                                                                2018 WI 18

                  SUPREME COURT               OF     WISCONSIN
CASE NO.:                2012AP931-D & 2014AP2086-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against Richard W. Voss, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant-Appellant,
                              v.
                         Richard W. Voss,
                                   Respondent-Respondent.
                         ------------------------------------------------
                         In the Matter of Disciplinary Proceedings
                         Against Richard W. Voss, Attorney at Law:

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

OPINION FILED:           March 1, 2018
SUBMITTED ON BRIEFS:     November 27, 2017
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For    the       respondent-respondent       (2012AP931-D),   respondent-
appellant (2014AP2086-D), there were briefs filed by Richard W.
Voss, Rhinelander.


       For    the      complainant-appellant     (2012AP931-D),      complainant-
respondent (2014AP2086-D), there was a brief filed by Julie M.
Spoke        and         Office      of    Lawyer      Regulation,      Madison.
                                                                 2018 WI 18
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.

No.    2012AP931-D & 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-Appellant,
                                                          MAR 1, 2018
      v.
                                                            Sheila T. Reiff
                                                         Clerk of Supreme Court
Richard W. Voss,

           Respondent-Respondent.


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

Office of Lawyer Regulation,

           Complainant-Respondent,

      v.

Richard W. Voss,

           Respondent-Appellant.




      ATTORNEY reinstatement proceeding.     Reinstatement denied.
                                                       No.        2012AP931-D & 2014AP2086-D



    ¶1      PER CURIAM.        Richard W. Voss has appealed a referee's

report recommending the denial of Attorney Voss's petition for

reinstatement of his license to practice law in Wisconsin.                                  We

agree with the referee that Attorney Voss's license to practice

law should not be reinstated at this time.                           We direct Attorney

Voss to pay the costs of the reinstatement proceeding, which

totaled $4,034.75 as of November 13, 2017.

    ¶2      Attorney    Voss        was       admitted        to      practice        law   in

Wisconsin in 1976 and practiced in Rhinelander.                           In 2004, he was

privately     reprimanded          for        failing        to      provide        competent

representation and failing to keep a client reasonably informed.

Private   Reprimand     No.    2004-24            (electronic        copy    available      at

https://compendium.wicourts.gov/app/raw/001746.html).                                In 2006,

Attorney Voss was publicly reprimanded for various trust account

violations.       Public reprimand of Richard W. Voss, No. 2006-7

(electronic   copy     available         at       https://compendium.wicourts.gov/

app/raw/001861.html).

    ¶3      In 2014, Attorney Voss's license to practice law was
suspended for 18 months 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        about     the     client's
assets.     In re Disciplinary Proceedings Against Voss, 2014 WI
                                              2
                                                      No.     2012AP931-D & 2014AP2086-D



75, 356 Wis. 2d 382, 850 N.W.2d 190.                       In 2015, Attorney Voss's

law   license      was    suspended    for       a   period   of    60   days,   to    run

consecutive to the discipline imposed in 2014.                           The misconduct

at issue in the 2014 case included improprieties in the handling

of matters filed in United States Bankruptcy Courts; failing to

adequately supervise his staff so as to ensure the documents

prepared and filed by staff on behalf of clients conformed in

all respects with applicable law and court rules and were in all

respects accurate; 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; trust

account violations; and failing to provide the Office of Lawyer

Regulation (OLR) with a copy of his trust account transaction

register for the period requested of him by the OLR.                               In re

Disciplinary        Proceedings       Against        Voss,     2015      WI   104,     365

Wis. 2d 442, 871 N.W.2d 859.

      ¶4        Attorney Voss filed a petition for the reinstatement

of his license to practice law in March 2016.                         The OLR filed a
response opposing the Petition for Reinstatement.                         The OLR said

its investigation revealed that Attorney Voss's conduct since

his suspension has not been exemplary and above reproach and he

cannot     be    safely     recommended      to      the    legal     profession,      the

courts, and the public as a person fit to be consulted by others

or act in matters of trust or confidence.

      ¶5        The Honorable John B. Murphy was appointed referee.                      A

hearing was held in October 2016.                     Attorney Voss was the only
witness to testify at the hearing.
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                                                         No.     2012AP931-D & 2014AP2086-D



       ¶6     The referee issued his report and recommendation on

November 1, 2016.           The referee found that Attorney Voss had met

some of the reinstatement criteria.                            The referee found that

Attorney Voss did not practice law during his suspension, kept

up    on    his    educational      requirements,              and   met   his    financial

obligations as to reimbursement and payment of client claims and

fees.       The referee found, however, that Attorney Voss did not

meet some of the other reinstatement requirements.

       ¶7     The    referee       said    most         importantly,       Attorney         Voss

failed to comply with the Order of Suspension by not properly

notifying his clients, by mail, of his suspension and that the

cessation of his law practice was a result of the suspension.

The referee said while it was true that Attorney Voss did send

letters to his bankruptcy clients, those letters made no mention

of any suspension or attorney disciplinary action.                             Rather, the

letters simply indicated that Attorney Voss would be "leaving my

Law    Practice     on    September       4,   2014."          The   referee     said       when

questioned        about     the    letters         at    the     evidentiary          hearing,
Attorney Voss seemed to feel that there was no need to give his

bankruptcy        clients    a    reason    for     why    he    was   leaving        his   law

practice since the end result —— the client would need to find a

new attorney —— would be the same whether or not the clients

knew about the suspension.                 The referee said, "any reasonable

reading of the Voss letters makes clear that Voss was trying to

give    his   clients       the   impression        that       his   winding     up    of   his

practice was just a routine matter and was, implicitly, based
upon some 'good' reason such as retirement."
                                               4
                                                          No.   2012AP931-D & 2014AP2086-D



      ¶8        The referee said Attorney Voss seemed to feel that his

failure to mention the suspension in the letters he sent to

clients was merely an oversight because it did not occur to him

to mention it at the time.               The referee said the record suggests

otherwise.        The referee noted that SCR 22.26(1)(a) is clear as

to the need to establish the nexus between leaving the practice

of law and the suspension.               The referee said this is not a rule

where    "substantial         compliance"          is    good   enough.           The   referee

opined that failure to use the word "suspension" in the letters

to clients meant that SCR 22.26(1)(a) was not complied with.

      ¶9        The referee also noted that Attorney Voss testified at

the evidentiary hearing that he became aware that the initial

notification       letters      that     his       secretary      had    to      send   to    the

bankruptcy clients were erroneously sent out by registered mail

rather than certified mail.               Once Attorney Voss became aware of

this error, he instructed his secretary to resend the letters.

The referee said since the only way Attorney Voss could have

known      of    the   need    to   use        certified        mail       was    by    reading
SCR 22.26(1)(a), Attorney Voss's claim that he was unaware of

the requirement of stating that a suspension was the cause of

his     termination      of    practice        was       absurd      and      suggests       that

Attorney Voss is being disingenuous in his claim that he was

ignorant of the provisions of the rule.

      ¶10       The referee went on to note that on September 25,

2014, Attorney Voss signed a document entitled "Winding up of

Practice Richard W. Voss," which was a sworn statement that
Attorney        Voss   provided     to    this          court   at      the      time   of    his
                                               5
                                                    No.   2012AP931-D & 2014AP2086-D



suspension.         The referee noted that in the document, Attorney

Voss attested that, "[a]ll clients with pending matters in which

he was the attorney of record were advised of his inability to

continue     to     represent        them   after    September         4,   2014,        the

effective date of the suspension."                The referee said the wording

of this paragraph, along with the language of the letters sent

to the bankruptcy clients, leads to the conclusion that Attorney

Voss    deliberately         chose     to   circumvent      the    requirement           of

SCR 22.26(1)(a) by misleading his clients about his suspension.

       ¶11   Further, the referee said Attorney Voss admitted that

he failed to give any written notification of his suspension and

his leaving the practice of law to any of his public defender

clients.     The referee said this, too, was a clear violation of

the    requirement        of    SCR 22.26(1)(a)       and    "suggests            a     more

troubling concern regarding Voss's competency to practice law."

The    referee       noted     that     Attorney     Voss    testified            at     the

evidentiary hearing that public defender clients were somehow

not his clients but were rather clients of the public defender
itself and that Attorney Voss represented the individual clients

by    some   sort    of   proxy.        The     referee   said,    "this       view       is

extremely     troubling        since   it   indicates     that    Voss      has       little

understanding of the attorney-client relationship or how that

relationship is the cornerstone of all legal practice."

       ¶12   In addition, the referee noted that SCR 22.26(1)(c)

requires     all    suspended     or    revoked     attorneys     to    give      written

notice to all         courts, agencies, and opposing counsel of the
suspension or revocation and of the termination of practice.
                                            6
                                                          No.    2012AP931-D & 2014AP2086-D



The referee said Attorney Voss provided no such notification to

any of the required persons or entities, nor did he attempt to

gain    the        circuit       court's          approval       for     withdrawal       and

substitution of counsel with respect to his criminal clients.

The referee noted that at the evidentiary hearing, Attorney Voss

said   there       had    been      an    article      about    his    suspension   in    the

Rhinelander newspaper.               The referee said Attorney Voss seemed to

consider the newspaper article substitute notice sufficient to

meet the requirements of SCR 22.26.

       ¶13    In    addition         to     the       failure    to    comply   with      the

requirements of SCR 22.26, the referee also found that Attorney

Voss still lacks an understanding of the need for a proper and

approved system of managing client funds.                              The referee noted

that as early as 2005 or even sooner, Attorney Voss began having

major problems with the handling of trust accounts, and those

problems     continued         up    to    the    time    of    his    suspension.        The

referee said according to the records of the two cases that led

to his suspensions, and from what Attorney Voss testified to at
the    evidentiary         hearing,        it     appeared      to     the   referee     that

Attorney     Voss        has   learned      very      little    since    2005   about     the

correct handling of client funds through the use of a properly

created trust account, in spite of having taken classes on such

accounts.      The referee said there was nothing to suggest that if

Attorney Voss were reinstated to the practice of law, he would

be any more successful in keeping his accounts straight.                                  The

referee said, "in fact, it was unclear, at the hearing, whether


                                                  7
                                             No.    2012AP931-D & 2014AP2086-D



Voss even understood the basic accounting and ethical principles

behind maintaining a trust account . . .."

    ¶14   The referee concluded that Attorney Voss's failure to

fulfill the requirements of SCR 22.26 made him ineligible for

reinstatement.      The    referee   also   said   because    Attorney      Voss

still lacked an understanding about the approved handling of

trust accounts, in the event he were to be reinstated, constant

monitoring of his handling of client funds would probably be

required to prevent further ethical violations.

    ¶15   The referee concluded by saying:

    In making this recommendation, I am aware that Voss
    cannot   go  back   and  correct   his  violations  of
    SCR 22.26. That time has passed and Voss's failure to
    perform his obligations in 2014 may be a permanent bar
    to his reinstatement.   Therefore, Voss cannot "safely
    be recommended to the legal profession, the courts and
    the public as a person fit to be consulted by others
    and to represent them and otherwise act in matters of
    trust and confidence and in general to aid in the
    administration of justice as a member of the bar and
    as an officer of the court." SCR 22.29(4)(g).
    ¶16   Attorney    Voss     has   appealed,      arguing    that    it    is
appropriate   for   this    court    to   grant    his   petition     for   the

reinstatement of his license to practice law in Wisconsin.

    ¶17   Attorney Voss concedes that he did not comply with the

letter of SCR 22.26.        However, he says all of the bankruptcy

clients received a certified letter noting the date of the end

of his services and their right to obtain other legal counsel.

He admits that the letter did not inform the bankruptcy clients

that his license to practice law was being suspended.                 Attorney
Voss says the clients who were represented through the Wisconsin

                                      8
                                               No.   2012AP931-D & 2014AP2086-D



State Public Defender program were all given oral notice by

Attorney Voss and their cases were promptly returned to the

State Public Defender.

    ¶18     Attorney    Voss    says   while   the   referee     and   the   OLR

believe that Attorney Voss intentionally omitted explaining to

his clients that the reason he was ceasing the practice of law

was due to suspension:

    [T]hat does not change the fact that the suspension
    which went in to effect began so soon after the
    letters were sent that he could not in any way profit
    by omitting the words since they could not remain his
    clients after the suspension date and there is no
    evidence that anyone continued to be his client after
    that date.
Attorney Voss again notes that the top headline of the local

newspaper   indicated    that    he    was   being   suspended    so   "it   can

hardly be argued that failure to include those words would be

advantageous to him.      The more likely conclusion is that it was

an oversight."

    ¶19     With respect to the referee's criticism of Attorney

Voss's trust account practices, Attorney Voss says that none of

his clients lost any money and all of his legal work was done in

a manner that did not result in any dissatisfied clients.                     He

says, "while the procedures were at times inappropriate, the

results were not harmful to the clients."              He also says if he

were reinstated, "by starting out with a new balanced trust

account which will be approved by the Wisconsin State Bar before

any funds are placed in it, the problems of the past should not
be repeated."


                                       9
                                                               No.       2012AP931-D & 2014AP2086-D



      ¶20    The OLR argues that the referee properly found that

Attorney Voss did not meet his burden for the reinstatement of

his   Wisconsin        law     license.             The    OLR       says       that    although      an

attorney's failure to strictly comply with SCR 22.26 may not

per se    bar      reinstatement,             what        is    most       disconcerting         about

Attorney Voss's failure to fully comply with the rule is his

failure     to    comprehend            the   necessity         of        following      the   rule's

requirements.          The OLR argues that Attorney Voss's testimony at

the    evidentiary            hearing          displayed             a     complete        lack       of

understanding          as    to    what       his    ethical         obligations         are     as   an

attorney.          The       OLR     says      although         technical          violations         of

SCR 22.26        may    not       bar    reinstatement,              it    is    Attorney      Voss's

complete lack of understanding of his ethical obligations as it

relates     to    his       post-discipline              requirements           that     supports      a

denial of his petition for reinstatement.                                  The OLR argues that

Attorney Voss's testimony at the hearing demonstrates that his

apparent belief is that the rules are merely advisory and do not

have to be followed in situations where Attorney Voss feels it
is unnecessary to do so.

      ¶21    The       OLR    also      argues       that      the       referee       appropriately

concluded that Attorney Voss failed to demonstrate that he has a

proper understanding of and attitude toward the standards that

are imposed upon members of the bar and will act in conformity

with those standards.                   The OLR says that at the time Attorney

Voss learned of his suspension in July of 2014, he had some

$12,000     in    his       trust       account      and       he    did     not   know     to    whom
specifically those funds belonged.                             The OLR says Attorney Voss
                                                    10
                                            No.   2012AP931-D & 2014AP2086-D



never sat down and accurately figured out to whom all the money

in the trust account belonged.          The OLR says by September of

2014, Attorney Voss had $260 remaining in his trust account and

despite   keeping   inaccurate   records,    he   simply   assumed   those

funds belonged to him because none of his clients had asked for

any money to be refunded.    The OLR says Attorney Voss's position

that no money belonged to his clients because none of them had

asked for money exemplifies his ignorance of the rules and what

is ethically required of him as an attorney.

    ¶22    In his reply brief, Attorney Voss reiterates that he

believes that he has demonstrated that he is entitled to the

reinstatement of his Wisconsin law license.        He says:

    During the period of his practice, from 1976 through
    2014, Voss did comply with all of the rules of the
    Supreme Court except those rules which he has been
    found to have violated.     When he was sanctioned he
    took steps to correct his behavior . . ..
    ¶23    This court will affirm a referee's findings of fact

unless they are found to be clearly erroneous.             Conclusions of

law are reviewed de novo.        See In re Disciplinary Proceedings

Against Davison, 2010 WI 1, ¶19, 322 Wis. 2d 67, 777 N.W.2d 82.

    ¶24    Supreme Court Rule 22.29(4) provides that a petition

for reinstatement shall show all of the following:

    (a) The petitioner desires to have the petitioner's
    license reinstated.

    (b) The petitioner has not practiced law during the
    period of suspension or revocation.

    (c) The petitioner has complied fully with the terms
    of the order of suspension or revocation and will


                                   11
                                     No.   2012AP931-D & 2014AP2086-D


    continue to comply with them until the petitioner's
    license is reinstated.

    (d) The petitioner has maintained competence and
    learning in the law by attendance at identified
    educational activities.

    (e) The petitioner's conduct since the suspension or
    revocation has been exemplary and above reproach.

    (f) The petitioner has a proper understanding of and
    attitude toward the standards that are imposed upon
    members of the bar and will act in conformity with the
    standards.

    (g) The petitioner can safely be recommended to the
    legal profession, the courts and the public as a
    person fit to be consulted by others and to represent
    them and otherwise act in matters of trust and
    confidence and in general to aid in the administration
    of justice as a member of the bar and as an officer of
    the courts.

    (h) The petitioner has fully complied          with    the
    requirements set for in SCR 22.26.

    (j) The petitioner's proposed use of the license if
    reinstated.

    (k) A full description of all of the petitioner's
    business activities during the period of suspension or
    revocation.
    ¶25   Supreme Court Rule 22.31(1) provides that an attorney

seeking reinstatement of his or her license has the burden of

demonstrating all of these requirements by clear, satisfactory,

and convincing evidence.   We adopt the referee's findings and

conclusions and agree that Attorney Voss has failed to meet his

burden of demonstrating by clear, satisfactory, and convincing

evidence that he fully complied with all of the terms of the

order of suspension.   We also agree with the referee that, at
the present time, Attorney Voss cannot safely be recommended to

                              12
                                                     No.   2012AP931-D & 2014AP2086-D



the legal profession, the courts, and the public as a person fit

to be consulted by others and to represent them and otherwise

act in matters of trust and confidence and in general to aid in

the administration of justice as a member of the bar and as an

officer of the court.

      ¶26    Supreme Court Rule 22.26(1)(a) plainly provides that

an attorney whose license is suspended shall notify all clients

being        represented          in      pending          matters       "of          the

suspension . . . and of the attorney's consequent inability to

act     as   an    attorney      following     the     effective     date      of    the

suspension . . .."            Supreme     Court       Rule 22.26(1)(c)         plainly

provides     that    an   attorney     whose    license      is   suspended         shall

"promptly provide written notification to the court . . . and

the   attorney      for   each    party   in    a     matter   pending      before      a

court . . . and of the attorney's consequent inability to act as

an      attorney      following        the      effective         date      of        the

suspension . . .."         By his own admission, Attorney Voss failed

to comply with these rules.               However, in the "Winding up of
Practice Richard W. Voss" document dated September 25, 2014,

Attorney Voss averred that all clients with pending matters in

which he was the attorney of record had been advised of his

inability to continue to represent them after the effective date

of the suspension.         Thus, it appears that not only did Attorney

Voss fail to comply with the notice requirements of SCR 22.26,

he then untruthfully certified to the OLR that he had fully

complied.


                                          13
                                                      No.    2012AP931-D & 2014AP2086-D



      ¶27    An   attorney      seeking       reinstatement          of   his   or     her

license must demonstrate by clear, satisfactory, and convincing

evidence     that      he    has     met   all    of        the   requirements        for

reinstatement.         It is clear that Attorney Voss failed to do so.

As the referee pointed out, Attorney Voss cannot go back and

correct his failure to comply with SCR 22.26.                        Although we are

not suggesting that his failure to comply with that rule should

serve as a permanent bar to his reinstatement, on the record

before us we agree with the referee that his failure to comply

with SCR 22.26, coupled with his rather cavalier attitude that

strict compliance was perhaps not all that important, leads to

the conclusion that at the present time he has not met his

burden of demonstrating that his license to practice law should

be   reinstated.        We   also     share     the    referee's      concerns       about

whether     Attorney     Voss      understands    the       proper    handling       of   a

client trust account, although he could potentially correct that

deficiency in the future by attending continuing legal education

programs regarding trust accounts.
      ¶28    As is our general practice, we find it appropriate to

impose the full costs of this proceeding, $4,034.75 on Attorney

Voss.

      ¶29    IT   IS    ORDERED     that   Richard      W.    Voss's      Petition    for

Reinstatement of his license to practice law in Wisconsin is

denied.

      ¶30    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 reinstatement proceeding.
                                           14
    No.   2012AP931-D & 2014AP2086-D




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