                                                              2013 WI 90

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP2338-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Robert Paul D'Arruda, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Robert Paul D'Arruda,
                                  Respondent.




                           DISCIPLINARY PROCEEDINGS AGAINST D’ARRUDA

OPINION FILED:          November 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2013 WI 90
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2012AP2338-D


STATE OF WISCONSIN                        :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Robert Paul D'Arruda, Attorney at Law:

Office of Lawyer Regulation,                                     FILED
              Complainant,
                                                            NOV 20, 2013
      v.
                                                               Diane M. Fremgen
                                                            Clerk of Supreme Court
Robert Paul D'Arruda,

              Respondent.




      ATTORNEY      disciplinary    proceeding.       Attorney         publicly
reprimanded.


      ¶1      PER CURIAM.    We review, pursuant to SCR 22.17(2),1 the
report of the referee, Richard C. Ninneman, recommending the


      1
          SCR 22.17(2) states:

           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.
                                                                                 No.         2012AP2338-D



court        publicly      reprimand        Attorney          Robert      Paul          D'Arruda      for
professional misconduct.                  No appeal has been filed.
        ¶2      We approve and adopt the referee's findings of fact
and   conclusions          of     law.          We    agree      that    Attorney            D'Arruda's
misconduct warrants a public reprimand, and we direct Attorney
D'Arruda to reimburse one former client, as provided herein.                                          We
impose the full costs of this proceeding, which total $6,014.07
as of September 4, 2013.
        ¶3      Attorney        D'Arruda         was      licensed       to    practice         law   in
Wisconsin       in     1993.         He    is    a     criminal      defense        attorney        from
Milwaukee,           Wisconsin.                 Attorney         D'Arruda        was          privately
reprimanded           in   2011      for    misconduct            in     two     client         matters

involving        failure        to    provide            clients       with     a       written       fee
agreement, failure to provide clients with an itemized statement
or accounting for services, and failure to respond in a timely
manner to clients' grievances and Office of Lawyer Regulation
(OLR) requests for information.
        ¶4      On     October       25,        2012,      the     OLR        filed      a     14-count
complaint alleging that Attorney D'Arruda committed misconduct
in connection with four client matters.                            Attorney D'Arruda filed
an answer admitting allegations related to ten of the counts.
On    June      28,     2013,     the      parties         entered       into       a    stipulation
reflecting these concessions.                            Prior to the hearing, the OLR
voluntarily dismissed one of the remaining counts.

        ¶5      On July 25, 2013, the referee conducted an evidentiary
hearing.         Attorney        D'Arruda         testified        on    his     own      behalf      and
called character witnesses.                          On August 15, 2013, the referee
                                                     2
                                                                       No.        2012AP2338-D



filed        a    report      and   recommendation         accepting     the        parties'
stipulation and, with respect to the remaining three counts of
misconduct, concluding Attorney D'Arruda engaged in misconduct
on two of the counts and recommending dismissal of the third.
The referee recommended the court impose a public reprimand and
order restitution to one client.                   No appeal was filed.
        ¶6        This court will affirm a 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.                                This
court        is     free      to    impose     whatever      discipline           it    deems
appropriate, 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.
        ¶7        The   referee     accepted       the   parties'   stipulation           that
Attorney D'Arruda failed to provide his clients H.A. and A.M. a
written communication explaining the basis or rate of his fee
and the purpose and effect of the advanced fee he accepted in
violation of SCRs 20:1.5(b)(l) and (2)2 (Count 1); failed to
        2
            SCRs 20:1.5(b)(1) and (2) state as follows:

             (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, 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.

                                               3
                                                                   No.   2012AP2338-D



deposit funds in a trust account until earned, and failed to
refund     an   unearned    $500    fee   upon    request     in     violation      of
SCRs 20:1.15(b)(4)3        (Count   2)    and   20:1.16(d)4    (Count       3);    and
failed to timely respond to the ensuing grievance in violation
of   SCR   22.03(2),5      enforceable    via    SCR   20:8.4(h)6        (Count    4).


           (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.
      3
       SCR      20:1.15(b)(4)       states:       Unearned     fees       and     cost
advances.

           Except as provided in par. (4m), unearned fees
      and advanced payments of fees shall be held in trust
      until earned by the lawyer, and withdrawn pursuant to
      sub. (g). Funds advanced by a client or 3rd party for
      payment of costs shall be held in trust until the
      costs are incurred.
      4
          SCR 20:1.16(d) provides as follows:

           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. The lawyer may retain papers
      relating to the client to the extent permitted by
      other law.
      5
          SCR 22.03(2) states:

           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
                                          4
                                                                      No.     2012AP2338-D



Record evidence indicates the Wisconsin Lawyers' Fund for Client
Protection          (the     Fund)        subsequently      reimbursed          Attorney
D'Arruda's client $500 for an advanced fee and Attorney D'Arruda
testified      that    he,    in     turn,   reimbursed         the   Fund    such   that
restitution in this matter is not warranted.
       ¶8     The    referee       also    accepted   the   parties'         stipulation
relating      to     the   matter     of     B.F.,    concluding       that     Attorney
D'Arruda failed to turn over B.F.'s file and discovery materials
to   successor       appellate       counsel      after   his    representation       was
terminated      in    January      2011,     in   violation      of   SCR     20:1.16(d)
(Count 12); and failed to provide a timely written response to
the B.F. grievance in violation of SCR 22.03(2), enforceable via

SCR 20:8.4(h) (Count 13).
       ¶9     The    referee       also    accepted   the   parties'         stipulation
that Attorney D'Arruda failed to respond to multiple requests by
the OLR regarding a grievance filed by another former client,
D.L.       The referee thus concluded that Attorney D'Arruda violated
SCR 22.03(2), enforceable via SCR 20:8.4(h), based on his delay
in responding to the grievance (Count 14).

       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
       SCR 20:8.4(h) states 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); . . . ."

                                             5
                                                                      No.        2012AP2338-D



     ¶10    Attorney D'Arruda stipulated to some, but not all of
the allegations pertaining to his representation of L.N.
     ¶11    L.N.     hired    Attorney         D'Arruda     in     July     of     2009    to
represent     her    in    connection     with     a    police      investigation           in
Racine County.        L.N. paid Attorney D'Arruda $750 in 2009 and
paid him an additional $1,500 in 2010.                      On May 17, 2010, the
State charged L.N. with a felony.
     ¶12    Between October 26, 2010, and August 30, 2011, L.N.'s
case was called for trial several times.                     Each time, the court
convened a status conference instead.                   L.N. was unhappy with the
delay and eventually filed a grievance with the OLR.                              In August
2011 L.N. retained new counsel who arranged a plea deal on her

behalf.
     ¶13    The     OLR    alleged      that     Attorney        D'Arruda        failed    to
promptly pursue resolution of L.N.'s case from November 2010
until his representation was terminated in July or August 2011
(Count 5), failed to inform L.N. that he would not appear at all
scheduled court dates (Count 6), failed to respond to L.N.'s
phone calls between March 2011 and July 2011 (Count 7), failed
to give L.N. a final accounting and a refund of any unearned
advanced fees and required notices upon the termination of his
representation (Count 8), failed to refund unearned fees (Count
9), and failed to timely respond in writing to L.N.'s grievance
(Count 10).

     ¶14    Attorney D'Arruda stipulated to the misconduct alleged
in   Counts    6,     8,    and   10,     and     the     referee     accepted            that
stipulation.        Attorney D'Arruda contested the OLR's claims that
                                           6
                                                                     No.    2012AP2338-D



he failed to diligently pursue the case, failed to respond to
phone calls, and failed to refund unearned fees.
       ¶15    Attorney D'Arruda testified that he was prepared to
try L.N.'s case as early as October 26, 2010.                     However, when the
case   was    called    on    October      26,   2010,   the     prosecutor    was    in
another      trial    and    the    court   continued      the    case.       Attorney
D'Arruda admits that he did not appear at a February 15, 2011
trial date because he was in another trial in Milwaukee County.
He explained that he sent a message by facsimile to both the
Racine County District Attorney's office and the court.                              The
message did not reach the court because Attorney D'Arruda used
an incorrect fax number, but the prosecutor received the message

and the court adjourned the matter.                On May 10, 2011, the trial
date was changed to a scheduling conference because of a lack of
communication        between       Attorney      D'Arruda      and    the     district
attorney.
       ¶16    The referee declined to hold Attorney D'Arruda solely
responsible for these delays in advancing the L.N. matter to
resolution.         The referee thus concluded that the OLR failed to
prove this claim by clear, satisfactory, and convincing evidence
and recommended the court dismiss Count 5.
       ¶17    The    referee       found    that   facts       set   forth     in    the
stipulation clearly established that Attorney D'Arruda failed to
respond to L.N.'s phone calls during the relevant time period




                                            7
                                                                       No.     2012AP2338-D



and         thus        concluded       that       Attorney        D'Arruda      violated
SCR 20:l.4(a)(4)7 (Count 7).
        ¶18       Regarding the alleged failure to refund unearned fees,
the referee noted that L.N. paid Attorney D'Arruda $2,250 and
the record evidence indicates the cost of the legal services
Attorney D'Arruda provided exceeded that payment.                            However, the
June 2, 2010 fee agreement between L.N. and Attorney D'Arruda's
law firm stated that L.N. would be provided with "a written
accounting of all fees incurred in the matter and a refund of
any advanced fees, if any, that have not been earned or advanced
costs that have not been used."                       Attorney D'Arruda testified
that he was willing to pay $250 as a refund to L.N. for unearned

fees,       and    the    referee    recommended       this    court   order     Attorney
D'Arruda to do so.
        ¶19       We      accept        the        referee's        conclusions        and
recommendations               regarding     the     L.N.    matter     including       the
dismissal of Count 5 of the complaint.
        ¶20       The referee then considered the appropriate discipline
for Attorney D'Arruda's misconduct.                        The OLR sought a 60-day
suspension and restitution to L.N. in the amount of $250 for
unearned advanced fees.                   Attorney D'Arruda asked for a public
reprimand.
        ¶21       The    referee    recommends      this    court    impose     a   public
reprimand.              The   referee     acknowledges      that    Attorney     D'Arruda

        7
       SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply    with   reasonable  requests  by   the   client   for
information; . . . ."

                                               8
                                                                          No.     2012AP2338-D



previously         received       a     private      reprimand,          but     noted      the
misconduct      in       this    case     occurred       at    a   time    when     Attorney
D'Arruda faced multiple outside pressures including dissolution
of    his    small   law    firm,       divorce,     financial      pressures,        and   an
excessive caseload.              The referee explicitly noted that "[f]rom
the testimony, these pressures and distractions are behind him."
The referee noted that character witnesses described Attorney
D'Arruda      as     a    highly        experienced       criminal        lawyer     who     is
"competent, dignified and respected."                         The referee was mindful
that "[a] suspension at this time and the resulting closure of
his    sole    practitioner           office       for   several     months        could    be
devastating to his law practice."                   We agree.

       ¶22    Finally, we turn to the issue of costs.                           Our general
policy is to impose the full costs of a disciplinary proceeding
on    the    respondent         attorney    who     is    found     to    have     committed
professional misconduct.                See SCR 22.24(1m).            We see no reason
to depart from that policy in this matter.
       ¶23    Accordingly, we adopt the referee's findings of fact
and conclusions of law and determine that a public reprimand is
the appropriate discipline for Attorney D'Arruda's professional
misconduct, together with restitution to L.N., and payment of
full costs.
       ¶24    IT IS ORDERED that Attorney Robert Paul D'Arruda is
publicly reprimanded for his professional misconduct.
       ¶25    IT IS FURTHER ORDERED that if he has not already done
so, within 60 days of the date of this order, Attorney Robert


                                               9
                                                              No.    2012AP2338-D



Paul   D'Arruda    shall   pay   $250    in     restitution    to    his   former
client, L.N.
       ¶26   IT IS FURTHER ORDERED that, within 60 days of the date
of this order, Attorney Robert Paul D'Arruda shall pay to the
Office of Lawyer Regulation the costs of this proceeding.
       ¶27   IT   IS   FURTHER   ORDERED      that    restitution    is    to   be
completed    before    payment   of     costs    to   the   Office    of   Lawyer
Regulation.
       ¶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.   2012AP2338-D




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