                                                            2018 WI 26

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP112-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against James Toran , Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        James Toran,
                                  Respondent-Appellant.

                             DISCIPLINARY PROCEEDINGS AGAINST TORAN

OPINION FILED:          April 5, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 17, 2018

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the respondent-appellant, there was a brief filed and
an oral argument by Michael L. Chernin and Law Office of Michael
L. Chernin, Milwaukee.


       For the complainant-respondent, there was a brief filed and
oral argument by Gregg Herman on behalf of the Office of Lawyer
Regulation, Madison.
                                                                          2018 WI 26
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2016AP112-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against James Toran, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
            Complainant-Respondent,
                                                                   APR 5, 2018
      v.
                                                                     Sheila T. Reiff
                                                                  Clerk of Supreme Court
James Toran,

            Respondent-Appellant.




      ATTORNEY     disciplinary          proceeding.       Attorney's         license

suspended.



      ¶1    PER CURIAM.      Attorney       James Toran appeals a report

filed by Referee John A. Fiorenza concluding that Attorney Toran

committed    three       counts     of     professional          misconduct          and

recommending     that    Attorney   Toran     should       be    ordered      to     pay

restitution and that his license to practice law in Wisconsin be

suspended    for   one    year.          Attorney    Toran      entered       into     a

stipulation whereby he admitted to the alleged misconduct and
                                                             No.     2016AP112-D



agrees to pay restitution.         He argues that a lesser sanction is

warranted.

     ¶2     We adopt the referee's findings of fact, conclusions

of   law,    and    recommendation      regarding   restitution,       but   we

conclude that a 60-day suspension of Attorney Toran's license to

practice law is a sufficient sanction for his misconduct.                As is

our usual practice, we also agree that Attorney Toran should be

required to pay the full costs of this proceeding, which are

$2,188.05 as of February 6, 2018.

     ¶3     Attorney      Toran   was   admitted    to    practice     law   in

Wisconsin in 1983.          He practices criminal law in Milwaukee.

This is his fifth disciplinary proceeding.

     ¶4     In 1989, we suspended Attorney Toran's license for six

months because Attorney Toran arranged to receive cocaine as

payment of a portion of legal fees he charged to represent a

criminal client.         In re Disciplinary Proceedings Against Toran,

151 Wis. 2d 194, 443 N.W.2d 927 (1989).              He was charged          and

convicted of possession of cocaine and received two years of
probation.    Id.

     ¶5     In 1991, Attorney Toran received a consensual public

reprimand    for    misconduct    committed    in   two    client     matters.

Public Reprimand of James E. Toran, No. 1991-13 (electronic copy

available           at         https://compendium.wicourts.gov/app/raw/

000288.html).       In the first matter, a client retained Attorney

Toran to represent him on a speeding and drunk driving charge.

Attorney Toran failed to show up for a court hearing without
formal notice to the court and with only five minutes notice to
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                                                                No.    2016AP112-D



his client.     The client promptly discharged him and, although

Attorney Toran agreed to return $350 of the $500 retainer to the

client, he failed to do so.

    ¶6     In the second matter, a woman retained Attorney Toran

following her arrest on a drunk driving charge.                     She had been

offered a plea deal but Attorney Toran told her that she had a

good case.     She paid Attorney Toran a $500 retainer and, on

Attorney Toran's advice, drove 200 miles to take photographs of

the area where she had been driving to use as evidence at trial.

After several delays, Attorney Toran accepted a plea deal for

her without her consent.       Believing she was going to trial, she

tried to contact Attorney Toran without success.                She terminated

representation and, when she tried to discuss a refund, Attorney

Toran cancelled the meeting and subsequently failed to respond

to her telephone calls or to a certified letter.                      During the

investigation Attorney Toran agreed to refund her $500 retainer,

but failed to do so.

    ¶7     Attorney Toran received a consensual private reprimand
in 2007.

    ¶8     On November 3, 2012, Attorney Toran received another

consensual public reprimand based on misconduct in three client

matters.      Public    Reprimand    of       James   E.   Toran,   No.   2012-15

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

app/raw/002521.html).      Attorney Toran failed to provide a client

with a written fee agreement, in violation of SCR 20:1.5(b)(1).

With respect to the second client, Attorney Toran again failed
to provide the client with a written fee agreement and, despite
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repeated requests, also failed to provide the client with a copy

of discovery in the case, in violation of SCR 20:1.4(a)(4).

Attorney      Toran       also     falsely         told    the        Office     of     Lawyer

Regulation's (OLR) investigators that he had visited this client

in jail.       In the third client matter, Attorney Toran failed to

respond to appellate counsel's requests for the client's file

and failed to promptly deliver the client's file to appellate

counsel, in violation of SCR 20:1.16(d).

       ¶9     This proceeding commenced on January 15, 2016, when

the    OLR   filed    a    complaint         alleging     that    Attorney       Toran       had

committed misconduct in connection with his representation of

B.S.         The   OLR     sought        a   60-day       suspension       and        $500    in

restitution.         Attorney Toran filed an answer and a referee was

appointed.

       ¶10    At the beginning of the September 23, 2016 evidentiary

hearing, the lawyers informed the referee that Attorney Toran

had     stipulated         to     the        allegations         in     the      complaint.

Accordingly,       the     only        remaining     issue       was    the     appropriate
sanction.

       ¶11    The complaint alleged, and Attorney Toran stipulated,

that in November 2012 Attorney Toran was retained to represent

B.S. in a criminal matter.                   B.S.'s mother, D.S., paid Attorney

Toran $1,000 in advanced fees toward the representation.                                 There

was no written fee agreement.

       ¶12    At some point, D.S. asked Attorney Toran to file a

petition for writ of certiorari on her son's behalf.                                  Attorney
Toran    explained        to    D.S.    that    he   required         payment    of     $1,000
                                               4
                                                                      No.       2016AP112-D



before he would file the writ of certiorari.                          D.S. made some

additional         payments     totaling      approximately       $1,500.        Of   that

amount, $500 was paid in contemplation of Attorney Toran filing

the petition for writ of certiorari.                       However, the additional

$500 was not paid.            So, Attorney Toran did not draft or file the

writ of certiorari.

       ¶13       However, upon termination of representation, Attorney

Toran      never    refunded     D.S.    the       $500   paid   toward   the    writ   of

certiorari.         Attorney Toran also failed to deposit any of these

funds into his trust account.

       ¶14       The complaint alleged that, by failing to enter into a

written fee agreement with regard to his representation of B.S.

when       the   total   cost    of     the    representation       exceeded      $1,000,

Attorney Toran violated SCR 20:1.5(b)(l)(Count One);1 by failing

to deposit into his trust account the advanced payment of fees

made by B.S.'s mother on his behalf, and absent any evidence


       1
           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.    2016AP112-D



that Attorney Toran complied with the alternative protection for

fees available under SCR 20:1.15(b)(4m), Attorney Toran violated

(former) SCR 20:1.15(b)(4) (Count Two);2 and by failing to refund

the    $500       advanced    payment    of   fees   made   in     contemplation    of

filing a writ of certiorari, when no such work was completed,

Attorney Toran violated SCR 20:1.16(d)(Count Three).3

       ¶15    At the time of the evidentiary hearing it was clear

that       D.S.     felt     she   was   entitled     to    more     than    $500   in

       2
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.

       Former SCR 20:1.15(b)(4) provided:

            Except as provided in par. (4m), unearned fees
       and advanced payments of fees shall be held in trust
       until earned by the lawyer, and withdrawn pursuant to
       sub. (g). Funds advanced by a client or 3rd party for
       payment of costs shall be held in trust until the
       costs are incurred.

Attorney Toran does not argue that he complied with the advanced
fee alternative formerly available under SCR 20:1.15(4m).
       3
           SCR 20:1.16(d) provides:

            Upon termination of representation, a lawyer
       shall take steps to the extent reasonably practicable
       to protect a client's interests, such as giving
       reasonable notice to the client, allowing time for
       employment of other counsel, surrendering papers and
       property to which the client is entitled and refunding
       any advance payment of fee or expense that has not
       been earned or incurred. The lawyer may retain papers
       relating to the client to the extent permitted by
       other law.


                                              6
                                                                            No.     2016AP112-D



restitution.        The parties agreed that D.S. should be permitted

to    testify      and    she      did     so.         Both     lawyers           made     brief

presentations       to    the     referee      regarding       sanctions.               Attorney

Toran testified, saying, inter alia, that he thought he had

repaid D.S. but could not prove it.

      ¶16   The referee filed a brief report and recommendation on

January      30,        2017     accepting           the      parties'        stipulation,

recommending       the    court    order       Attorney       Toran    to    pay        $500   in

restitution        to    D.S.,     and,        in    light     of     Attorney           Toran's

disciplinary history, recommending a one-year license suspension

and costs.

      ¶17   Attorney       Toran      appeals.         He    asserts     that       a     public

reprimand is sufficient.                 The parties filed briefs, and this

court conducted oral argument on January 17, 2018.

      ¶18   Neither       party       challenges      the     referee's       findings         of

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

and   conclusions         of    law      and    we    adopt     them.             See    In    re

Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis. 2d 43, 675 N.W.2d 747.                    The issue for this court is the

appropriate level of discipline for Attorney Toran's admitted

misconduct: failing to provide a fee agreement, failing to hold

advanced fees in trust, and failing to return advanced fees to

D.S. when it became clear that he would not be drafting a writ

of certiorari petition.

      ¶19   Attorney Toran maintains that a public reprimand is

sufficient.        He seeks to provide some context for his errors.
He concedes, as he must, that this court adheres to the practice
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                                                                          No.    2016AP112-D



of progressive discipline.              See In re Disciplinary Proceedings

Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501;

In re Disciplinary Proceedings Against Lister, 2010 WI 108, 329

Wis. 2d 289, 787 N.W.2d 820.             He suggests however that his early

discipline is so remote in time and preceded his recovery and

should not be held against him in this matter.                            He notes that

the "[r]eferee's recommendation is terse in word and analysis"

and argues that progressive discipline does not "in any manner

suggest the harsh sanction recommended."                        However, he cites no

legal authority in support of his request for another public

reprimand.

      ¶20   The OLR agrees that a one-year suspension is too harsh

but maintains that a suspension of some length is merited.                               It

reiterates      its    request    for    a       60-day      suspension.          The    OLR

acknowledges     that       Attorney    Toran         was    cooperative        during   the

investigation         and    prosecution         of     this     matter.          The    OLR

acknowledges that, standing alone, in the absence of any prior

disciplinary      history,       the    nature         and     severity     of    Attorney
Toran's misconduct in this matter might warrant a reprimand, and

perhaps if restitution had been timely made, even a private

reprimand.

      ¶21   However, restitution was not timely made and this is

Attorney Toran's fifth disciplinary proceeding.                      Even if we were

to   discount    Attorney      Toran's     early        disciplinary       history,      the

facts giving rise to his 2012 public reprimand indicate this

misconduct was not an isolated or unique occurrence.                              As such,


                                             8
                                                                            No.       2016AP112-D



progressive        discipline     tips      the     balance       in    favor        of   license

suspension.        The question is how long?

      ¶22     We    agree      that   a    one-year         suspension          is   too       long.

Indeed,      any    license     suspension          of    six    months     or       more      would

require Attorney Toran to formally petition for reinstatement

pursuant to SCR 22.28(3), thereby delaying reinstatement.

      ¶23     A 60-day license suspension is the shortest license

suspension we impose.4             While no two disciplinary cases present

precisely the same circumstances, a 60-day suspension appears

most consistent with our prior practice in similar cases.                                        See

In re Disciplinary Proceedings Against Osicka, 2014 WI 33, 353

Wis. 2d 656,        847     N.W.2d 343      (imposing            60-day    suspension            for

violations         of   SCRs     20:1.15(b),             20:1.5(a),       20:1.16(d),           and

22.03(2) and (6) on attorney with three prior public reprimands,

the   most    recent      for    similar        misconduct);        In     re    Disciplinary

Proceedings        Against      Harris,     2010     WI     9,    322     Wis. 2d 364,           778

N.W.2d 154 (imposing a 60-day suspension for violations of SCRs

20:1.3 and 20:1.4 on attorney with a prior private reprimand and
a   prior    public       reprimand       for    similar        misconduct).              We   thus


      4
       The court may order a shorter suspension when imposing
discipline reciprocal to that imposed on an attorney by another
jurisdiction.    SCR 22.22.     We did impose 30-day license
suspensions   in  two   related   disciplinary  cases,  In   re
Disciplinary Proceedings Against Sommers, 2012 WI 33, 339
Wis. 2d 580, 811 N.W.2d 387 and In re Disciplinary Proceedings
Against Humphrey, 2012 WI 32, 339 Wis. 2d 531, 811 N.W.2d 363.
That outcome, imposed on lawyers with no prior discipline, was
explicitly characterized "an unusual case that calls for an
unusual result."


                                                9
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conclude that a 60-day suspension of Attorney Toran's license to

practice law in Wisconsin is sufficient to impress upon him the

seriousness of his misconduct, to protect other clients, and to

deter other attorneys from engaging in similar misconduct.

      ¶24    We turn to the question of restitution.                     The parties

stipulated     to    $500    in    restitution    to    D.S.,   and   the    referee

agreed.

      ¶25    At     the     evidentiary      hearing,     the    client's     mother

testified that she retained Attorney Toran in the fall of 2012

to   represent      her     son    in   a   criminal    proceeding.        She   gave

Attorney Toran $1,000 in cash or a cashier's check at that time.

The testimony from the evidentiary hearing disclosed that she

sought Attorney Toran's assistance on a number of interrelated

matters regarding her son, including a revocation proceeding.

She testified that she later gave Attorney Toran another $500-

$700, then another $800 for a total of $2,500 on "the first

case."      This testimony differed from the OLR's understanding, as

set forth in the complaint: that Attorney Toran had received a
total of $1,500.          D.S. offered no receipts or other evidence of

having paid Attorney Toran more than $1,500.                    It was clear that

D.S. wanted Attorney Toran to file a writ of certiorari petition

on her son's behalf, but paid only $500 of the requisite $1,000

fee for that work.                The referee considered the evidence and

recommended, consistent with the parties' stipulation, that we

direct Attorney Toran to pay $500 in restitution to D.S.                           We

accept that recommendation and we also agree that Attorney Toran
should pay the full costs of this proceeding.
                                            10
                                                               No.    2016AP112-D



     ¶26    IT   IS   ORDERED   that    the   license    of   James    Toran   to

practice law in Wisconsin is suspended for a period of 60 days

effective May 17, 2018.

     ¶27    IT IS FURTHER ORDERED that James Toran shall pay $500

in restitution to D.S., the mother of his former client, B.S.

     ¶28    IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

     ¶29    IT IS FURTHER ORDERED that James Toran comply with the

provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been suspended.

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

of   this   order,    James     Toran   pay   to   the    Office      of   Lawyer

Regulation the costs of this proceeding, which are $2,188.05 as

of February 6, 2018.       If the costs are not paid within the time

specified, and absent a showing to this court of his inability

to pay the costs within that time, the license of James Toran to

practice law in Wisconsin shall remain suspended until further
order of the court.




                                        11
    No.   2016AP112-D




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