                                                         2017 WI 86

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2016AP2486-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Steven J. Sarbacker, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Steven J. Sarbacker,
                                  Respondent.
                           DISCIPLINARY PROCEEDINGS AGAINST SARBACKER

OPINION FILED:          September 15, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                 2017 WI 86
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.    2016AP2486-D


STATE OF WISCONSIN                     :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Steven J. Sarbacker, Attorney at Law:


Office of Lawyer Regulation,                                  FILED
           Complainant,                                  SEP 15, 2017
      v.                                                    Diane M. Fremgen
                                                         Clerk of Supreme Court
Steven J. Sarbacker,

           Respondent.




      ATTORNEY   disciplinary   proceeding.       Attorney's         license
suspended.



      ¶1   PER CURIAM.    We review the report and recommendation

of Referee James C. Boll, approving a partial stipulation filed

by the Office of Lawyer Regulation (OLR) and Attorney Steven J.

Sarbacker and concluding that Attorney Sarbacker committed the

professional misconduct alleged by the OLR, as stipulated by the

parties.     The referee determined that a 60-day suspension of
Attorney Sarbacker's license to practice law is appropriate.
                                                                        No.       2016AP2486-D



       ¶2     Upon    careful   review     of    this        matter,       we     uphold      the

referee's findings of fact and conclusions of law and agree that

a    60-day   license    suspension       is     an     appropriate         sanction          for

Attorney Sarbacker's misconduct.                We also find it appropriate to

impose the full costs of this proceeding, which are $1,375.83 as

of June 13, 2017.          The OLR does not seek restitution and no

restitution is ordered.

       ¶3     Attorney   Sarbacker       was     admitted       to   practice           law    in

Wisconsin in 1995.             He practices in Portage, Wisconsin.                             In

2013, Attorney Sarbacker received a private reprimand for his

conduct     resulting    in     a    misdemeanor        conviction          for    operating

while intoxicated.         Private Reprimand No. 2013-15 (electronic

copy                                    available                                              at

https://compendium.wicourts.gov/app/raw/002634.html).                               In 2016,

he received a private reprimand for his failure to obey a court

order pertaining to child support.                Private Reprimand No. 2016-9

(electronic                     copy                     available                             at

https://compendium.wicourts.gov/app/raw/002899.html).
       ¶4     On    December    21,    2016,     the     OLR    filed        a    six    count

disciplinary        complaint       alleging     five    counts        of       professional

misconduct involving one client matter and an additional count

of     professional      misconduct        based        on     criminal           misconduct

committed      by    Attorney       Sarbacker.        The     OLR    sought        a    60-day

suspension and costs.

       ¶5     The facts, to which the parties have stipulated, are

as follows.         In November 2011, D.F. and L.F., a married couple,
obtained      a    $5,441.20    money    judgment        against       a     tenant      in     a
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                                                                       No.     2016AP2486-D



Columbia     County       circuit        court     proceeding.         They      retained

Attorney Sarbacker to collect the money judgment.                            There was no

written     fee    agreement.       In    July      2012,    Sarbacker       advised   the

clients     in     writing    that       he   could     no    longer     pursue     their

collection case.          He did not charge them.

      ¶6     In 2013, the couple again retained Attorney Sarbacker

to pursue the collection case.                    Again, there was no written fee

agreement.        By June of 2014, Attorney Sarbacker had successfully

arranged     for    the    Ho-Chunk        Nation's     Department       of     Treasury-

Payroll Division (DOT-P) to garnish the wages of the debtor and,

in   July    2014,        Attorney       Sarbacker      began     receiving        weekly

garnishment checks on behalf of his clients.                      At this time, the

outstanding debt was $5,914.45.

      ¶7     Attorney Sarbacker and the clients agreed that his fee

and costs would total $2,032.73 and that he would take this

amount from the garnishment checks, then send the balance of the

garnishment funds to the clients.                    Attorney Sarbacker knew the

total cost of representation exceeded $1,000, a fact relevant to
whether a written fee agreement was required.

      ¶8     Attorney Sarbacker began depositing garnishment checks

into both his trust account and operating accounts.                           By December

29, 2014, Attorney Sarbacker had received 24 garnishment checks

totaling $2,038.30 - $5.57 more than his agreed upon fee of

$2,032.73.        After December 29, 2014, Attorney Sarbacker received

25   additional      garnishment          checks,     representing       the     clients'

portion of the garnishment but he did not disburse these funds
to the clients.
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                                                                        No.     2016AP2486-D



       ¶9      By    June     2015,       the       clients     had     demanded     their

garnishment         portion      from     Attorney       Sarbacker        but     Attorney

Sarbacker failed to send them the garnished funds.                            Accordingly,

L.F.       contacted   the       DOT-P    and       requested    that    all     remaining

garnishment checks be sent directly to the clients.                           On June 26,

2015, the DOT-P began sending weekly garnishment checks directly

to the clients.

       ¶10     On July 14, 2015, L.F. sent a certified letter to

Attorney Sarbacker listing the clients' unsuccessful attempts to

contact him.        She demanded payment plus interest of the clients'

portion of the garnishment funds in his possession.                               Attorney

Sarbacker failed to respond.

       ¶11     Finally,     by    early    October       2015,    Attorney       Sarbacker

sent the clients a cashier's check in the amount of $2,171.29

and a receipt documenting $61.25 of incurred costs.1

       ¶12     The clients filed a grievance with the OLR.                        Attorney

Sarbacker failed to promptly respond to the OLR's requests for

information about the grievance.
       ¶13     Based on these events, the OLR alleged and Attorney

Sarbacker has stipulated to five counts of misconduct in the

complaint, as follows:

       Count One: By representing the clients pursuant to an
       unwritten contingent fee agreement, Attorney Sarbacker
       violated SCR 20:1.5(c).2

       1
       In total, the DOT-P issued 70 garnishment checks totaling
$5,914.45.   The clients received $3,881.72 ($1,710.43 from the
DOT-P and $2,171.29 from Attorney Sarbacker).


                                                4
                                                 No.   2016AP2486-D


    Count Two:     By depositing 15 garnishment checks
    totaling $1,273.49 into his business account, that
    were the property of the clients, and by disbursing
    $892.23 of the clients' funds to himself from his
    trust account Attorney Sarbacker, in each instance,
    violated SCR 20:1.15(b)(1).3


    2
        SCR 20:l.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.
    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(b)(1) provided:

         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.


                                  5
                                                  No.   2016AP2486-D


    Count Three: By depositing 10 checks totaling $892.23
    into his trust account and then disbursing almost all
    of those funds to himself or his law office, and by
    depositing the remaining 15 checks totaling $1,273.49
    directly   into   his   operating   account,   Attorney
    Sarbacker, in each instance, violated SCR 20:8.4(c).4

    Count Four:    By failing to promptly deliver to the
    clients their portion of the garnishment funds,
    Attorney Sarbacker violated former SCR 20:1.15(d)(1).5

    Count Five: By failing to timely provide the OLR with
    a written response to the clients' grievance, Attorney
    Sarbacker violated SCR 22.03(2),6 enforceable via
    20:8.4(h).7


    4
       SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to . . . engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    5
        Former SCR 20:1.15(d)(1) provided:

         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.
    6
        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
    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
                                                    (continued)
                                 6
                                                                           No.    2016AP2486-D



       ¶14    The sixth and final count of alleged misconduct does

not involve representation of a client.                             On March 16, 2016,

Attorney Sarbacker was charged in Sauk County circuit court with

three misdemeanors: pointing a firearm at or toward another,

battery, and disorderly conduct.                     See State v. Sarbacker, Sauk

County circuit court case no. 2016CM000113.                           Attorney Sarbacker

eventually pled no contest to the battery and disorderly conduct

charges      and     the     pointing       a     firearm     charge       was    dismissed.

Attorney Sarbacker entered into a 12-month deferred prosecution

agreement         whereby    if     he    successfully      complies           with    specific

conditions, the charges will be dismissed.

       ¶15    After        the     court        appointed      a     referee          in     this

disciplinary matter, the parties executed a partial stipulation.

The    stipulation          provides       that     Attorney       Sarbacker          does    not

contest the facts and that he admits to committing the alleged

misconduct.          He affirms that: the stipulation did not result

from       plea    bargaining;       he     fully     understands          the    misconduct

allegations;        he     fully    understands       his     right       to    contest      this
matter; he fully understands his right to consult with counsel;

his    entry        into     this        stipulation     is        made    knowingly          and



       questions,   furnish   documents,   and   present                               any
       information deemed relevant to the investigation.
       7
       SCR 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(6), or SCR
22.04(1)."


                                                7
                                                                                 No.        2016AP2486-D



voluntarily; and, his entry into this stipulation represents his

decision not to contest the misconduct alleged in the complaint.

    ¶16     The       parties        agreed        to       submit         the     question          of

appropriate discipline to the referee, without an evidentiary

hearing.          Both      parties    filed        briefs           on     the        question      of

discipline.           As    noted,    the    OLR    sought           a    60-day        suspension.

Attorney Sarbacker argued for a public reprimand.                                  In his brief,

Attorney        Sarbacker      offered       some        personal           context           for   the

criminal charges against him.                 He also stated that a suspension

would have a very adverse effect on his practice.

    ¶17     The       OLR     objected        to        the     narrative              in     Attorney

Sarbacker's brief, describing it as impermissible hearsay and an

effort     to    present       new    evidence          and     new        facts        beyond      the

complaint       and    stipulation.           The        OLR        asked    the        referee      to

disregard this information.

    ¶18     The          referee       issued           a       thorough           report           and

recommendation         on    May     25,    2017.             Based       upon     the        parties'

stipulation, the referee found that the OLR met its burden of
proof with respect to all six counts of misconduct alleged in

the complaint.              With respect to the question of appropriate

discipline,        the      referee        reviewed           the        parties'           respective

submissions.           The    referee       observed           that       Attorney           Sarbacker

submitted no authority that would justify his request for a

public     reprimand.           The    referee           acknowledged             that        Attorney

Sarbacker's       brief      presented       additional             facts    surrounding            the

incident that led to count six of the complaint. The referee
noted that he was "not able to determine the veracity and, thus,
                                              8
                                                                         No.       2016AP2486-D



the    impact   of    the    additional         facts"        and,    accordingly,          the

referee limited his consideration to the stipulated facts in

determining sanctions.

       ¶19   The referee then identified the factors relevant to

determining the appropriate sanction, which include:

       [T]he seriousness, nature and extent of misconduct,
       the level of discipline needed to protect the public,
       the courts, and the legal system from repetition of
       the attorney's misconduct, the need to impress upon
       the attorney the seriousness of the misconduct and the
       need to deter other attorneys from committing similar
       misconduct.
In re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72,

290 Wis. 2d 30, 712 N.W.2d 877.

       ¶20   The   referee    observed          that    the     OLR's    brief       provided

several      instructive     cases,     including             two     cases        that    were

factually similar, although the lawyers in those cases each had

more serious prior discipline than Attorney Sarbacker.                                    In re

Disciplinary       Proceedings       Against           Wood,     2014        WI    116,     358

Wis. 2d 472, 854 N.W.2d 844,            (ninety-day suspension for seven

counts of misconduct stemming from representation of clients in

a dispute with a construction company); and In re Disciplinary

Proceedings Against Steinhafel, 2013 WI 93, 351 Wis. 2d 313, 839

N.W.2d 404,        (four-month       suspension           for        seven        counts     of

misconduct      stemming     from     two       client         matters       and     lawyer's

criminal conviction).          The referee found persuasive two cases

both    imposing     a    60-day     suspension.                See     In     Disciplinary

Proceedings     Against     Bartz,    2015       WI     61,     362   Wis. 2d 752,          864
N.W.2d 881,     (lawyer with previous private reprimand suspended


                                            9
                                                                        No.     2016AP2486-D



for 60 days based on five counts of misconduct including failure

to disburse settlement funds and failure to cooperate); and In

re Disciplinary Proceedings Against Trowbridge, 177 Wis. 2d 485,

501 N.W.2d 452 (1993), (lawyer with previous private reprimand

suspended       for    60        days    for    failure      to   respond       to        client

inquiries, failure to prosecute, and trust account violations,

including a violation of SCR 20:8.4(c) for converting a $300

check payable to him as personal representative of his mother's

estate).

       ¶21     In making his recommendation for a 60-day suspension

here,    the     referee         noted    that       Attorney     Sarbacker         had    been

previously disciplined and that the misappropriation of client

funds occurred over a period of several months.                               The referee

expressed concern about the vulnerability of the clients, who

are both disabled.                As mitigating factors, the referee noted

that Attorney Sarbacker reimbursed the clients and has completed

an     anger    management          program.           On    balance,      the        referee

recommended this court suspend Attorney Sarbacker's license to
practice law for a period of 60 days.

       ¶22     No appeal was filed so we review this matter pursuant

to SCR 22.17(2).            This court will adopt the referee's findings

of fact unless they are 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


                                               10
                                                                           No.       2016AP2486-D



Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261

Wis. 2d 45, 660 N.W.2d 686.

       ¶23     We     adopt        the     referee's        findings       of        fact     and

conclusions of law that Attorney Sarbacker violated the supreme

court rules as alleged in the six counts of the complaint.                                     We

further       agree    with       the    referee     that    a    60-day    suspension         of

Attorney Sarbacker's license to practice law in Wisconsin is an

appropriate level of discipline.

       ¶24     No two cases are precisely the same, but we agree with

the referee that In re Disciplinary Proceeding Against Bartz,

2015     WI    61,         362    Wis. 2d 752,       864     N.W.2d 881          and     In    re

Disciplinary Proceeding Against Trowbridge, 177 Wis. 2d 485, 501

N.W.2d 452 (1993) are instructive.                      We find the misconduct at

issue here to be reasonably analogous to the misconduct in these

cases, and we agree that a similar suspension is appropriate.

We deem it appropriate, as is our usual custom, to impose the

full     costs        of     this       disciplinary        proceeding          on     Attorney

Sarbacker.          As Attorney Sarbacker has made restitution to D.F.
and L.F., the OLR does not seek restitution and we do not impose

restitution.

       ¶25     IT     IS    ORDERED      that   Attorney         Steven    J.    Sarbacker's

license to practice law in Wisconsin is suspended for a period

of 60 days, effective October 27, 2017.

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

of this order Steven J. Sarbacker shall pay to the Office of

Lawyer    Regulation             the    costs   of    this       proceeding,         which    are
$1,375.83 as of June 13, 2017.
                                                11
                                                       No.    2016AP2486-D



    ¶27     IT IS FURTHER ORDERED that, to the extent that he has

not already done so, Steven J. Sarbacker 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.

    ¶28     IT   IS   FURTHER   ORDERED   that   compliance   with    all

conditions of this order is required for reinstatement.          See SCR

22.28(3).




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