                                                                    2014 WI 126

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                2012AP1827-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against John J. Carter, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant-Respondent,
                              v.
                         John J. Carter,
                                   Respondent-Appellant.



                             DISCIPLINARY PROCEEDINGS AGAINST CARTER

OPINION FILED:           December 12, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           September 10, 2014

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:    PROSSER, ROGGENSACK, JJ., did not participate.

ATTORNEYS:
       For the respondent-appellant, there were briefs by Franklyn
M. Gimbel, Kathryn A. Keppel, and Gimbel, Reilly, Guerin & Brown
LLP, Milwaukee, and oral argument by Franklyn M. Gimbel.


       For    the       complainant-respondent,   there   was   a    brief   by
Matthew J. Price, and Foley & Lardner LLP, Milwaukee, and oral
argument by Matthew J. Price.
                                                                            2014 WI 126
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2012AP1827-D


STATE OF WISCONSIN                             :                IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John J. Carter, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
             Complainant-Respondent,
                                                                    DEC 12, 2014
      v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
John J. Carter,

             Respondent-Appellant.




      ATTORNEY        disciplinary       proceeding.         Attorney's         license

suspended.



      ¶1     PER    CURIAM.     We   review       a        referee's     report       and

recommendation concluding that Attorney John J. Carter violated

the   rules    of     professional   conduct          in     connection      with     his

representation of N.N.          The referee recommended that this court

impose a three-year suspension of Attorney Carter's law license

and   that    it    require   Attorney    Carter        to    pay    full    costs      in

connection     with    this    matter,    which       total      $6,680.62       as     of
September 24, 2014.           We adopt the referee's findings of fact,
                                                                      No.      2012AP1827-D



conclusions of law, and recommendation regarding discipline and

costs.

      ¶2      Attorney     Carter     was       admitted       to   practice      law     in

Wisconsin in 1974.         He has no disciplinary history.

      ¶3      On August 16, 2012, the Office of Lawyer Regulation

(OLR)    filed    a   complaint     against       Attorney      Carter      alleging     11

counts     of     professional        misconduct          arising        out     of     his

representation of his former client, N.N.                      Attorney Carter filed

an answer and Christine Harris Taylor was appointed as referee

in the matter.

      ¶4      Attorney Carter later entered a stipulation by which

he withdrew his answer; pled no contest to the 11 counts of

misconduct charged in the OLR complaint; and agreed that the

referee could use the allegations of the complaint as a factual

basis for the referee's determination of misconduct.                             Attorney

Carter reserved his right to argue the appropriate sanction.

After a hearing, the referee filed a report recommending the

above-stated discipline and finding the following facts.
      ¶5      Attorney Carter represented N.N. in the sale of her

business.        Attorney    Carter       and    N.N.    did    not   enter     into     any

written fee agreement for this work.                    In January 2009, the buyer

of   N.N.'s     business    wired     a    significant         portion    of    the     sale

price——$112,500——into Attorney Carter's trust account.                            Despite

N.N.'s repeated requests, Attorney Carter did not release this

amount to N.N.        Over the course of the next few months, Attorney

Carter converted a total of $72,053.59 of N.N.'s funds held in


                                            2
                                                             No.    2012AP1827-D



trust:     $32,400 to his own purposes and $39,653.59 attributable

to third party purposes.

      ¶6    In answer to N.N.'s repeated requests for her funds,

Attorney Carter lied to N.N., telling her that he had placed her

funds in various short-term investment instruments which had not

yet   matured.     Attorney   Carter    maintained    this    lie    for   many

months.

      ¶7    Occasionally, Attorney Carter made payments to N.N. of

her funds held in trust.       These periodic payments totaled just

over $90,000 by September 2009.

      ¶8    During the first year of his work for N.N. related to

the sale of her business, Attorney Carter did not send N.N. any

bills for his work, despite N.N.'s several requests for a bill.

Without informing N.N., Attorney Carter issued a $5,000 trust

account check to himself.      The check bore a notation that it was

for a partial fee payment for the N.N. matter.               Attorney Carter

also requested and received from N.N. two checks totaling $7,000

as payment for fees.
      ¶9    In late October 2009, Attorney Carter sent N.N. a bill

for his work.      The bill listed a subtotal of $66,930 in fees,

for 223.1 hours of work at $300 per hour.            The bill then listed

a 25% reduction in the number of hours worked, which reduced the

total to $50,400.     From that figure, Attorney Carter subtracted

$7,000 for the two checks that N.N. had sent him for fees, for a

total net due of $43,400.         The bill was itemized by general

categories    of   work   ("Correspondence,"    "Meetings,"         "Telephone
Conferences," "Draft/Review Documents,"        "Research") rather than
                                    3
                                                                   No.     2012AP1827-D



by specific entries.        The billing statement made no reference to

the   $5,000    in   fees   that    Attorney       Carter    had    paid     himself,

without N.N.'s knowledge, out of his trust account.

      ¶10   N.N. was surprised to receive the $43,400 bill from

Attorney Carter, as she believed the two had never agreed to the

terms of Attorney Carter's fees, and his $300 hourly rate was

considerably     higher     than    the    rates    he     had   charged      her    in

previous legal matters.

      ¶11   When N.N. objected to the bill, Attorney Carter became

defensive      and   adversarial.             He   claimed       that      N.N.     had

strategically not insisted upon a written fee agreement so that

she could later dispute his fees.              He threatened to take the fee

dispute to court.      He refused to release the remainder of N.N.'s

funds in his trust account until the fee dispute was resolved.

      ¶12   Ultimately, N.N. agreed to pay a total of $38,970 for

Attorney Carter's work.            N.N. and Attorney Carter agreed that

Attorney Carter would offset that amount by the $7,000 in checks

that N.N. had already sent him for fees, and by the amount of
N.N.'s funds that remained in Attorney Carter's trust account.

The   amount    of   fees    still        owing    after    these        offsets    was

$8,079.89.     N.N. sent Attorney Carter a check for that amount.

At the time she sent this check, N.N. was still unaware that

Attorney Carter had unilaterally withdrawn $5,000 from his trust




                                          4
                                                                No.     2012AP1827-D



account as a partial fee payment.              The record is unclear as to

whether N.N. ever became aware of this withdrawal.1

     ¶13     Based   on   the    stipulated      facts    set        forth   above,

Attorney Carter pled no contest to the following seven counts of

misconduct:

            Count   1:   By    failing   to    enter    into    a    written   fee

             agreement with N.N. for his representation of her in

             the sale of her business and other matters, Attorney

             Carter violated Supreme Court Rule (SCR) 20:1.5(b)(1).2

            Count   2:    By   failing   to     promptly       disburse     N.N.'s

             $112,500 in sale proceeds pursuant to her requests,

             and by refusing to release the balance of such sale




     1
       The parties have informed us that N.N. died before the OLR
filed its complaint against Attorney Carter.
     2
         SCR 20:1.5(b)(1) provides:

          The scope of the representation and the basis or
     rate of the fee and expenses for which the client will
     be responsible shall be communicated to the client in
     writing, before or within a reasonable time after
     commencing the representation, except when the lawyer
     will charge a regularly represented client on the same
     basis or rate as in the past.     If it is reasonably
     foreseeable that the total cost of representation to
     the client, including attorney's fees, will be $1000
     or less, the communication may be oral or in writing.
     Any changes in the basis or rate of the fee or
     expenses shall also be communicated in writing to the
     client.


                                      5
                                                                   No.     2012AP1827-D



            proceeds      to    her    until    they    had    resolved    their    fee

            dispute, Attorney Carter violated SCR 20:1.15(d)(1).3

           Count 3:      By failing to respond to N.N.'s requests for

            the   status       of     her   funds,     Attorney   Carter      violated

            SCR 20:1.4(a)(4).4

           Count    4:        By   failing     to   advise     N.N.   that    he   had

            withdrawn     $5,000       in   fees     without    providing     her   any

            notice        whatsoever,           Attorney        Carter        violated

            SCR 20:1.15(g)(1).5
    3
        SCR 20:1.l5(d)(1) provides:

         Upon receiving funds or other property in which a
    client has an interest, or in which the lawyer has
    received notice that a 3rd party has an interest
    identified by a lien, court order, judgment, or
    contract, the lawyer shall promptly notify the client
    or 3rd party in writing.     Except as stated in this
    rule or otherwise permitted by law or by agreement
    with the client, the lawyer shall promptly deliver to
    the client or 3rd party any funds or other property
    that the client or 3rd party is entitled to receive.
    4
       SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for information."
    5
        SCR 20:1.15(g)(1) provides:

         At least 5 business days before the date on which
    a disbursement is made from a trust account for the
    purpose of paying fees, with the exception of
    contingent fees or fees paid pursuant to court order,
    the lawyer shall transmit to the client in writing all
    of the following:

         a. an itemized bill or other accounting showing
    the services rendered;

         b. notice of the amount owed and the anticipated
    date of the withdrawal; and
                                                                          (continued)
                                            6
                                                                   No.     2012AP1827-D



           Count 5:       By failing to hold at least $72,053.59 of

            N.N.'s funds in trust and converting them to his own

            purposes    or      for   third     party      purposes      without    her

            knowledge      or      consent,         Attorney     Carter        violated

            SCR 20:1.15(b)(1)6 and SCR 20:8.4(c).7

           Count 6:    By engaging in an ongoing scheme for months

            of making repeated misrepresentations to N.N. that he

            had invested on her behalf the balance of her $112,500

            in various investment instruments, when in fact he had

            never   made     any      such     investments       and     had     already

            converted    her      funds       for    his   own    or     third    party

            purposes, Attorney Carter violated SCR 20:8.4(c).




          c. a statement of the balance of the client's
    funds    in  the  lawyer  trust  account after  the
    withdrawal.
    6
        SCR 20:1.15(b)(1) provides:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation.        All funds of
    clients and 3rd parties paid to a lawyer or law firm
    in connection with a representation shall be deposited
    in one or more identifiable trust accounts.
    7
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                          7
                                                                              No.    2012AP1827-D



              Count 7:     By failing to respond to N.N.'s requests for

               a   billing        statement,         Attorney               Carter     violated

               SCR 20:1.5(b)(3).8

    ¶14        During    the     course      of    the    OLR's        investigation          into

N.N.'s grievance, the OLR requested Attorney Carter's 2009 trust

account       records.      The      OLR's    review          of    the     records    revealed

deficiencies       that        led    to     the     following              four     counts     of

misconduct, to which Attorney Carter also pled no contest:

              Count 8:        In September 2009, Attorney Carter made an

               unidentified deposit to his trust account by telephone

               transfer in the amount of $2,500.                          Carter was unable

               to identify to the OLR the reason for this transfer,

               but his business account bank statements confirm the

               funds     came    from      him.          By        making    this     telephone

               transfer     to       his     trust       account,           Attorney     Carter

               violated SCR 20:1.15(e)(4)b.9


    8
       SCR 20:1.5(b)(3) provides, "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
    9
        SCR 20:1.15(e)(4)b. provides:

         No deposits or disbursements shall be made to or
    from a pooled trust account by a telephone transfer of
    funds.   This section does not prohibit any of the
    following:

               1. wire transfers.

         2. telephone transfers between non-pooled draft
    and non-pooled non-draft trust accounts that a lawyer
    maintains for a particular client.


                                              8
                                                                 No.    2012AP1827-D



        Count 9:          Another of Attorney Carter's clients, K.S,

         received      $2,000       monthly      payments    related    to    K.S.'s

         sale    of        a   business        interest.       Attorney        Carter

         represented K.S. with respect to this sale.                          Rather

         than    depositing         the   monthly     payments    in    his    trust

         account      and      then    disbursing     the    funds     to    K.S.   by

         issuing checks from the trust account, Attorney Carter

         channeled the funds through his own business account

         on     at     least        ten       occasions,     thereby        violating

         SCR 20:1.15(b)(1).

        Count       10:       By     failing    to   maintain    trust      account

         records showing the required information, including a

         transaction           register,        subsidiary     client        ledgers,

         deposit records, canceled checks, and monthly account

         reconciliations,                 Attorney          Carter           violated

         SCR 20:1.15(f)(1).10

10
     SCR 20:1.15(f)(1) provides:

     Complete records of a trust account that is a
draft account shall include a transaction register;
individual client ledgers for IOLTA accounts and other
pooled trust accounts; a ledger for account fees and
charges, if law firm funds are held in the account
pursuant to sub. (b)(3); deposit records; disbursement
records;   monthly   statements;   and   reconciliation
reports, subject to all of the following:

     a. Transaction register. 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;

                                                                       (continued)
                                          9
                                                    No.     2012AP1827-D




     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.

     b. Individual client ledgers. A subsidiary ledger
shall be maintained for each client or 3rd party for
whom the lawyer receives trust funds that are
deposited in an IOLTA account or any other pooled
trust account. The lawyer shall record each receipt
and disbursement of a client's or 3rd party's funds
and the balance following each transaction. A lawyer
shall not disburse funds from an IOLTA account or any
pooled trust account that would create a negative
balance with respect to any individual client or
matter.

     c. Ledger for account fees and charges. A
subsidiary ledger shall be maintained for funds of the
lawyer deposited in the trust account to accommodate
monthly service charges. Each deposit and expenditure
of the lawyer's funds in the account and the balance
following each transaction shall be identified in the
ledger.

      d. Deposit records. Deposit slips shall identify
the name of the lawyer or law firm, and the name of
the account. The deposit slip shall identify the
amount of each deposit item, the client or matter
associated with each deposit item, and the date of the
deposit. The lawyer shall maintain a copy or duplicate
of each deposit slip. All deposits shall be made
intact. No cash, or other form of disbursement, shall
be deducted from a deposit. Deposits of wired funds
shall    be   documented  in  the   account's  monthly
statement.

    e. Disbursement records.
                                                           (continued)
                              10
                                             No.    2012AP1827-D




     1. Checks. Checks shall be pre-printed and pre-
numbered. The name and address of the lawyer or law
firm, and the name of the account shall be printed in
the upper left corner of the check. Trust account
checks shall include the words "Client Account," or
"Trust Account" or words of similar import in the
account name. Each check disbursed from the trust
account shall identify the client matter and the
reason for the disbursement on the memo line.

     2. Canceled checks. Canceled checks shall be
obtained from the financial institution. Imaged checks
may be substituted for canceled checks.

     3. Imaged   checks.    Imaged  checks    shall  be
acceptable if they provide both the front and reverse
of the check and comply with the requirements of this
paragraph. The information contained on the reverse
side   of  the   imaged   checks   shall   include  any
endorsement signatures or stamps, account numbers, and
transaction dates that appear on the original. Imaged
checks shall be of sufficient size to be readable
without magnification and as close as possible to the
size of the original check.

     4. Wire   transfers.  Wire transfers  shall  be
documented by a written withdrawal authorization or
other documentation, such as a monthly statement of
the account that indicates the date of the transfer,
the payee, and the amount.

     f. Monthly   statement.  The   monthly   statement
provided to the lawyer or law firm by the financial
institution shall identify the name and address of the
lawyer or law firm and the name of the account.

     g. Reconciliation    reports.    For  each   trust
account, the lawyer shall prepare and retain a printed
reconciliation report on a regular and periodic basis
not   less  frequently   than   every   30  days.  Each
reconciliation report shall show all of the following
balances and verify that they are identical:

     1. the balance that appears in the transaction
register as of the reporting date;

                                                   (continued)
                          11
                                                                     No.   2012AP1827-D



             Count 11:       By issuing numerous trust account checks

              without     including   the       client    matter     and   purpose   of

              such checks on the memo line, Attorney Carter violated

              SCR 20:l.15(f)(l)e.1.

    ¶15       The   referee    held    a    one-day       hearing     on   sanctions.

Several       witnesses    testified       as    to      Attorney     Carter's    good

character and reputation, as well as his long-time community

involvement.        Attorney Carter also testified.                 He admitted that

he used funds from N.N.'s legal matter as a way to relieve

significant      financial     pressures        caused     by   a   failed   business

investment.         He admitted that he erred in managing his trust

account.       He admitted that his trust account records reflect

that he converted to himself at least $32,400 of N.N.'s funds

and converted for third party purposes approximately $39,600 of

N.N.'s funds.        He admitted that his claim that he had invested

N.N.'s funds was a lie.

    ¶16       In her report, the referee recommended a three-year

suspension of Attorney Carter's license.                   The referee wrote that
Attorney       Carter's     misconduct          ranged     from      trust    account

         2. the total of all subsidiary ledger balances
    for IOLTA accounts and other pooled trust accounts,
    determined by listing and totaling the balances in the
    individual client ledgers and the ledger for account
    fees and charges, as of the reporting date; and

         3. the adjusted balance, determined by adding
    outstanding deposits and other credits to the balance
    in the financial institution's monthly statement and
    subtracting outstanding checks and other deductions
    from the balance in the monthly statement.


                                           12
                                                                    No.        2012AP1827-D



recordkeeping violations "to the most fundamental betrayals of

the   attorney-client         relationship"——conversion            of    client        trust

funds.      The referee noted that Attorney Carter covered up his

conversion of N.N.'s funds by perpetuating a "phony story about

his investment of those funds," and that "[o]nce exposed, Carter

proceeded to hold hostage the distribution of [N.N.'s] trust

funds until Carter and [N.N.] reached an agreement as to the

amount and payment of Carter's attorney's fees."                          The referee

noted that Attorney Carter "perpetuated his investment charade

to OLR for months" before ultimately acknowledging that he never

invested N.N.'s funds.           The referee also found as an aggravating

factor Attorney Carter's lengthy legal experience, particularly

in matters of ethics and professional conduct.                     (Attorney Carter

served on the Milwaukee County Ethics Board for 28 years; on a

committee for the Board of Attorneys Professional Responsibility

for 20 years; and as a special investigator for the OLR for four

years.)      As mitigating factors, the referee noted that Attorney

Carter      ultimately    pled       no   contest   to   all       of     the     charged
misconduct;      owes    no      restitution;       enjoys     a        very     positive

reputation in the Milwaukee area; suffers from blindness as a

result of an injury incurred many years ago while on duty as a

police    officer;      and    has    expressed     genuine    remorse           for    his

actions.

      ¶17    There is no claim that any of the referee's findings

of fact are clearly erroneous.              Accordingly, we adopt them.                 See

In re Disciplinary Proceedings Against Eisenberg,                          2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747.
                                           13
                                                                No.     2012AP1827-D



      ¶18   The only issue on appeal is whether the recommended

discipline    is    appropriate.        The   court    may     impose     whatever

discipline     it     sees    fit,      regardless      of      the      referee's

recommendation.       See    In    re   Disciplinary    Proceedings         Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶19   Attorney Carter asks for either a public reprimand or,

at most, a suspension of less than six months.                 Attorney Carter

claims that his misconduct, while admittedly significant, caused

N.N. no monetary loss.            He claims there is virtually no risk

that he would repeat his misconduct given his personal history,

his age, his acceptance of responsibility, and his remorse for

his   misconduct.      He    further     claims   that,      given    his    solid

reputation, a reprimand or short suspension will be enough to

deter other lawyers from similar misconduct.

      ¶20   We disagree.     By any measure, and by Attorney Carter's

own   admission,      Attorney      Carter    engaged     in     very      serious

misconduct.    As we have previously explained:

      Misappropriation or conversion of client funds held in
      trust is one of the most serious acts of lawyer
      misconduct.   It violates the fundamental principle of
      the lawyer-client relationship——the trust the client
      places in the lawyer and upon which the lawyer depends
      to properly represent the client. Further, it places
      the lawyer's personal pecuniary interest above the
      client's interests, which the lawyer has undertaken to
      protect and promote, and it does so at the client's
      expense.   Accordingly, such misconduct should warrant
      the imposition of the most severe discipline——the
      license revocation.
In re Disciplinary Proceedings Against Bult, 142 Wis. 2d 885,
890, 419 N.W.2d 245 (1988).


                                        14
                                                                          No.    2012AP1827-D



       ¶21   Nonetheless,         we        have      cautioned          that        "license

revocation ought not be imposed indiscriminately in every case

of misappropriation or conversion of client funds, as there are

other factors to consider and no two disciplinary cases present

precisely the same circumstances."                  Id. at 890-91.

       ¶22   Thus, the question before the court is whether this

case   presents      sufficient      mitigating           circumstances         to   merit    a

sanction short of revocation.               It is a close call.

       ¶23   There are many aggravating factors.                        Attorney Carter's

conduct involved much more than simple negligence.                              His conduct

was reckless and highly unprofessional.                           In answer to N.N.'s

repeated requests for her funds——over $70,000 of which he had

converted——Attorney Carter wove elaborate stories of investment

instruments in which he had supposedly placed her money.                                  These

supposed investments were pure fiction.                           Not long after N.N.

objected     to     Attorney      Carter's         supposed        investment        scheme,

Attorney Carter took action to create leverage over N.N.:                                    he

sent   her   a     $43,400   legal      bill.        He    refused       to     release     the
remainder     of     N.N's    funds     in        trust    until     they       reached      an

agreement    on     his   fees.        He   accused        N.N.    of    trying      to    take

advantage of him by not insisting that he prepare a written fee

agreement listing his hourly rate.                   These forms of deception and

subterfuge are highly damaging to the public's confidence in the

integrity and trustworthiness of the bar.

       ¶24   There are mitigating factors as well.                       Attorney Carter

has had no previous disciplinary troubles over the course of his
long legal career.           He has earned a solid reputation among his
                                             15
                                                                             No.     2012AP1827-D



peers and in the community.                     It appears he repaid most, and

perhaps all, of the money he misappropriated from N.N. (The

record is unclear as to whether he ever accounted for the $5,000

fee payment he withdrew from his trust account without N.N.'s

knowledge.)          He has admitted his wrongdoing, pled no contest to

all 11 counts of misconduct, and expressed shame and remorse.

       ¶25     On     balance,      we        find     that        there     are     sufficient

mitigating          circumstances        to     call    for        a    sanction        short   of

revocation.          We agree with the referee's recommendation of a

three-year suspension.              We find In re Disciplinary Proceedings

Against      Goldstein,       2010 WI 26,        323 Wis. 2d 706,               782 N.W.2d 388

instructive.          There, a lawyer received a two-year suspension for

misconduct that included converting nearly $70,000 from three

probate       estates     for    which         the     attorney         served     as     special

administrator or personal representative.                           This court noted that

although it will "not hesitate to impose revocation when needed

and    many    cases     involving       conversion           of    funds    have       warranted

revocation,"         a   two-year    suspension          was        sufficient       given      the
lawyer's lack of prior discipline over a long legal career, his

acknowledgement          of   his   wrongdoing,          and       his     repayment      of    the

converted funds to his clients.                      Id., ¶¶28-29.              We agree with

the referee's assessment that a suspension longer than the two-

year    suspension       imposed     in       Goldstein        is      appropriate       here    in

light     of    Attorney        Carter's         "elaborate            scheme      specifically

employed to avoid his client's demands for distributions of her

trust funds," as well as the fact that he "[held] hostage the


                                                16
                                                                        No.     2012AP1827-D



distribution       of   her   trust    funds     until      he    was    successful      at

obtaining his attorney's fees."

       ¶26    We pause to remark briefly on Attorney Carter's claim

that at his age (he was born in 1943), a three-year suspension——

which will require him to petition this court for reinstatement

under SCR 22.28(3)——might effectively end his career.                              Attorney

Carter    generally      maintains     that      it   is    sad    for     an    otherwise

untarnished career to potentially end this way.                          We agree with

this sentiment:         this is an unfortunate case involving anomalous

behavior from an otherwise ethical lawyer, and we do not relish

deciding it.        But we decline to transform this sentiment into

anything more than what it is——a sentiment, not a principle of

law.     This court cannot countenance a rule that would soft-pedal

the discipline owed to attorneys who lie to and misappropriate

funds from their clients so long as they do so in the twilight

of their careers.

       ¶27    No restitution was sought and none is ordered in this

proceeding.        We note, however, that any attorney petitioning for
reinstatement from a disciplinary suspension of six months or

more is required to allege and demonstrate that the attorney

"has   made    restitution      to    or    settled        all    claims      of   persons

injured or harmed by [the attorney's] misconduct . . . or, if

not, the [attorney's] explanation of the failure or inability to

do so."      SCR 22.29(4m).

       ¶28    We    agree     with    the    referee's           recommendation        that

Attorney Carter be required to pay the costs of this proceeding,
which total $6,680.62 as of September 24, 2014.
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    ¶29    IT IS ORDERED that the license of John J. Carter to

practice law in Wisconsin is suspended for a period of three

years, effective January 11, 2015.

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

of this order, John J. Carter shall pay to the Office of Lawyer

Regulation the costs of this disciplinary proceeding.

    ¶31    IT IS FURTHER ORDERED that John J. Carter 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.

    ¶32    IT    IS   FURTHER   ORDERED    that    compliance      with    all

conditions of this order is required for reinstatement.                    See

SCR 22.29(4)(c).

    ¶33    DAVID T. PROSSER, J., and PATIENCE DRAKE ROGGENSACK,

J., did not participate.




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