                                                             2015 WI 104

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2014AP2086-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Richard W. Voss, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Richard W. Voss,
                                  Respondent.
                             DISCIPLINARY PROCEEDINGS AGAINST VOSS

OPINION FILED:          December 8, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2015 WI 104
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2014AP2086-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Richard W. Voss, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
              Complainant,
                                                                     DEC 8, 2015
      v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Richard W. Voss,

              Respondent.




      ATTORNEY        disciplinary      proceeding.         Attorney's          license

suspended.



      ¶1      PER   CURIAM.     We    review      a     stipulation         filed       by

Richard W.     Voss    and    the   Office   of       Lawyer    Regulation        (OLR),

pursuant to Supreme Court Rule (SCR) 22.12,1 which sets forth

      1
          SCR 22.12 (Stipulation) provides:

           (1) The director may file with the complaint a
      stipulation of the director and the respondent to the
      facts, conclusions of law regarding misconduct, and
      discipline to be imposed. The supreme court may
      consider the complaint and stipulation without the
      appointment of a referee, in which case the supreme
                                                     (continued)
                                                               No.    2014AP2086-D



findings    of     fact    and    conclusions   of   law   regarding    Attorney

Voss's six counts of professional misconduct.                 Attorney Voss is

already    under    suspension       pursuant   to   the   18-month   suspension

ordered    in      In     re     Disciplinary   Proceedings     Against    Voss,

2014 WI 75, 356 Wis. 2d 382, 850 N.W.2d 190, which runs until

February 22, 2016.

    ¶2      The parties' stipulation did not contain an agreement

regarding the appropriate level of discipline to be imposed.




    court   may  approve   the   stipulation,  reject the
    stipulation, or direct the parties to consider
    specific modifications to the stipulation.

         (2) If the supreme court approves a stipulation,
    it shall adopt the stipulated facts and conclusions of
    law and impose the stipulated discipline.

         (3) If the supreme court rejects a stipulation, a
    referee shall be appointed and the matter shall
    proceed as a complaint filed without a stipulation.

         (3m) If the supreme court directs the parties to
    consider specific modifications to the stipulation,
    the parties may, within 20 days of the date of the
    order, file a revised stipulation, in which case the
    supreme court may approve the revised stipulation,
    adopt the stipulated facts and conclusions of law, and
    impose the stipulated discipline. If the parties do
    not file a revised stipulation within 20 days of the
    date of the order, a referee shall be appointed and
    the matter shall proceed as a complaint filed without
    a stipulation.

         (4) A stipulation rejected by the supreme court
    has no evidentiary value and is without prejudice to
    the respondent's defense of the proceeding or the
    prosecution of the complaint.


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The parties agreed to brief the issue of sanctions before the

referee, James R. Erickson.

      ¶3     The referee accepted the stipulation and found, based

on   the    stipulation,        that    the       stipulated     facts        supported    a

conclusion       of   misconduct       on    all     six    counts.           The   referee

recommended that the court suspend Attorney Voss for a 60-day

period, consecutive to the 18-month suspension Attorney Voss is

currently serving.            The referee also recommended that the court

assess the OLR's full costs against Attorney Voss, which total

$2,801.98 as of July 30, 2015.

      ¶4     Because no appeal has been filed from the referee's

report     and   recommendation,        we    review       the   matter       pursuant    to

SCR 22.17(2).2        We adopt the findings of fact and conclusions of

law to which the parties have stipulated and as adopted by the

referee.         We   agree    that    the    seriousness        of    Attorney     Voss's

misconduct       warrants      a   60-day         suspension     of    his     license    to

practice     law,     consecutive      to     the     18-month        suspension     he   is

currently serving, together with costs.
      ¶5     Attorney Voss was admitted to the practice of law in

Wisconsin in 1976.

      2
          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.


                                              3
                                                                         No.    2014AP2086-D



       ¶6      Attorney       Voss      has    been     disciplined      previously         for

misconduct.          In 2004, Attorney Voss was privately reprimanded

for failing to provide competent representation and failing to

keep       a    client       reasonably         informed.          Private        Reprimand

No. 2004-24.3         In 2006, Attorney Voss received a public reprimand

for    various       trust    account         violations.        Public    Reprimand        of

Richard W. Voss, 2006-7.                  In 2014, Attorney Voss received an

18-month       suspension         for   his     conduct     as   the     court-appointed

guardian of the person and estate of an individual suffering

from mental illness.               This court determined that Attorney Voss

committed       11    counts       of    misconduct       by,    among    other      things,

converting at least $48,791.73 of his client's funds either for

his own use or to cover expenditures for other client matters,

committing        various         trust       account     violations,          and    making

misrepresentations to the circuit court regarding his client's

assets.        Voss, 356 Wis. 2d 382.

       ¶7      This    disciplinary            matter     involves       six    counts       of

misconduct,       four       of   which       concern    Attorney      Voss's        work    in
bankruptcy matters, and two of which concern Attorney Voss's

trust account practices.                 We take the following facts from the

parties' stipulation.




       3
       The OLR's complaint and the parties' stipulation both cite
Private Reprimand No. 2004-25, but that matter involved criminal
conduct by a lawyer, which clearly does not fit the description
of Attorney Voss's misconduct.     Private Reprimand No. 2004-24
involved violations of SCRs 20:1.1 and 20:1.4(a).


                                                4
                                                                      No.    2014AP2086-D



       ¶8     Attorney Voss was hired to file bankruptcies for his

clients, J.M. and L.R.              In both cases, before doing any work,

Attorney Voss had the client pay approximately $500 in attorney

fees   and    approximately        $300       in    filing   fees.      Attorney     Voss

placed      these   funds    into       his    client     trust     account.      It    is

undisputed that while the funds remained in trust, they remained

an asset of the client.

       ¶9     Attorney Voss, or his staff under his direction, told

J.M. and L.R. that the firm would file a fee waiver application

with the appropriate United States Bankruptcy Court.                           Attorney

Voss's office would prepare the fee waiver application, along

with the bankruptcy petition.                      When drafting these documents,

Attorney Voss failed to disclose to the bankruptcy court that

the filing fee had already been paid by the client and that

Attorney Voss was holding the funds in trust.

       ¶10    Attorney Voss, or his staff under his direction, had

J.M. and L.R. sign the bankruptcy documents under penalty of

perjury.       In signing the bankruptcy documents, J.M. and L.R.
verified that the documents were accurate, including a statement

that they could not afford to pay the filing fee, and including

an   asset     disclosure        that    did       not   disclose    the    filing     fee

payments held in Attorney Voss's firm's trust account.

       ¶11    In    the   J.M.    bankruptcy         case,   the     bankruptcy    court

denied the filing fee waiver application on September 25, 2013.

The court ordered that J.M. pay the filing fee in installments

beginning on October 25, 2013.                     Neither Attorney Voss nor his
staff contacted J.M. to let her know of the denial of her filing
                                               5
                                                                         No.    2014AP2086-D



fee waiver application.             J.M. first learned that the bankruptcy

court had denied her waiver application and that her filing fee

remained unpaid at the meeting of creditors on October 17, 2013.

J.M. was upset upon learning this information because she had

paid the filing fee to Attorney Voss months earlier and had not

been told of the denial of her filing fee waiver application.

      ¶12    On October 25, 2013——the date the first installment of

J.M.'s filing fee was due——Attorney Voss's secretary paid the

filing fee in full.             Before this date, Attorney Voss's secretary

had   experienced         difficulties        determining       from     the    bankruptcy

court's website how much was owed as a filing fee and how to pay

it.   Because Attorney Voss's secretary did not inform him of her

difficulties in paying the filing fee, Attorney Voss was unaware

of the problems until he received a letter from the OLR about

the matter.

      ¶13    In     the    L.R.    bankruptcy        case,    the    bankruptcy           court

approved L.R.'s filing fee waiver application.                            When Attorney

Voss received the notice of the approval, he refunded to L.R.
the filing fee which was held in trust.

      ¶14    Attorney        Voss       has       submitted     filing         fee    waiver

applications for bankruptcy clients other than J.M. and L.R.

after having collected filing fees from those other clients.                                In

all   of    those    cases,       the   filing      fee   held      in   trust       was   not

disclosed as an asset of the debtor in the bankruptcy documents.

If the bankruptcy court waived the filing fee, Attorney Voss's

office      returned      the     filing      fee    to   the    clients.            If    the


                                              6
                                                                   No.    2014AP2086-D



bankruptcy court did not waive the filing fees, Attorney Voss's

office paid the filing fee to the bankruptcy court.

       ¶15   The   remaining     conduct     at     issue      concerns     Attorney

Voss's continued inability or unwillingness to comply with the

trust account rules.         Since at least 1986, Attorney Voss has

used a particular bank account at M&I Bank (n/k/a BMO Harris

Bank) as his client trust account.            Attorney Voss has designated

this account as his client trust account.                    However, the account

is not an Interest on Lawyer Trust Accounts (IOLTA) account and

does   not   accrue   interest    to    be   paid       to   the   Wisconsin    Trust

Account Foundation, Inc.

       ¶16   Attorney Voss has long been on notice that he must

rectify his handling of trust account funds.                   In 2006, Attorney

Voss received a public reprimand for misconduct that, in part,

related to his failure to maintain accurate records of his trust

account activity and his failure to maintain an IOLTA trust

account.      In   2012,   the    OLR   filed       a    disciplinary      complaint

seeking to discipline Attorney Voss for misconduct that included
his failure to maintain an IOLTA trust account; this complaint

culminated in the 18-month suspension which Attorney Voss is

currently serving.         Attorney Voss continued, throughout these

prior matters, and throughout the OLR's investigation of the

present matter, to use the non-IOLTA account at M&I Bank (n/k/a

BMO Harris Bank) as his client trust account.

       ¶17   In late 2013, the OLR requested a copy of Attorney

Voss's trust account transaction register for the period of time
in which he was holding J.M.'s filing fee in trust.                         Attorney
                                        7
                                                                  No.     2014AP2086-D



Voss provided to the OLR a list of deposits and a separate list

of disbursements, which did not separately or collectively meet

the requirements for compliant trust account documents.

      ¶18     On the basis of these facts, the parties stipulated,

and   the     referee   concluded,     that     Attorney   Voss      committed    the

following acts of misconduct:

             Count One:        By filing or causing his staff to file

              applications for filing fee waivers with the United

              States    Bankruptcy     Courts    on    behalf   of    clients    that

              failed to disclose the amounts being held by Attorney

              Voss on behalf of the clients for payment of their

              filing    fees,    and   thereby        failing   to      comply   with

              applicable    Federal     Rules     of     Bankruptcy       Procedure,

              Attorney Voss violated SCR 20:3.4(c).4

             Count Two:    By filing or causing his staff to file on

              behalf of clients applications for filing fee waivers

              with United States Bankruptcy Courts that failed to

              disclose the funds being held in trust by Attorney
              Voss on behalf of the clients for payment of their

              filing fees, Attorney Voss violated SCR 20:8.4(c).5


      4
       SCR 20:3.4 (c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
      5
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                         8
                                                               No.     2014AP2086-D



           Count Three:       By failing to adequately supervise his

            staff   so   as   to    ensure   that     documents   prepared      and

            filed by his staff on behalf of clients conformed in

            all respects with applicable law and court rules and

            were in all respects accurate, Attorney Voss violated

            SCR 20:5.3(a) and (b).6

           Count Four:       By failing to take reasonable steps to

            ensure his staff timely informed him and/or clients of

            case    developments,     including       the   payment    status    of

            filing fees, Attorney Voss violated SCR 20:5.3(a) and

            (b).

           Count   Five:      By    (i)    failing    to   maintain    a   pooled

            interest bearing account; (ii) failing to participate

            in the Interest on Trust Accounts Program; and (iii)

            depositing      client    and    third    party   funds     that    are

            nominal in amount and/or intended to be held for a


    6
       SCR 20:5.3(a) and (b) provide that, with respect to a
nonlawyer employed or retained by or associated with a lawyer,

         (a) a partner, and a lawyer who individually or
    together with other lawyers possesses comparable
    managerial authority in a law firm shall make
    reasonable efforts to ensure that the firm has in
    effect measures giving reasonable assurance that the
    person's conduct is compatible with the professional
    obligations of the lawyer;

         (b) a lawyer having direct supervisory authority
    over the nonlawyer shall make reasonable efforts to
    ensure that the person's conduct is compatible with
    the professional obligations of the lawyer[.]


                                        9
                                                                    No.    2014AP2086-D



            short      period   of    time       in   a     non-interest-bearing

            account,      Attorney        Voss    violated     SCR        13.047   and

            SCR 20.15(c)(l).8

           Count Six:      By failing to provide the OLR with a copy

            of   his    trust   account        transaction    register       for   the

            period     requested     of    him   by   the    OLR,    Attorney      Voss

            violated SCR 20:1.15(e)(7).9              In the alternative, by

            failing to maintain a compliant transaction register

    7
       SCR 13.04 provides, as relevant here, that "an attorney
shall participate in the [Interest on Trust Accounts] program as
provided in SCR 20:1.15[.]"
    8
        SCR 20:1.15(c)(1) provides:

          A lawyer or law firm who receives client or 3rd-
    party funds that the lawyer or law firm determines to
    be nominal in amount or that are expected to be held
    for a short period of time such that the funds cannot
    earn income for the benefit of the client or 3rd party
    in excess of the costs to secure that income, shall
    maintain a pooled interest-bearing or dividend-paying
    draft   trust   account  in   an  IOLTA  participating
    institution.
    9
        SCR 20:1.15(e)(7) provides:

         All trust account records have public aspects
    related to a lawyer's fitness to practice. Upon
    request of the office of lawyer regulation, or upon
    direction of the supreme court, the records shall be
    submitted to the office of lawyer regulation for its
    inspection, audit, use, and evidence under any
    conditions to protect the privilege of clients that
    the court may provide. The records, or an audit of the
    records, shall be produced at any disciplinary
    proceeding involving the lawyer, whenever material.
    Failure    to   produce   the    records   constitutes
    unprofessional conduct and grounds for disciplinary
    action.


                                          10
                                                                      No.        2014AP2086-D



             for   the       period   requested,          Attorney        Voss     violated

             SCR 20:1.15(f)(l)a.10

    ¶19      The parties briefed the issue of sanctions before the

referee.       The     OLR     encouraged        the     referee     to     recommend      a

six-month license suspension of Attorney Voss's Wisconsin law

license, to run consecutive to his present suspension.                             Attorney

Voss encouraged the referee to recommend a less-than-six-month

suspension, to run concurrent to his present suspension.

    ¶20      In his report, the referee recommended that the court

impose   a    60-day     license      suspension,         to   run    consecutive         to

Attorney Voss's present suspension.                      The referee wrote that a

six-month     period      of     suspension            following     Attorney        Voss's

18-month suspension, as the OLR requested, was unnecessary to

    10
        SCR 20:1.15(f)(1)a. provides that complete records of a
trust account that is a draft account shall include a
transaction register. Specifically:

         The   transaction   register   shall contain   a
    chronological record of all account transactions, and
    shall include all of the following:

             1. the date, source, and amount of all deposits;

         2. the date, check or transaction number, payee
    and amount of all disbursements, whether by check,
    wire transfer, or other means;

         3. the date and amount of every other deposit or
    deduction of whatever nature;

         4. the identity of the client for whom funds were
    deposited or disbursed; and

         5. the          balance       in        the     account     after        each
    transaction


                                            11
                                                                           No.      2014AP2086-D



meet the goals of Wisconsin's disciplinary system——especially

since, in the referee's view, Attorney Voss's misconduct has

"more to do with sloppy office supervision and inadequate staff

and    self-training           than     it    has      to      do    with        intentional

professional misconduct."

       ¶21    Because no appeal was filed from the referee's report

and     recommendation,           our        review         proceeds          pursuant       to

SCR 22.17(2).        When reviewing a report and recommendation in an

attorney disciplinary proceeding, we affirm a referee's findings

of fact unless they are found to be clearly erroneous.                                   In re

Disciplinary        Proceedings       Against       Inglimo,        2007      WI     126,   ¶5,

305 Wis. 2d 71,        740 N.W.2d 125.                 We      review      the       referee's

conclusions of law, however, on a de novo basis.                              Id.     Finally,

we    determine     the    appropriate        level       of    discipline          given   the

particular     facts      of   each     case,     independent        of     the      referee's

recommendation       but    benefitting         from    it.         In   re      Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45,

660 N.W.2d 686.
       ¶22    We adopt the findings of fact and conclusions of law

to    which   the    parties     have    stipulated         and     as    adopted      by   the

referee.      We agree with the referee that the stipulated facts

demonstrate that Attorney Voss committed each of the six counts

of misconduct alleged in the OLR's complaint.

       ¶23    We further agree with the referee that Attorney Voss's

misconduct warrants a 60-day suspension of his Wisconsin law

license.      In imposing a 60-day suspension in lieu of a lengthier
suspension,     we    note      particularly        the     referee's         determination
                                             12
                                                                    No.    2014AP2086-D



that Attorney Voss's mistakes were more a result of slipshod

practices, as Attorney Voss claimed, than flagrant misconduct,

as the OLR claimed——a determination from which the OLR has not

appealed.      Even given that the events in this case were merely

the result of sloppy lawyering, however, we have no difficulty

justifying a 60-day suspension.                See, e.g., In re Disciplinary

Proceedings Against McKloskey,              2009 WI 65, 318 Wis. 2d 602,

768 N.W.2d 10 (60-day suspension for sloppy and careless trust

account procedures and failure to keep a client informed).

       ¶24   We   further     agree   with     the    referee      that    the   60-day

suspension     should   run      consecutive     to    Attorney     Voss's       present

18-month suspension.           We were concerned enough with Attorney

Voss's practice habits to impose a lengthy 18-month suspension.

Were we aware of the facts presented here, which further call

into   question    Attorney      Voss's     trust     accounting      practices       and

forthrightness      with    courts    and      clients,    we   are   confident       we

would have imposed an even longer suspension.                       A consecutively

imposed      suspension     is     therefore      in      order.          See    In    re
Disciplinary Proceedings Against Woodard, 190 Wis. 2d 487, 488,

526 N.W.2d 510 (1995).

       ¶25   We note that Attorney Voss has filed no objection to

the costs requested by the OLR, which total $2,801.98 as of

July 30, 2015.      We therefore impose them.

       ¶26   Finally, we note that the OLR did not seek restitution

in this case.      None is ordered.

       ¶27   IT IS ORDERED that the license of Richard W. Voss to
practice law in Wisconsin is suspended for a period of 60 days,
                                          13
                                                         No.    2014AP2086-D



to   run   consecutive   to    the    discipline    imposed     in        In    re

Disciplinary     Proceedings     Against      Voss,     2014         WI        75,

356 Wis. 2d 382, 850 N.W.2d 190.

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

of this order, Richard W. Voss shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

     ¶29   IT   IS   FURTHER   ORDERED     that    compliance    with          all

conditions of this decision is required for reinstatement.                     See

SCR 22.28(2).




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