                                                         2017 WI 97

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2016AP1385-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Sergio Magaña, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Sergio Magaña,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST MAGAÑA

OPINION FILED:          November 28, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                         2017 WI 97
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2016AP1385-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Sergio Magaña, Attorney at Law:

Office of Lawyer Regulation,                                          FILED
                Complainant,
                                                                 NOV 28, 2017
      v.
                                                                    Diane M. Fremgen
                                                                 Clerk of Supreme Court
Sergio Magaña,

                Respondent.




      ATTORNEY        disciplinary     proceeding.        Attorney's         license

revoked.



      ¶1        PER CURIAM.    We review Referee Jonathan V. Goodman's

recommendation that the court declare Attorney Sergio Magaña in

default and revoke his Wisconsin law license in connection with

his work in 22 client matters, his non-cooperation with                            the

Office     of    Lawyer   Regulation's     (OLR)    investigation         into     his

conduct,        his   conviction     for   misdemeanor         operating        while

intoxicated (second offense), and his failure to report that
conviction to the OLR and the clerk of this court.                     The referee
                                                                         No.    2016AP1385-D



also       recommended     that    Attorney         Magaña        be   ordered     to     pay

restitution and the costs of this proceeding.

       ¶2     Because     no    appeal     has      been     filed,      we    review     the

referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1

After conducting our independent review of the matter, we agree

with the referee that, based on Attorney Magaña's failure to

answer the amended complaint filed and served by the OLR, the

OLR is entitled to a default judgment.                       We also agree with the

referee that Attorney Magaña's professional misconduct warrants

the    revocation    of    his    law    license.            We    further     agree     that

Attorney Magaña should pay restitution in the amounts described

below, and that he should pay the full costs of this proceeding.

       ¶3     Attorney     Magaña       was       admitted    to       practice    law     in

Wisconsin in September 2012.                  According to the OLR's amended

complaint      and   the       referee's      report,        Attorney      Magaña's       law

license has been suspended for nonpayment of bar dues and for




       1
           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.


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failing     to   comply     with     the     trust     account       certification

requirements.2

     ¶4     In   July   2016,      the   OLR   filed     a   complaint       against

Attorney Magaña that raised 27 counts of misconduct committed in

eight client matters:        E.S. (Counts 1-4); M.M.-M. (Counts 5-8);

G.A.H. (Counts 9-12); A.G. (Counts 13-15); O.M.G. (Counts 16-

19); A.L. (Counts 20-22); M.S. (Counts 23-24); and M.R. (Counts

25-27).     In August 2016, Attorney Magaña filed an answer to the

complaint in which he admitted some counts of misconduct and

denied the remainder.

     ¶5     In mid-October and mid-December 2016, the referee sent

correspondence to Attorney Magaña requesting that he contact the

referee to set a date for a scheduling conference.                          Attorney

Magaña did not respond.

     ¶6     On   December    27,     2016,     the     OLR   filed     an   amended

complaint    against    Attorney     Magaña     that    raised    74    counts   of

misconduct.      Seventy-two of these counts concerned misconduct

allegedly committed in 22 client matters:                    E.S. (Counts 1-4);
M.M.-M. (Counts 5-8); A.H. (Counts 9-12); A.G. (Counts 13-15);

O.M.G. (Counts 16-19); A.L. (Counts 20-22); M.S. (Counts 23-24);

M.R. (Counts 25-27); J.B.G. (Counts 28-29); J.F.C. (Counts 30-


     2
       According to the State Bar of Wisconsin's website,
Attorney Magaña's law license is in good standing, but is in
inactive status, which means that he is not engaged in the
practice of law in Wisconsin.     See State Bar of Wisconsin,
www.wisbar.org   (last  visited Sept.  25,  2017); see   also
SCR 10.03(3)(Membership).


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                                                                No.     2016AP1385-D



34); R.A. (Counts 35-38); A.A. (Counts 39-41); A.C.C. (Counts

42-45); A.D. (Counts 46-49); R.G. (Counts 50-51); F.M. (Counts

52-53); F.R.A. (Counts 54-56); C.R. (Counts 57-60); I.R.M. and

I.I. (Counts 61-64); I.M. (Counts 65-66); M.S. (Counts 67-70);

and N.S.M. (Counts 71-72).          Two additional counts (Counts 73-74)

related    to   Attorney      Magaña's     misdemeanor         operating        while

intoxicated (second offense) conviction, entered in April 2014,

and his subsequent failure to report the same to the OLR and the

clerk of this court.         The OLR served the amended complaint on

Attorney Magaña via U.S. Mail.

    ¶7      On February 2, 2017, Attorney Magaña filed a request

for additional time to respond to the OLR's amended complaint.

Attorney    Magaña    confirmed     that   he   had    received       the     amended

complaint via U.S. Mail, but claimed that his receipt of the

document had been delayed because he had been away on a "holiday

break" at the time the OLR had mailed it.                    He further alleged

that the breadth of the allegations necessitated additional time

for his response.         Although the OLR agreed in writing to extend
the answer deadline to March 15, 2017, Attorney Magaña failed to

answer by that date, prompting the OLR to file a motion for

default judgment in April 2017.            The referee set the matter for

a telephonic hearing at which Attorney Magaña failed to appear.

On June 26, 2017, the referee filed a report recommending that

Attorney Magaña be declared in default; concluding that Attorney

Magaña    engaged    in   serious   professional       misconduct       warranting

license    revocation;      and   recommending        that    the     court     order


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Attorney Magaña to pay both the full costs of this proceeding

and restitution in certain specified amounts.

      ¶8     Attorney      Magaña          has    not      filed       an    appeal      from     the

referee's report and recommendation.                          Accordingly, our review

proceeds pursuant to SCR 22.17(2).

      ¶9     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 with the referee that Attorney Magaña should

be declared in default.              Attorney Magaña undisputedly received a

copy of the amended complaint, but failed to appear or present a

defense despite being given ample opportunity to do so.                                    He has,

therefore, defaulted.               We also accept the referee's findings of

fact based on the allegations of the amended complaint, and
agree      with    the     referee            that        those    findings             support    a

determination of misconduct on the 74 counts alleged in the

OLR's complaint.

      ¶11    The       scope    of       Attorney         Magaña's          misconduct——which,

again, is deemed admitted here——is vast and troubling.                                       Given

the   volume      of    uncontested           allegations         in    the       OLR's    61-page

amended     complaint,         we   do     not    repeat      them      all      here.       It    is

sufficient to provide the following summary.


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    ¶12      Attorney    Magaña       practiced    immigration        law       at     a    law

firm in the Milwaukee area.               Time and again, Attorney Magaña

collected flat fees and cost advances from his clients and did

not perform the work he committed to do.                   He would often ignore

his clients' requests for information about their cases.                                   When

he did communicate with his clients, he would supply them with

false information——including fabricated documents and false case

numbers——in     order    to    deceive    them     into    believing         that      their

cases    were   progressing      on    schedule,        when   in    fact       they       were

languishing     due     to    Attorney    Magaña's        inactivity.             Attorney

Magaña eventually left his employing law firm, but did not tell

his clients of his departure or take any steps to protect their

interests upon his departure.                 He was uncooperative with the

OLR's investigation into his conduct.                    In April 2014, he pled

guilty to a charge of misdemeanor operating while intoxicated

(second offense), and failed to timely report that conviction to

the OLR and the clerk of this court.

    ¶13      The OLR alleged and the referee concluded that this
string    of    misdeeds      amounted    to      the    following         74     acts      of

professional misconduct:

            Contrary    to    SCR     20:1.3,3    Attorney         Magaña       willfully

             failed to act with diligence and promptness during his

             representation of E.S. (Count 1); M.M.-M. (Count 5);

             A.H. (Count 9); A.G. (Count 13); O.M.G. (Count 16);

    3
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."


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                                                           No.    2016AP1385-D



            A.L. (Count 20); M.S. (Count 23); M.R. (Count 25);

            J.B.G. (Count 28); J.F.C. (Count 30); R.A. (Count 35);

            A.A. (Count 39); A.C.C. (Count 42); A.D. (Count 46);

            R.G. (Count 50); F.M. (Count 52); F.R.A. (Count 54);

            C.R.   (Count   57);   I.R.M.   and   I.I.   (Count   61);   I.M.

            (Count 65); M.S. (Count 67); and N.S.M. (Count 71).

           Contrary to 20:1.4(a)(3),4 and also, in some instances,

            SCR 20:1.4(a)(4),5 Attorney Magaña failed to keep the

            following clients reasonably informed about the status

            of their cases:        E.S. (Count 2); M.M.-M. (Count 6);

            A.H. (Count 10); A.G. (Count 14); O.M.G. (Count 17);

            A.L. (Count 21); M.S. (Count 24); M.R. (Count 26);

            J.B.G. (Count 29); J.F.C. (Count 31); R.A. (Count 36);

            A.A. (Count 40); A.C.C. (Count 43); A.D. (Count 47);

            F.M. (Count 53); F.R.A. (Count 55); C.R. (Count 58);

            I.R.M. and I.I. (Count 62); and M.S. (Count 68).

           Contrary to SCR 20:1.15(b)(1),6 Attorney Magaña failed

            to hold the filing fees paid by his client, J.F.C., in
            trust (Count 33).

    4
       SCR 20:1.4(a)(3) provides: "A lawyer shall keep the client
reasonably informed about the status of the matter."
    5
       SCR 20:1.4(a)(4) provides:     "A lawyer shall promptly
comply with reasonable requests by the client for information."
    6
        SCR 20:1.15(b)(1) provides:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation. All funds of clients
                                                    (continued)
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           Contrary to SCR 20:8.4(c),7 Attorney Magaña engaged in

            dishonesty, fraud, deceit, or misrepresentation during

            his representation of E.S. (Count 3); M.M.-M. (Count

            7); A.H. (Count 11); A.G. (Count 15); O.M.G. (Count

            18); M.R. (Count 27); J.F.C. (Counts 32 and 34); R.A.

            (Count 37); A.D. (Count 48); F.R.A. (Count 56); C.R.

            (Count   59);   I.R.M.   and   I.I.   (Count   63);    and   M.S.

            (Count 69).

           Contrary to SCR 22.03(6)8 and also, in some instances,

            SCR 22.03(2),9 enforced via SCR 20:8.4(h),10 Attorney



    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.
    7
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    8
       SCR 22.03(6)   provides:   "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."
    9
        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
                                                    (continued)
                                     8
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             Magaña failed to provide relevant information to the

             OLR in a timely fashion during its investigation into

             his representation of E.S. (Count 4); M.M.-M. (Count

             8); A.H. (Count 12); O.M.G. (Count 19); A.L. (Count

             22); R.A. (Count 38); A.A. (Count 41); A.C.C. (Counts

             44 and 45); A.D. (Count 49); R.G. (Count 51); C.R.

             (Count 60); I.R.M. and I.I. (Count 64); I.M. (Count

             66); M.S. (Count 70); and N.S.M. (Count 72).

            Contrary to SCR 20:8.4(b)11 and SCR 21.15(5),12 Attorney

             Magaña engaged in conduct leading to his misdemeanor

    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present any
    information deemed relevant to the investigation.
    10
       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(2), SCR 22.03(6),
or SCR 22.04(1)."
    11
       SCR 20:8.4(b) provides:   "It is professional misconduct
for a lawyer to commit a criminal act that reflects adversely on
the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects."
    12
         SCR 21.15(5) provides:

         An attorney found guilty or convicted of any
    crime on or after July 1, 2002, shall notify in
    writing the office of lawyer regulation and the clerk
    of the Supreme Court within 5 days after the finding
    or conviction, whichever first occurs.     The notice
    shall include the identity of the attorney, the date
    of finding or conviction, the offenses, and the
    jurisdiction.   An attorney's failure to notify the
    office of lawyer regulation and the clerk of the
    supreme court of being found guilty of his or her
    conviction is misconduct.


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              operating      while           intoxicated             (second        offense)

              conviction,    and       then       failed    to   timely       report     that

              conviction to the OLR and the clerk of this court

              (Counts 73 and 74).

       ¶14    Based   upon   our       review      of     the    record,      we    have   no

difficulty      agreeing     with      the        referee's      recommendation          that

Attorney Magaña's law license should be revoked.                         The undisputed

facts show a clear pattern of neglect by Attorney Magaña of his

clients' needs and objectives, of his professional obligations

as an attorney, and of the basic importance of truthfulness.                               No

sanction short of revocation would be sufficient to protect the

public, deter other lawyers from similar behavior, and impress

upon Attorney Magaña the many errors of his ways.                                  In short,

Attorney     Magaña   cannot      be    entrusted         with   a    law     license.      A

revocation of Attorney Magaña's law license is also consistent

with   other    disciplinary        cases         in    which    we   have     revoked     an

attorney's license.          See, e.g., In re Disciplinary Proceedings

Against      Kelly,   2012   WI     55,   341          Wis. 2d 104,     814     N.W.2d 844
(revocation for 51 counts of misconduct for, among other things,

failing to perform any substantial work on client cases, failing

to respond to client inquiries, falsely promising clients that

legal work would be completed shortly, and failing to cooperate

with the OLR); In re Disciplinary Proceedings Against Fadner,

2007 WI 18, 299 Wis. 2d 54, 727 N.W.2d 20 (revocation for 45

counts of misconduct for, among other things, failing to draft

and file papers for clients as promised, failing to respond to


                                             10
                                                               No.   2016AP1385-D



client inquiries, failing to appear at scheduled court hearings,

and failing to cooperate with the OLR).

    ¶15      We further conclude that full costs are to be imposed

on Attorney Magaña.         The OLR's requested costs, as of July 14,

2017, total $4,925.31.          Attorney Magaña has failed to object to

these requested costs or allege any factors that would justify a

reduction in them.        He will accordingly bear them in full.

    ¶16      As     to   the    issue    of     restitution,     the    referee

recommended, consistent with the OLR's request in its amended

complaint,        that   this   court   order    Attorney   Magaña      to   pay

restitution to former client M.S. in the amount of $630; to

former client J.F.C. in the amount of $420; and to his prior law

firm in the amount of $420.         We agree with this recommendation.

    ¶17      IT IS ORDERED that the license of Sergio Magaña to

practice law in Wisconsin is revoked, effective the date of this

order.

    ¶18      IT IS FURTHER ORDERED that Sergio Magaña shall pay

restitution in the following amounts:
            $630 to former client M.S.;

            $420 to former client J.F.C; and

            $420 to his former law firm.

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

of this order, Sergio Magaña shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $4,925.31 as

of July 14, 2017.




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                                                No.   2016AP1385-D



    ¶20   IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

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

already done so, Sergio Magaña shall comply with the provisions

of SCR 22.26 concerning the duties of a person whose license to

practice law in Wisconsin has been revoked.




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    No.   2016AP1385-D




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