                                                            2013 WI 101

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2011AP1820-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against John Miller Carroll, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       John Miller Carroll,
                                 Respondent.



                           DISCIPLINARY PROCEEDINGS AGAINST CARROLL

OPINION FILED:         December 19, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:

ATTORNEYS:
                                                                             2013 WI 101
                                                                      NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2011AP1820-D


STATE OF WISCONSIN                                :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John Miller Carroll, Attorney at Law:

Office of Lawyer Regulation,                                               FILED
              Complainant,
                                                                      DEC 19, 2013
      v.
                                                                         Diane M. Fremgen
                                                                      Clerk of Supreme Court
John Miller Carroll,

              Respondent.




      ATTORNEY       disciplinary        proceeding.         Attorney's           license

suspended.



      ¶1      PER   CURIAM.       We   review    the     report        filed      by    the

referee,     Richard     P.   Mozinski,      recommending       the      court    suspend

Attorney     John    Miller     Carroll's      license     to      practice       law     in

Wisconsin     for   five      months   for    seven    counts       of     professional

misconduct.         No   appeal    has    been    filed,      so      we    review      the

referee's report and recommendation pursuant to SCR 22.17(2).1



      1
          SCR 22.17(2) states as follows:
                                                            No.    2011AP1820-D



Upon   careful   review   of   the   matter,   we   adopt    the    referee's

findings of fact and conclusions of law.              We agree with the

referee that Attorney Carroll's professional misconduct warrants

a five-month suspension of his license to practice law.               We also

find it appropriate to require him to pay the full costs of this

proceeding, which were $27,438.26 as of May 13, 2013.

       ¶2    Attorney Carroll was admitted to the practice of law

in Wisconsin in 1987 and practices in Appleton.                   In 1992 he

received a private reprimand for failing to hold funds in trust

in which both he and his former law firm claimed an interest.

In 1997 he received a private reprimand for performing work for

a   client     after   his     services   were      terminated      and    for

misrepresenting that he had filed a motion on behalf of the

client.     In 1999 he received a public reprimand for neglect of a

matter, failing to communicate with a client, and failing to

return a retainer.

       ¶3    In 2002 Attorney Carroll's license was suspended for

one year for eight counts of professional misconduct, four of
which related to trust account and fee matters, and the other

four involving failure to diligently pursue a client's claim,

failure to keep a client reasonably informed about the status of



            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.

                                     2
                                                                    No.    2011AP1820-D



a matter, failure to disclose to and cooperate with the Board of

Attorneys Professional Responsibility (the predecessor to the

Office   of    Lawyer      Regulation    (OLR)),       and     engaging    in    conduct

involving dishonesty, fraud, deceit, and misrepresentation.                           In

re Disciplinary Proceedings Against Carroll, 2001 WI 130, 248

Wis. 2d 662, 636 N.W.2d 718.             While suspended, Attorney Carroll

consented      to    the   issuance     of       a   public    reprimand    for    pre-

suspension conduct involving loaning funds to a personal injury

client in conjunction with pending litigation.

    ¶4        On August 9, 2011, the OLR filed a complaint against

Attorney Carroll alleging ten counts of misconduct arising out

of his handling of two client matters.                    Attorney Carroll filed

an answer on September 26, 2011.                  He admitted the allegations in

Count    Two    of    the     OLR's     complaint        and    denied     all    other

allegations.

    ¶5        The first four counts in the complaint arose out of

Attorney Carroll's representation of T.R.                      In January 2007 T.R.

was charged in two separate criminal cases.                      In one case, T.R.
was charged with operating while intoxicated—fourth offense and

operating after revocation.             In the other case, he was charged

with two counts of disorderly conduct.                         T.R. hired Attorney

Carroll to represent him in both cases and paid Attorney Carroll

$2,500 pursuant to a written fee agreement.

    ¶6        During pretrial proceedings Attorney Carroll made a

timely demand for discovery.                     The discovery provided by the

State did not include a tape of a 911 call made by a witness.


                                             3
                                                                             No.    2011AP1820-D



       ¶7     The two cases were tried at the same time to the same

jury but were not formally consolidated.                               During the trial,

Attorney      Carroll    learned       that       a    911    tape     might       exist.      He

discussed with T.R. whether a tape of the 911 call should be

obtained.       He did not request a continuance of the trial and

advised T.R. to proceed with the trial, saying that if the 911

tape   was     obtained       after    trial          and    proved    exculpatory,          then

Attorney Carroll would file a motion for a new trial based on

the prosecutor's failure to produce the tape.                                T.R. agreed to

proceed with the trial based on Attorney Carroll's advice.                                    The

jury found T.R. guilty on all counts on April 10, 2007.

       ¶8     On or before May 14, 2007, Attorney Carroll received

the 911 tape and gave it to T.R. to review.                                   T.R. promptly

called Attorney Carroll and advised that the 911 tape showed

that   a     witness    had    lied    at   trial.            During     the       phone    call,

Attorney      Carroll     advised       T.R.          that    he    would      postpone       the

sentencing, obtain the transcripts from the trial and, if the

911 tape proved exculpatory, he could then file a motion for a
new trial.       The sentencing was postponed at Attorney Carroll's

request.

       ¶9     The day before the scheduled sentencing, a telephone

conference took place between Attorney Carroll and T.R. during

which they discussed whether Attorney Carroll had yet received

the trial transcripts.                Upon being informed he had not, T.R.

inquired      whether     the    sentencing            should       again     be    postponed.

Attorney Carroll advised T.R. to proceed with the sentencing and
said    if    the      transcription        of        the     911     tape     later       proved
                                              4
                                                                       No.        2011AP1820-D



exculpatory, Attorney Carroll would then represent T.R. in an

appeal of the convictions rather than filing a motion for a new

trial.

      ¶10     The following day T.R. was sentenced in both cases.

At the same time, Attorney Carroll filed a notice of intent to

pursue postconviction relief in the OWI case but not in the

disorderly conduct case.

      ¶11     On July 9, 2007, Attorney Carroll filed a notice of

intent to pursue postconviction relief in the disorderly conduct

case.       The appeal was untimely; however, the court of appeals

extended     the   time    to    file    a   notice        of    intent.      After       T.R.

terminated Attorney Carroll's representation, successor counsel

represented T.R. in both appeals.

      ¶12     Sometime     prior    to    sentencing,           Attorney     Carroll      and

T.R. had discussed whether T.R. should obtain successor counsel

for   his    appeals.       Attorney      Carroll      advised       T.R.    he     did   not

believe     that   T.R.    had     any   ineffective            assistance    of     counsel

claims stemming from Attorney Carroll's representation of him at
trial, and as a result, Attorney Carroll could represent T.R. in

the appeal of the convictions.               Based on Attorney Carroll's dual

representations,         T.R.    agreed      to   be       represented       by     Attorney

Carroll on appeal.

      ¶13     Despite a potential conflict based on T.R.'s reliance

on Attorney Carroll's advice and Attorney Carroll's opinion that

T.R. had no ineffective assistance of counsel claims, Attorney

Carroll      did   not    obtain    from     T.R.      a    written    waiver        of   any
conflict of interest that might exist due to Attorney Carroll's
                                             5
                                                                             No.    2011AP1820-D



trial    and    appellate        representation           of    T.R.    on     the    appeals.

Attorney       Carroll    entered       into        a    written      fee     agreement     for

representation in the appeals.

     ¶14       Between the time Attorney Carroll filed the notice of

intent to appeal in the OWI case and the time he filed the

notice of intent in the disorderly conduct case, he filed a

proposed order for a stay pending appeal in both cases even

though the cases were never consolidated and no timely notice of

intent   had     been     filed    in    the       disorderly      conduct         case.    The

circuit court granted the motion to stay the sentence in the OWI

case,    but    denied     the    motion       in       the   disorderly       conduct      case

because no notice of intent had been filed.

     ¶15       Attorney    Carroll       scheduled            another       hearing    in   the

disorderly conduct case, purportedly to reargue the motion to

stay the sentence.           He did not, however, file a new motion to

stay the sentence or a written motion for a rehearing of the

motion to stay.           The circuit court ruled there was no motion

before the court seeking a stay of sentence in the disorderly
conduct case because the first motion had been denied and no new

motion for a stay had been filed.

     ¶16       On August 17, 2007, T.R. terminated Attorney Carroll's

representation          because     he       was        dissatisfied         with     Attorney

Carroll's performance, particularly the failure to timely file

the notice of intent to seek postconviction relief and failure

to   effectively         argue    for    a     stay       of    the     sentence       in   the

disorderly conduct case.


                                               6
                                                   No.   2011AP1820-D



    ¶17    The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Carroll's representation of

T.R.:

         [COUNT ONE] By failing to timely file a Notice
    of Intent to Pursue Post-Conviction Relief on behalf
    of [T.R.] in [his disorderly conduct case], [Attorney]
    Carroll violated SCR 20:1.3.2

         [COUNT  TWO] By    failing  to   obtain  [T.R.'s]
    written waiver of any conflicts of interest that might
    exist due to [Attorney] Carroll's representation of
    [T.R.] in the appeal of [his cases], [Attorney]
    Carroll violated former SCR 20:1.7(b),3 in effect
    through June 30, 2007, and SCR 20:1.7(a)(2)4 and
    2
       SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
    3
       Former SCR 20:1.7(b) (effective through June 30, 2007)
provided, in pertinent part, as follows:

         A lawyer shall not represent a client if the
    representation of that client may be materially
    limited by the lawyer's responsibilities to another
    client or to a third person, or by the lawyer's own
    interests, unless:

         (1) the    lawyer    reasonably    believes       the
    representation will not be adversely affected; and

         (2) the     client   consents   in   writing    after
    consultation.     . . . .
    4
        SCR 20:1.7(a)(2) states as follows:

         Except as provided in par. (b), a lawyer shall
    not represent a client if the representation involves
    a concurrent conflict of interest.      A concurrent
    conflict of interest exists if: . . .

         (2) there   is  a   significant  risk  that   the
    representation of one or more clients will be
    materially limited by the lawyer's responsibilities to
    another client, a former client or a third person or
    by a personal interest of the lawyer.

                                 7
                                                 No.   2011AP1820-D


    SCR 20:1.7(b)(1) and (4),5 in effect as of July 1,
    2007.

         [COUNT THREE] By stating in his August 27, 2007
    letter to [T.R.] that "Notice of Intent for Post-
    Conviction Relief was filed on June 26, 2007, with
    both matters on the caption, as both matters were
    consolidated for trial . . . ," when no Notice of
    Intent was filed by [Attorney] Carroll on June 26,
    2007 and when two Notices of Intent filed by
    [Attorney] Carroll were filed on June 14, 2007 and
    July 11, 2007, and each related only to, and referred
    only to, one of the two cases, [Attorney] Carroll
    violated SCR 20:8.4(c).6

          [COUNT FOUR] By misrepresenting to OLR that "I
    want to make it clear that once I determined that
    there was no basis for the Motion for a New Trial, I
    advised [T.R.] to seek other counsel, which he did.
    Therefore, I did not think it was necessary to
    actually have a written waiver.   This occurred prior
    to filing the Notice of Appeals with the Court of
    Appeals, to the best of my recollection . . . ," when
    [T.R.] hired [Attorney] Carroll to represent him on
    his appeal after [Attorney] Carroll's advice that
    [T.R.] might want to seek other counsel until [T.R.]
    later    terminated [Attorney]   Carroll's  appellate
    representation due to dissatisfaction with [Attorney]

    5
        SCRs 20:1.7(b)(1) and (4) provide:

         Notwithstanding the existence of a concurrent
    conflict of interest under par. (a), a lawyer may
    represent a client if:

         (1) the lawyer reasonably believes that the
    lawyer will be able to provide competent and diligent
    representation to each affected client;

           . . .

         (4) each affected client gives informed consent,
    confirmed in a writing signed by the client.
    6
       SCR 20:8.4(c) says it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."

                                 8
                                                                            No.     2011AP1820-D


      Carroll and to seek successor counsel, [Attorney]
      Carroll violated SCR 22.03(6)7 via SCR 20:8.4(h).8
      ¶18       The        other     client     matter       detailed       in     the     OLR's

complaint involves Attorney Carroll's representation of J.H.                                 In

early July 2007, J.H. hired Attorney Carroll to represent him in

a   case    in       the    United    States        District     Court    for     the    Eastern

District        of    Wisconsin,       in     which      J.H.    had    been     charged    with

conspiracy           to     distribute        and        possession       with     intent     to

distribute           methamphetamine.               J.H.    paid       Attorney    Carroll     a

$10,000      retainer         fee     for     the       representation.           J.H.    denied

signing     a    written       fee     agreement.           Although      Attorney       Carroll

claimed there was a signed fee agreement, he could not produce

it.

      ¶19       J.H.'s trial was scheduled for August 20, 2007, but

the proceeding was converted to a plea hearing.                                Prior to that

date Attorney Carroll received a proposed plea agreement from

the federal prosecutor.                 J.H. denied seeing the plea agreement

or reviewing its terms with Attorney Carroll at any time before

being      asked      to     sign    it.       Attorney         Carroll    disputed      J.H.'s
testimony.

      7
       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."
      8
       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); . . . ."

                                                    9
                                                                          No.   2011AP1820-D



       ¶20   J.H.    said      that    prior       to    August     20,   2007,    Attorney

Carroll did not (1) hire an investigator to work on the case,

(2) discuss with J.H. whether he would testify at trial, (3)

prepare J.H. to testify, or (4) review the consequences of the

federal sentencing guidelines regarding false testimony and the

range of penalties.              Attorney Carroll admitted not hiring an

investigator, but disputed that he had not interviewed potential

witnesses and denied not discussing whether J.H. should testify

at trial.     Attorney Carroll said he also had discussed with J.H.

the potential sentencing consequences of a conviction.

       ¶21   Attorney Carroll said that prior to August 20, 2007,

he was aware that J.H. was concerned that a criminal conviction

could result in the loss of his commercial driver's license

(CDL).       J.H. testified at a November 2007 motion hearing to

withdraw his plea that he was told he would not lose his CDL as

the result of the plea agreement.                            At the hearing before the

referee, J.H. testified that Attorney Carroll did not represent

this to him prior to signing the plea agreement, and that he
learned      about       the   consequences             of     a   controlled     substance

conviction     on    his       CDL    after    being          incarcerated.        Attorney

Carroll said that as of the date J.H. entered the plea, he knew

a felony conviction would impact J.H.'s CDL status and the plea

agreement was modified to attempt to positively impact the CDL

reinstatement process.

       ¶22   On August 20, 2007, on Attorney Carroll's advice, J.H.

pled     guilty     to    a    one-count       information           charging     him   with
possession with intent to deliver methamphetamine.                              As part of
                                              10
                                                                         No.     2011AP1820-D



the plea, J.H. gave a "proffer" statement to federal authorities

regarding his knowledge of criminal activities.                                The federal

prosecutor handling the case testified at the hearing before the

referee      that     he   had     no       specific    recollection           whether    any

sentencing         enhancement        was    sought     against     J.H.        related     to

purportedly untrue statements made by J.H. during the proffer.

       ¶23    J.H. testified at the hearing before the referee that

in mid- to late-October 2007 he met with a supervisor at the

U.S. probation office and this was the first time he was told he

had    pled    guilty      to     a     controlled      substance        violation        that

involved selling drugs out of his home.                       J.H. also testified at

the    hearing      before      the     referee      that    he   had    an     unclear     or

confused understanding whether he had pled to a felony or a

misdemeanor because he had been focused on the penalty for the

conviction being probation.

       ¶24    After    the      meeting      with    the     probation    officer,        J.H.

said   he     contacted      Attorney        Carroll    because     he    was     concerned

about the statement in the plea agreement that he sold drugs out
of his home.          In late October 2007, Attorney Carroll filed a

motion to withdraw J.H.'s plea.                    In a supporting brief, Attorney

Carroll asserted, "It should be noted that [J.H.] was informed

by the United States attorney that the language of the plea

agreement, stating that the offense occurred in the home, would

assure      that    the    conviction        would     not    affect     his     commercial

driver's license."              No such assurances were ever made by the

U.S. attorney.


                                              11
                                                                    No.    2011AP1820-D



      ¶25       Sentencing in the case was set for November 13, 2007,

but the court scheduled a hearing for the same date on J.H.'s

motion     to    withdraw    his    plea.        Prior    to    November    13,   2007,

Attorney Carroll failed to obtain a written waiver of conflicts

of interest as related to his representation of J.H. with regard

to   the    plea    agreement       and   the    events    of    August    20,    2007.

Attorney Carroll admitted at the November 13 hearing that there

could be a conflict of interest between him and his client in

connection with his representation of J.H. on the motion to

withdraw J.H.'s guilty plea.

      ¶26       Prior to November 13, 2007, Attorney Carroll prepared

an   affidavit      for     the    signature     of   government        witness   P.E.,

essentially recanting statements P.E. had made to a DEA agent

investigating       J.H.      Attorney      Carroll      faxed    the    affidavit   to

J.H.'s wife and directed J.H. to find P.E. and get him to sign

the affidavit.

      ¶27       J.H.'s trial was rescheduled for December 17, 2007.

J.H. testified at the hearing before the referee that between
November 13, 2007, and December 17, 2007, Attorney Carroll did

not discuss J.H.'s trial testimony, assist in preparing him to

testify, or discuss the consequences of false trial testimony.

The OLR offered no proof to corroborate J.H.'s testimony.

      ¶28       The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Carroll's representation of

J.H.:

           [COUNT FIVE] By advising [J.H.] prior to or on
      November 13, 2007 to personally obtain the signature

                                            12
                                                   No.   2011AP1820-D


    of [a government witness] on an affidavit, [Attorney]
    Carroll violated SCR 20:1.1.9

         [COUNT SIX] By (i) prior to August 20, 2007,
    failing to adequately discuss the offered plea
    agreement with [J.H.]; (ii) on August 20, 2007,
    failing to adequately and accurately advise [J.H.] of
    the implications of the plea agreement prior to
    signature; (iii) failing to adequately discuss with
    [J.H.] whether [J.H.] should testify at trial; (iv)
    failing to advise [J.H.] of possible civil forfeiture
    implications of stating in the plea agreement that
    [J.H.] had sold narcotics from his home; (v) failing
    to adequately explain to [J.H.] the federal sentencing
    guidelines;    and   (vi)  failing    to   advise   [J.H.]
    regarding the sentence enhancements that would result
    if he was found to have given materially false
    testimony   at    trial,  [Attorney]    Carroll   violated
                 10                    11
    SCR 20:1.2(a) and SCR 20:1.4(b).



    9
       SCR 20:1.1 states, "A lawyer shall provide competent
representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
    10
         SCR 20:1.2(a) provides as follows:

          Subject to pars. (c) and (d), a lawyer shall
    abide    by   a  client's   decisions   concerning   the
    objectives of representation and, as required by SCR
    20:1.4, shall consult with the client as to the means
    by which they are to be pursued.      A lawyer may take
    such action on behalf of the client as is impliedly
    authorized to carry out the representation.     A lawyer
    shall abide by a client's decision whether to settle a
    matter.     In a criminal case or any proceeding that
    could result in deprivation of liberty, the lawyer
    shall    abide   by   the  client's    decision,   after
    consultation with the lawyer, as to a plea to be
    entered, whether to waive jury trial and whether the
    client will testify.
    11
       SCR 20:1.4(b) states, "A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."

                                 13
                                                 No.   2011AP1820-D


         [COUNT SEVEN] By (i) failing to sufficiently
    research the implications of possible convictions on
    [J.H.'s] CDL prior to August 20, 2007; and (ii)
    failing to adequately prepare [Mr. and Mrs. J.H.] to
    testify, [Attorney] Carroll violated SCR 20:1.3.

         [COUNT EIGHT] By representing [J.H.] on the
    Motion to Withdraw his plea when the Motion could be
    based, at least in part, on [Attorney] Carroll's acts
    and omissions with regard to the plea, and failing to
    obtain [J.H.'s] written waiver of those potential
    conflicts, [Attorney] Carroll violated SCR 20:1.7(a).12

         [COUNT NINE] By stating in the Defendant's Brief
    in Support of Motion to Withdraw Guilty Plea that "it
    should be noted that [J.H.] was informed by the United
    States Attorney that the language of the plea
    agreement, stating that the offense occurred in the
    home, would assure that the conviction would not
    affect his commercial driver's license . . . ," when
    [Attorney] Carroll knew that no such assurances had
    been     made,      [Attorney]    Carroll     violated
    SCR 20:3.3(a)(1).13

         [COUNT TEN] By advising [J.H.] on August 20,
    2007 that the government had made assurances regarding

    12
         SCR 20:1.7(a) states:

         Except as provided in par. (b), a lawyer shall
    not represent a client if the representation involves
    a concurrent conflict of interest. A concurrent
    conflict of interest exists if:

         (1) the representation of one client      will   be
    directly adverse to another client; or

         (2) there   is  a   significant  risk   that  the
    representation of one or more clients will be
    materially limited by the lawyer's responsibilities to
    another client, a former client or a third person or
    by a personal interest of the lawyer.
    13
       SCR 20:3.3(a)(1) states that a lawyer shall not knowingly
"make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer; . . . ."

                                 14
                                                                No.     2011AP1820-D


       [J.H.'s]    CDL,          [Attorney]          Carroll      violated
       SCR 20:8.4(c).
       ¶29    The hearing before the referee was held in Manitowoc,

Wisconsin, on October 23, 24, and 25, 2012.                The referee filed

his report and recommendation on April 22, 2013.                      The referee

said    the    testimony    of   both    T.R.   and     J.H.    raised      serious

credibility issues as to various factual matters alleged in the

OLR's    complaint.        The   referee      said    J.H.'s     testimony,      in

particular, was problematic as to the facts supporting Counts

Six,    Seven,    and     Ten,   because     his     testimony        was   largely

uncorroborated by other evidence of record.                    The referee said

although T.R.'s testimony was also suspect at points, there was

sufficient corroborating evidence in the record for the OLR to

meet its burden of proof as to the counts involving T.R.

       ¶30    The referee said Attorney Carroll's testimony was at

times credible and at other times less so, but when compared

head-to-head with J.H.'s testimony, the referee generally found

Attorney Carroll's testimony more persuasive in the absence of

other evidence.         The referee found that the OLR met its burden
of proof as to all counts related to T.R.

       ¶31    The referee found that OLR failed to meet its burden

of proof as to Counts Six, Seven, and Ten.                     With respect to

Counts Six and Seven (failure to inform and advise and failure

to act with reasonable diligence), the referee said the OLR's

inability to meet its burden of proof was directly related to

J.H.'s lack of credibility on crucial facts not supported by
corroborating evidence.


                                        15
                                                                        No.      2011AP1820-D



      ¶32    With respect to Count Ten, the referee noted the OLR

predicated that count upon the allegation that Attorney Carroll

had advised J.H. that the government made assurances regarding

J.H.'s CDL.         The referee said that "the disciplinary hearing

testimony went in another direction."                          The referee found that

the   evidence           of     record      failed        to      establish         such     a

misrepresentation occurred.

      ¶33    Turning       to     the    appropriate      sanction,     the      OLR     noted

that Attorney Carroll has a significant disciplinary history, a

pattern of misconduct in the current case that is similar to

that present in his prior disciplinary cases, multiple counts of

misconduct in the current case, a general refusal to acknowledge

the   wrongful           nature     of     his    misconduct,         and       substantial

experience     in    the      practice      of    law    at    the   time     the   current

offenses were committed.                  The referee found no dishonest or

selfish     motive        and      also    noted        that     neither        victim     was

particularly        vulnerable.            The    referee       found    no      mitigating

factors     with    the       exception     of    the    remoteness        of    his     prior
disciplinary cases.

      ¶34    The OLR had sought a six-month suspension of Attorney

Carroll's license.            Attorney Carroll advocated for no suspension

or a suspension not exceeding 30 days.                         The referee said given

the   number        of     violations        proven       and     Attorney        Carroll's

disciplinary history, the sanction suggested by Attorney Carroll

was inappropriate and unduly lenient.                           The referee concluded

that a five-month suspension was appropriate.                         In reaching this
conclusion, the referee noted that the OLR failed to meet its
                                             16
                                                                       No.     2011AP1820-D



burden of proof as to three of the ten counts alleged in its

complaint.       The referee found no proof of actual harm resulting

from Attorney Carroll's misconduct.                The referee noted that both

T.R. and J.H. were convicted after trials.                       T.R.'s convictions

were appealed.          Although Attorney Carroll failed to properly

initiate the appeal process in one case, failed to obtain a

written conflict waiver, and misrepresented certain information

to    T.R.,    the    referee   pointed    out    that    the    court        of   appeals

allowed both appeals to go forward.                 Thus, the referee reasoned

Attorney Carroll's misconduct caused the potential for harm to

T.R. in the appellate process as opposed to actual harm.

       ¶35     The referee noted that J.H. initially entered a plea,

then    successfully      withdrew     the      plea,    then    was     convicted       at

trial.        While the OLR argued that J.H. might have received a

lesser sentence if the matter had been handled properly, the

referee noted the assistant U.S. attorney who handled the case

could not definitively say that J.H. received a harsher sentence

due to the decision to proceed to trial.
       ¶36     The referee also noted a significant period of time

had     elapsed       since     Attorney        Carroll's       last         disciplinary

violation.

       ¶37     In addition to recommending a five-month suspension,

the referee recommended that Attorney Carroll be required to

file    with    the    court    a   written     statement       that    he     has   read,

understands, and agrees to be bound by and obey the court's

rules    concerning      professional       conduct      for    attorneys          and   the
rules governing disciplinary proceedings.                   The referee noted the
                                           17
                                                                       No.     2011AP1820-D



OLR did not seek restitution.                     The referee deferred to this

court on the issue of an appropriate award of costs.

       ¶38     This court will affirm a referee's findings of fact

unless       they    are    clearly    erroneous.        Conclusions         of   law     are

reviewed de novo.             In re Disciplinary Proceedings Against Tully,

2005 WI 100, ¶25, 283 Wis. 2d 124, 699 N.W.2d 882.                            This court

is    free    to     impose    whatever      discipline    it    deems       appropriate,

regardless of the referee's recommendation.                      In re Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660

N.W.2d 686.

       ¶39     We adopt the referee's findings of fact because they

have not been shown to be clearly erroneous, and we also agree

with     the        referee's     conclusions       of    law.         After       careful

consideration         of    all   of   the    circumstances      of    this       case,    we

further agree with the referee that a five-month suspension of

Attorney Carroll's license to practice law is an appropriate

sanction.

       ¶40     In In re Disciplinary Proceedings Against Boyd, 2009
WI 59, 318 Wis. 2d 281, 767 N.W.2d 226, an attorney who was

found to have engaged in 13 counts of misconduct arising out of

five separate client matters, received a six-month suspension.

The    misconduct          included    failing     to    act    with    diligence         and

promptness in representing a client, failing to keep a client

informed about the status of a matter, failing to refund a fee

that was not earned, failing to hold property in trust, failing

to cooperate with the OLR's investigation, and engaging in acts
that resulted in a criminal conviction for disorderly conduct.
                                             18
                                                                   No.     2011AP1820-D



Attorney Boyd had been licensed to practice law for 20 years and

had been professionally disciplined on three prior occasions.

      ¶41    In   In re Disciplinary Proceedings Against Hartigan,

2005 WI 3, 277 Wis. 2d 341, 690 N.W.2d 831, an attorney who was

found to have engaged in six counts of misconduct involving two

separate client matters received a six-month suspension.                           The

misconduct included engaging in conduct involving dishonesty,

fraud, deceit or misrepresentation; failing, upon termination of

representation,       to      take    steps    to     the     extent       reasonably

practicable, to protect a client's interests; knowingly making a

false statement of fact or law to a tribunal; failing to keep a

client reasonably informed about the status of a matter; and

failing     to    cooperate    with   the     OLR's    investigation.        Attorney

Hartigan had been practicing law for 15 years and had no prior

disciplinary history.

      ¶42    Since no two cases are precisely analogous, there is

no "standard" sanction for particular misconduct.                    Nevertheless,

the     sanctions    imposed     in    prior    cases        are   instructive      in
fashioning an appropriate remedy for the case at hand.                       Attorney

Carroll has been practicing law for 25 years.                            He has been

privately reprimanded on two occasions, publicly reprimanded on

two occasions, and was previously suspended for one year.                          Ten

years     have    elapsed     since    he     was     last    sanctioned.          The

professional misconduct at issue here occurred in 2007.                           Upon

consideration of all of the facts of this particular case, we

agree with the referee that a five-month suspension of Attorney


                                        19
                                                                    No.      2011AP1820-D



Carroll's license to practice law in Wisconsin is an appropriate

sanction.

       ¶43   Attorney   Carroll      has     filed        an   objection        to     the

statement     of   costs.       He   asserts        the    amount       of    costs     is

unreasonable since the OLR failed to prove three of the six

counts related to the J.H. grievance.                     He also argues that a

disproportionate amount of fees and costs relate to the J.H.

matter.      Attorney   Carroll      asks    that    costs     be   reduced       by    50

percent.

       ¶44   The   court's      general      policy        upon     a     finding       of

misconduct is to impose all costs on the respondent attorney.

See SCR 22.24(1m).       Because the case presents no extraordinary

circumstances,     we   conclude      that    Attorney         Carroll       should     be

required to pay the full costs of this proceeding.

       ¶45   We choose not to follow the referee's recommendation

that Attorney Carroll be required to file a written statement

that he has read, understands, and agrees to be bound by and

obey   the   court's    rules    concerning         professional          conduct      for
attorneys and the rules governing disciplinary proceedings.                             As

noted in the Preamble to Wisconsin Rules of Professional Conduct

for Attorneys, "Compliance with the rules, as with all law in an

open society, depends primarily upon understanding and voluntary

compliance, secondarily upon reinforcement by peer and public

opinion and finally, when necessary, upon enforcement through

disciplinary proceedings."           SCR Chapter 20 Preamble, ¶[16]; see

also id., ¶[7] ("A lawyer should strive to attain the highest
level of skill, to improve the law and the legal profession and
                                       20
                                                          No.   2011AP1820-D



to exemplify the legal profession's ideals of public service.")

All lawyers who practice law in Wisconsin are bound by the rules

of professional conduct for attorneys and are presumed to know

the rules and follow them.           Requiring an attorney to file a

written statement averring that he or she understands and agrees

to be bound by the rules is redundant and unnecessary.

    ¶46    IT IS ORDERED that the license of John Miller Carroll

to practice law in Wisconsin is suspended for a period of five

months, effective January 23, 2014.

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

of this order, John Miller Carroll shall pay to the Office of

Lawyer   Regulation    the   costs   of   this    proceeding,   which   are

$27,438.26.

    ¶48    IT IS FURTHER ORDERED that John Miller Carroll shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

suspended.

    ¶49    IT   IS    FURTHER   ORDERED    that    compliance   with    all
conditions of this order is required for reinstatement.                 See

SCR 22.28(2).




                                     21
                                                                     No.   2011AP1820-D.ssa




      ¶50    SHIRLEY S. ABRAHAMSON, C.J.                    (dissenting).        Attorney

Carroll     has    previously      received        two    private     reprimands,      two

public reprimands, and a one-year suspension.                         In this case he

was   found       to   have    committed          seven   counts      of     professional

misconduct.        A five-month suspension of his license to practice

law   in    Wisconsin         is   not   in       keeping     with     our    system    of

progressive discipline.            I would impose a suspension of at least

six months.1

      ¶51    For the foregoing reasons, I respectfully dissent.

      ¶52    I    am   authorized        to   state       that   Justice       ANN   WALSH

BRADLEY joins this dissent.




      1
       An attorney whose license is suspended for misconduct for
six months or more must file a petition for reinstatement. See
SCRs 22.28(3) and 22.29.

                                              1
    No.   2011AP1820-D.ssa




1
