
memorandum in support of the stipulation.     Supreme Court Rule
22.12 does not provide a formal deadline for filing such a
memorandum but this belated submission arrived well after the
court had deliberated and decided the matter.     Nothing in the
memorandum explains the reason for the excessive delay in
providing the court with this information.     Timely receipt of
the information would have facilitated this court's review but
does not affect the court's decision to accept the stipulation.




                                2
                                                                     No.       2016AP2452-D


      cooperate in an OLR investigation. In re Disciplinary
      Proceedings Against Dade, 2007 WI 66, 301 Wis. 2d 67,
      732 N.W.2d 433.

      d. In January of 2012, Attorney Dade received a public
      reprimand   for   lack   of   diligence,   failure   to
      communicate, failure to cooperate with the OLR's
      investigation, and failure to return a client's
      documents.    Public Reprimand of John R. Dade, No.
      2012-1      (electronic     copy      available      at
      https://compendium.wicourts.gov/app/raw/002427.html).

      e. In February of 2013, Attorney Dade's license to
      practice law was suspended for 60 days for lack of
      diligence, lack of communication, and failure to obey
      a court order. In re Disciplinary Proceedings Against
      Dade, 2013 WI 21, 345 Wis. 2d 646, 827 N.W.2d 86.

      f. In August of 2014, Attorney Dade's license to
      practice law was suspended for 90 days, and he was
      ordered to complete six CLE credits in law office
      management as a condition of reinstatement of his
      license, for lack of diligence and failure to
      cooperate with the OLR's investigation.         In re
      Disciplinary Proceedings Against Dade, 2014 WI 108, __
      Wis. 2d __, 852 N.W.2d 489.
      ¶3    On    December    15,     2016,      the    OLR   filed        a       complaint

against     Attorney   Dade        alleging      two   counts       of     professional

misconduct based on his representation of J.Q.                       In November of

2009, J.Q. paid Attorney Dade an advanced fee of $3,000 for

"case evaluation/possible representation."                    In January of 2010,

J.Q. formally retained Attorney Dade to represent him on eight

felony     drug   charges     in     Walworth      County     and    in        a    pending

probation revocation proceeding.

      ¶4    The complaint alleged and the parties stipulated that

Attorney Dade did not communicate to J.Q. in writing the scope

of   his   representation      or    the       basis   or   rate    of     his       fee   or
expenses for which J.Q. would be responsible.                      Attorney Dade did

                                           3
                                                              No.    2016AP2452-D



not communicate to J.Q. in writing the purpose and effect of the

$3,000 advanced fee that J.Q. paid.              During the course of his

representation of J.Q., Attorney Dade made several disbursements

from his trust account for the purpose of paying attorney fees

he   billed     to   J.Q.,   without   first   transmitting    the    requisite

notice to J.Q. that he was going to do so.

        ¶5     The OLR alleged and the parties later stipulated that,

by failing to communicate to J.Q. in writing the scope of his

representation or the basis or rate of his fee or expenses for

which J.Q. would be responsible; and by failing to communicate

to J.Q. in writing the purpose and effect of the $3,000 advanced

fee that J.Q. paid, Attorney Dade violated SCRs 20:1.5(b)(1) and

(2).2


        2
            SCRs 20:1.5(b)(l) and (2) provide:

             (1) 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   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. Any changes in the basis or rate
        of the fee or expenses shall also be communicated in
        writing to the client.

             (2) If the total cost of representation to the
        client, including attorney's fees, is more than $1000,
        the purpose and effect of any retainer or advance fee
        that is paid to the lawyer shall be communicated in
        writing.


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                                                               No.    2016AP2452-D



    ¶6   The     OLR    alleged    further      and   the   parties   thereafter

stipulated that, by making several disbursements from his trust

account for the purpose of paying his attorney fees without

first transmitting the requisite notice to J.Q., Attorney Dade

violated former SCR 20:1.15(g)(1).3              In its complaint, the OLR

sought a public reprimand and costs.                  The OLR did not seek

restitution.

    ¶7   On February 14, 2017, Attorney Dade entered into a

stipulation    with    the   OLR   in   which    he   agreed   that   the   facts

alleged in the OLR's complaint establish the alleged misconduct

and support the discipline sought by the OLR, namely a public



    3
      Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."      See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

         Former SCR 20:1.15(g)(1) provided:    At least 5
    business days before the date on which a disbursement
    is made from a trust account for the purpose of paying
    fees, with the exception of contingent fees or fees
    paid pursuant to court order, the lawyer shall
    transmit to the client in writing all of the
    following:

         a. an itemized bill or other accounting showing
    the services rendered;

         b. notice of the amount owed and the anticipated
    date of the withdrawal; and

          c. a statement of the balance of the client's
    funds   in  the   lawyer trust  account  after  the
    withdrawal.


                                        5
                                                                          No.     2016AP2452-D



reprimand.        The stipulation made no reference to restitution or

costs.

      ¶8     In    the     stipulation,        Attorney      Dade    states          that   the

stipulation did not result from plea bargaining, that he does

not contest the facts and misconduct alleged by the OLR or the

discipline sought by the OLR director.                       Attorney Dade further

states that he agrees the facts alleged in the OLR's complaint

may   form    a    basis      for   the     discipline       requested          by   the    OLR

director.         He     further    avers      that    he    fully     understands          the

misconduct        allegations;       fully         understands      the     ramifications

should this court impose the stipulated level of discipline;

fully      understands        his   right      to     contest    the       matter;      fully

understands his right to consult with counsel and represents

that he has in fact consulted with counsel; that his entry into

the stipulation is made knowingly and voluntarily; and that he

has read the OLR's complaint and the stipulation and that his

entry    into     the     stipulation       represents       his     decision         not    to

contest the misconduct alleged in the complaint or the level and
type of discipline sought by the OLR director.

      ¶9     This        is     Attorney           Dade's    seventh            disciplinary

proceeding.        Given Attorney Dade's lengthy disciplinary history

we question whether yet another public reprimand is sufficient

discipline for this latest incident of misconduct.                                Generally,

discipline        is    progressive       in       nature.       See,      e.g.,       In    re

Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296

Wis. 2d 47,        719     N.W.2d 501.              Unfortunately,         the       parties'
stipulation cites no case law in support of a public reprimand
                                               6
                                                                No.       2016AP2452-D



and does not explain why progressive discipline is not warranted

here.   Admittedly, there are times when progressive discipline

is not appropriate given the nature of the subsequent violation

or   other    extenuating     circumstances.            See,        e.g.,     In    re

Disciplinary    Proceedings       Against   Crandall,       2015     WI     111,   365

Wis. 2d 682, 872 N.W.2d 649 (imposing public reprimand on lawyer

with previous public reprimand and three previous disciplinary

suspensions).        The stipulation makes no reference to any such

extenuating circumstances.          However, at times we have imposed a

public reprimand despite prior discipline.                   See, e.g., In re

Disciplinary    Proceedings       Against   Kremkoski,       2006     WI     59,   291

Wis. 2d 1,    715    N.W.2d 594     (imposing    public      reprimand        despite

prior   private      and   public     reprimand);      In      re     Disciplinary

Proceedings Against Brandt, 2009 WI 43, 317 Wis. 2d 266, 766

N.W.2d 194     (imposing     public    reprimand       despite        two     private

reprimands     and     a   public     reprimand);      In     re      Disciplinary

Proceedings    Against     Hudec,   2014    WI   46,   354    Wis. 2d 728,         848

N.W.2d 287     (imposing     public    reprimand       despite        three    prior
private reprimands and one public reprimand).

     ¶10     On balance, we have decided to accept the parties'

stipulation and we impose the stipulated discipline, namely a

public reprimand. We are persuaded that this is appropriate as

the misconduct in this case does not appear to warrant license

suspension.     Because this matter was resolved without referee




                                       7
                                                        No.    2016AP2452-D



involvement, we do not impose costs upon Attorney Dade.4                It

appears restitution is not sought; neither the complaint nor the

stipulation addresses restitution.     Accordingly, no restitution

is ordered.

    ¶11   IT   IS   ORDERED   that   John   R.   Dade     is     publicly

reprimanded.




    4
       Upon the OLR's filing of proof of service, Referee John B.
Murphy was appointed.    Referee Murphy withdrew upon the filing
of the parties' stipulation.


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    No.   2016AP2452-D




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