                                                              2013 WI 25

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP371-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Richard J. Podell, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Richard J. Podell,
                                  Respondent.


                            DISCIPLINARY PROCEEDINGS AGAINST PODELL

OPINION FILED:          March 22, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2013 WI 25
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.       2012AP371-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Richard J. Podell, Attorney at Law:

Office of Lawyer Regulation,                                          FILED
              Complainant,
                                                                 MAR 22, 2013
      v.
                                                                    Diane M. Fremgen
                                                                 Clerk of Supreme Court
Richard J. Podell,

              Respondent.




      ATTORNEY disciplinary proceeding.             Complaint dismissed.



      ¶1      PER    CURIAM.   Pending   before     the    court     is    a   report
filed by Referee Richard C. Ninneman recommending this court

dismiss      a      disciplinary   complaint       filed     against        Attorney
Richard J. Podell.          No appeal has been filed, so we consider

this matter pursuant to SCR 22.17(2).1

      1
          SCR 22.17(2) states:

           If no appeal is filed timely, the supreme court
      shall review the referee's report; adopt, reject or
      modify the referee's findings and conclusions or
      remand the matter to the referee for additional
      findings;  and   determine  and  impose  appropriate
                                                                            No.    2012AP371-D



        ¶2    We agree with the referee's conclusion that the facts

of this case do not support a conclusion that Attorney Podell's

conduct      violated       SCR    20:8.4(c).          We       therefore      dismiss        the

complaint.         No costs will be imposed.

        ¶3    Attorney       Podell      was       admitted      to    practice         law    in

Wisconsin in 1969.            He practices family law in Milwaukee.                            He

has not      previously      been     disciplined          by   the    Office      of    Lawyer

Regulation (OLR).

        ¶4    On     February      21,    2012,      the    OLR       filed    a   complaint

against Attorney Podell alleging that he engaged in professional

misconduct           involving           dishonesty,            fraud,         deceit          or

misrepresentation in violation of SCR 20:8.4(c) when he filed

three      expense    reimbursement         requests        with      the     American        Bar

Association (ABA) in connection with its 2010 midyear meeting in

Orlando, Florida.

      ¶5     Attorney Podell was a longstanding active member of

the ABA, serving on numerous committees and holding numerous

office positions.            He was a member of the House of Delegates,
was   past-Chair       of    the   Family      Law    Section,        was     Chair     of    the

Individual Rights and Responsibilities Section, and also served
as budget      officer of the            Senior      Lawyers      Division.           Attorney

Podell frequently attended ABA section meetings and ABA House of
Delegates meetings and often submitted requests for financial

reimbursement to different ABA sections.


        discipline.   The court, on its own motion, may order
        the parties to file briefs in the matter.

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                                                                          No.    2012AP371-D



        ¶6     The     OLR's    complaint       alleged      that     Attorney         Podell

personally       submitted       three    claims    for      expense       reimbursement

following the 2010 ABA midyear meeting in Orlando, Florida, that

included       separate        requests    for     reimbursement          of     the    same

expenses.        In total, Attorney Podell sought reimbursement of

$2,371.50 from the ABA.

        ¶7     Attorney Podell then received a letter from the ABA

advising him he had sent "compound" (duplicate) reimbursement

requests.       The ABA then conducted an audit of Attorney Podell's

ABA reimbursement requests for the years 2007, 2008, and 2009,

which       revealed    that    Attorney    Podell      had       submitted      duplicate

requests for expense reimbursement to various ABA entities for

those       years.     The     total   overpayment      by    the    ABA    to       Attorney

Podell for these years was $1,155.80.2

     ¶8        Attorney      Podell    admitted     that     he     did   not    send    the

reimbursement requests to the ABA in an appropriate manner.                               He

expressed embarrassment and regret, repaid the ABA the amounts

calculated as owed, claimed                that    he   often      failed       to   request
reimbursement for ABA-related expenses and, had he done so, the

ABA would have had to pay him considerable sums of money, and




        2
       Attorney Podell testified that during his 40 years of ABA
service he submitted 200 to 300 such vouchers and from time to
time, ABA staff would point out errors he had made, which he
would then correct and resubmit. Between 2008 and 2010 Attorney
Podell attended 56 ABA meetings outside the state of Wisconsin.
Of these 56 meetings, he only submitted reimbursement vouchers
for approximately 35 meetings.

                                            3
                                                                        No.     2012AP371-D



that       he    would     not   submit        any       further    requests     for     ABA

reimbursement.           He immediately sought to rectify his mistake.

       ¶9       There was testimony at the evidentiary hearing about

the        confusing       nature      of          ABA     reimbursement        policies.

Reimbursement policies for meals and lodging were a per diem

rate, which differed based on the type of meeting attended.3                             The

referee         also     heard   testimony           regarding      Attorney     Podell's

excellent reputation for trustworthiness and honesty.

       ¶10      The    referee   found      that         Attorney    Podell     submitted

requests        for    reimbursement      of       his    $207.70   airfare     to     three

separate ABA entities, totaling $415.40 in duplicate requests.

He also submitted duplicate requests for reimbursement of the

cost of ground transportation in the amount of $168.40, for a

total of $583.80 in so-called compound billing.                               The referee

found that the OLR failed to establish any compound (duplicate)

billing for lodging/meals.4
       3
       For example, on the reimbursement form to the Individual
Rights and Responsibilities Section, lodging and meals were
limited to $100 per day.    The reimbursement form to the Senior
Lawyers Division limited lodging expenses to $200 per day. The
reimbursement request to the House of Delegates states that
lodging and meals are not reimbursable, but further below
provides that certain committee members may be reimbursed at the
rate of $100 per day for hotel expenses.       The reimbursement
policies are not designed to fully reimburse one for expenses
incurred in attending a meeting.
       4
       Attorney Podell incurred expenses for the Orlando midyear
meeting in the amount of $2,861.06 ($2,373.36 for lodging and
meals; $337.70 for airfare including the reservation change fee;
$125 for ground transportation; and $25 for miscellaneous
expenses). Attorney Podell was reimbursed $832.70, so he
incurred $2,028.36 in expenses for which he was not reimbursed
for this meeting alone.

                                               4
                                                                       No.        2012AP371-D



        ¶11    When Attorney Podell reimbursed the ABA he was told

that the matter was closed.              Nonetheless, in 2010 T. Maxfield

Bahner, a Tennessee attorney and former ABA officer, learned of

this matter from an ABA staff member.                           The ABA did not ask

Bahner to investigate the matter, but Bahner began pursuing the

matter of his own accord.

        ¶12    Bahner discussed the issue with numerous individuals

and set up phone conference calls with Attorney Podell during

which     an    ABA    staff    member   silently          listened        and     Bahner's

secretary also listened and took notes.                          Indeed, the referee

commented:

        [W]atching Bahner testify and considering the number
        of people within the ABA who now were aware of this
        matter; considering Bahner's rush to judgment that
        Podell was guilty of dishonesty from the very outset;
        considering Bahner's obsession that Podell should
        self-report this to OLR despite advice from others;
        considering that phone conversations with his so-
        called "friend" were silently being listened to by a
        notekeeper or ABA staff; this referee is reminded of
        the old adage that with friends like this, who needs
        enemies.
There    is     no    indication    these        factual     findings       are     clearly

erroneous.

     ¶13       We consider whether Attorney Podell's conduct violated

SCR 20:8.4(c).           Supreme court           rule   20:8.4(c)     provides        it    is

professional         misconduct    for   a       lawyer    to     "engage    in     conduct

involving dishonesty, fraud, deceit or misrepresentation."

    ¶14        The    referee   considered        the     cases    cited     by    the     OLR

inapposite based on his credibility determination that Attorney



                                             5
                                                             No.   2012AP371-D



Podell's conduct was neither knowing nor intentional.5             See In re

Disciplinary Proceedings Against Jacobson, 2004 WI 152, ¶50, 277

Wis. 2d 120, 690 N.W.2d 264 (noting that intent can be inferred

from the circumstances, and it is proper for the referee to

assess an attorney's credibility with respect to intent).                  The

OLR thus    failed to convince       the   referee   "that    an   attorney's

unintentional     error    or    careless      mistake       in    submitting

reimbursement vouchers to the ABA, without more, will support a

finding that the attorney violated SCR 20:8.4(c)."

      ¶15   The referee deemed it significant that when the errors

were called to Attorney Podell's attention, he not only admitted

the   mistake,   but   sought   to   correct   the   same    and   took   full

responsibility for the error.        The referee stated:

      In observing Podell, this referee finds that Podell's
      actions in this matter were not done knowingly,
      recklessly, consciously or intentionally for the
      purpose of getting a larger reimbursement from the ABA
      than he was entitled to for the meeting. . . .

           This referee finds that OLR has not proven by
      clear, satisfactory and convincing evidence that
      Podell engaged [in] professional misconduct involving
      dishonesty, fraud, deceit or misrepresentation with
      respect to his 2010 expense vouchers to the ABA in
      connection with the Orlando midyear meeting.




      5
       The referee observed, in part, that Attorney Podell has
been actively involved in ABA activities for 40 years, had
political aspirations, and attended multiple meetings of the ABA
outside the state of Wisconsin at considerable financial expense
to Attorney Podell. Given this background, the referee found it
"inconceivable that he would intentionally throw all of this
away by trying to cheat the ABA out of $583.80."

                                      6
                                                                No.    2012AP371-D



      ¶16   Thus, the referee concluded the OLR failed to meet its

burden of proof that Attorney Podell violated SCR 20:8.4(c) and

recommended the court dismiss the complaint.

      ¶17   A referee's findings of fact will not be set aside

unless they are clearly erroneous.                 We review the referee's

conclusions of law       de novo.     In    re     Disciplinary       Proceedings

Against     Eisenberg,   2004    WI   14,    ¶5,     269      Wis. 2d 43,     675

N.W.2d 747.     We conclude that the referee's findings of fact are

not   clearly    erroneous,     and   we    also     uphold     the     referee's

conclusion of law that Attorney Podell's conduct did not violate

SCR 20:8.4(c).      Consequently, we dismiss the OLR's complaint.

No costs will be imposed.

      ¶18   IT IS ORDERED that the Office of Lawyer Regulation's

complaint is dismissed.       No costs are imposed.




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    No.   2012AP371-D




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