                                                                      2015 WI 83

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2013AP1619-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Paul A. Strouse, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Paul A. Strouse,
                                  Respondent-Appellant.

                              DISCIPLINARY PROCEEDINGS AGAINST STROUSE

OPINION FILED:          July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 16, 2015

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   BRADLEY, J. did not participate.

ATTORNEYS:
       For the respondent-appellant, there were briefs by Dean R.
Dietrich and Ruder Ware L.L.S.C., Wausau, and oral argument by
Dean R. Dietrich.




       For the complainant-respondent, there was a brief by James
C.   Reiher       and   The   Schroder   Group,   S.C.,   Waukesha,   and   oral
argument by James C. Reiher.
                                                                      2015 WI 83
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.      2013AP1619-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Paul A. Strouse, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
             Complainant-Respondent,
                                                              JUL 15, 2015
        v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Paul A. Strouse,

             Respondent-Appellant.




        ATTORNEY      disciplinary   proceeding.      Attorney's          license
suspended.


        ¶1   PER CURIAM.     Attorney Paul A. Strouse has appealed a
report filed by Referee Kevin L. Ferguson, concluding that he
engaged in professional misconduct and recommending that this
court suspend Attorney Strouse's license to practice law for 60
days and impose full costs, which total $67,562.12 as of May 6,
2015.
        ¶2   Having     considered   the   referee's       report       and     the
parties' briefs and oral argument on appeal, we conclude that
                                                                          No.    2013AP1619-D



the referee's findings of fact are supported by satisfactory and
convincing evidence and we accept his conclusions of law, with
one exception:        we dismiss the allegation that Attorney Strouse
violated    Supreme     Court    Rule    (SCR)        20:8.4(c).          We    agree       that
Attorney    Strouse's      misconduct         warrants       the    suspension         of    his
license to practice law for 60 days and we impose the full costs
of this proceeding.
     ¶3      Attorney    Strouse        was       admitted     to       practice    law      in
Wisconsin     in   1991.        He     practices        in    Milwaukee,          primarily
representing       debtors      in   bankruptcy          proceedings.              Attorney
Strouse     has    received      two     previous        public          reprimands         for
misconduct     that     occurred       between        2007      and      2009.         Public
Reprimand of Paul A. Strouse, 2010-2; Public Reprimand of Paul
A. Strouse, 2011-5.            In addition, during the pendency of this
proceeding, Attorney Strouse received a third public reprimand.
Public Reprimand of Paul Strouse, 2015-6.
     ¶4      The   Office      of    Lawyer         Regulation          (OLR)    filed      the
complaint    giving     rise    to   this         proceeding       on    July    22,     2013,
alleging eights counts of professional misconduct committed in
four separate client matters.                 Attorney Strouse filed an answer
and Referee Ferguson was appointed.                     Attorney Strouse amended
his answer, and discovery and pre-hearing motions followed.
     ¶5      Shortly     before      the          evidentiary       hearing,       Attorney
Strouse entered into a stipulation with the OLR to withdraw his
amended answer and allow entry of judgment regarding Counts One
and Two, pertaining to the matter of F.E.                             Subsequently, the


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                                                                                 No.       2013AP1619-D



parties       entered      into       a    stipulation         of    facts,          including       59
exhibits.
        ¶6     In    June       2014,      the         referee      commenced          a     four-day
evidentiary         hearing      which      included        extensive           testimony,         more
than 100 exhibits, and more than 150 pages of briefing.                                             The
referee       issued     his     report      and       recommendation           on     October      30,
2014.        This appeal followed.               The court heard oral argument on
April 16, 2015.
        ¶7     When reviewing a referee's report and recommendation,
the referee, as the finder of fact, is the ultimate arbiter of
the     credibility         of     the       witnesses.              In     re         Disciplinary
Proceedings         Against       Alia,      2006 WI 12,            ¶71,        288 Wis. 2d 299,

709 N.W.2d 399.            We affirm the referee's findings of fact unless
they    are    clearly      erroneous.             In     re     Disciplinary          Proceedings
Against       Inglimo,      2007 WI 126,           ¶5,     305 Wis. 2d 71,                 740 N.W.2d
125.     We review the referee's conclusions of law de novo.                                     Alia,
2006 WI 12,         ¶39.         We       determine        the      appropriate            level     of
discipline to impose given the particular facts of each case,
independent         of   the     referee's         recommendation,              but    benefitting
from     it.        In     re    Disciplinary            Proceedings        Against           Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
        ¶8     Each of the client matters raised in the OLR complaint
will be addressed seriatim.
        Matter of F.E.
        ¶9     Attorney         Strouse      stipulated          that      he     committed        the
misconduct alleged in connection with his representation of F.E.


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                                                                                 No.     2013AP1619-D



The facts will be summarized because the admitted misconduct is
relevant to our assessment of appropriate discipline.
     ¶10     F.E.       purchased          a    gas      station/convenience              store     in
Milwaukee       and,     as     part    of      that      transaction,           F.E.     signed     a
Commercial        Security           Agreement           that        gave      Ridgestone         Bank
(Ridgestone) a security interest in, as relevant here, certain
fuel monitoring equipment.                     In April 2009, Ridgestone started
foreclosure       proceedings          on      the       gas    station,        and     obtained     a
default judgment in June 2009.                          Also in June 2009, F.E. hired
Attorney    Strouse.            Ridgestone's             lawyer       began     asking     Attorney
Strouse    to     arrange        for    F.E.        to    return        the     fuel    monitoring
equipment.          Meanwhile,         Attorney           Strouse        filed     a    Chapter      7

bankruptcy petition on behalf of F.E. and, at some point, F.E.
delivered the fuel monitoring equipment to Attorney Strouse's
office.     Attorney Strouse did not give F.E. a receipt.
     ¶11     On     November         20,       2009,      after        Attorney        Strouse    had
failed to respond to repeated requests for the return of the
equipment,        the     gas    station's              receiver        went     unannounced        to
Attorney     Strouse's          office         to       collect        the      fuel    monitoring
equipment.         Attorney Strouse admitted the equipment had been
stolen or lost.
     ¶12     The        complaint       alleged           and        Attorney     Strouse        later
stipulated         that,        by     failing            to         clearly      identify        and
appropriately safeguard the fuel monitoring equipment left in

his possession, notwithstanding his receipt of written notice of
Ridgestone's interest in the property, Attorney Strouse violated
SCR 20:1.15(b)(6),            which        provides,            in    pertinent        part,      that
                                                    4
                                                                       No.     2013AP1619-D



"[t]he lawyer shall clearly identify and appropriately safeguard
other property of a client or 3rd party" (Count One).
        ¶13     The   complaint       alleged    further    and   Attorney        Strouse
stipulated that, by failing to provide a signed, written receipt
to F.E. describing the fuel monitoring equipment he had taken
into custody and the date of receipt, Attorney Strouse violated
SCR 20:1.15(j)(8)b., which provides that "[u]pon taking custody,
as a fiduciary, of any tangible personal property or securities
in     bearer     form,     the    lawyer    shall      provide   to     the     previous
custodian a signed receipt, with a description of the property,
and the date of receipt" (Count Two).
        ¶14     We turn to the disputed aspects of this disciplinary

matter.
        Matter of G.B.
        ¶15     Attorney Strouse appeals the referee's conclusion that
he committed two counts of misconduct in his representation of
G.B.     In November 2009, G.B. and his partner, C.W., met with
Attorney Strouse to discuss Chapter 7 bankruptcy proceedings.
Attorney Strouse quoted each a fee of approximately $900 for
their respective bankruptcy proceedings, consisting of $300 in
filing fees and $600 in legal fees.                     It is undisputed that the
initial fee quote was less than $1,000.
        ¶16     On February 3, 2010, they met again and G.B. offered
to   provide      website       design   services    in    exchange     for     the   $600
attorney      fee.        The   OLR   alleged    that     Attorney     Strouse     orally
agreed to G.B.'s suggestion.                G.B. claimed he subsequently spent
some 15 hours on the website project.                   Attorney Strouse disputes
                                             5
                                                                                  No.   2013AP1619-D



this claim, stating that he rejected G.B.'s suggestion because a
longtime     friend       did    his     website          design.            He     claims        that,
instead,    he     renewed      his     offer       for    a    "special          rate"     of     $975
conditioned       upon    receiving        $650       up       front       before       filing      the
bankruptcy petition.                 G.B. gave Attorney Strouse $300 for the
bankruptcy filing fee that day.
     ¶17     On March 6, 2010, G.B. met with Attorney Strouse's law
associate     to    review       and     sign        bankruptcy            schedules        for     his
bankruptcy petition.             The schedules included Form 2016(b), which
stated   that      Attorney          Strouse    had       agreed       to    accept       $0.00      in
attorney's fees and that no balance was due.                                       The form also
contained    the     following         certification:                 "I    certify       that      the

foregoing     is      a    complete           statement          of        any     agreement         or
arrangement        for    payment        to     me     for       representation             of      the
debtor(s) in this bankruptcy proceeding."
     ¶18     G.B. stated that he interpreted the $0 as evidence of
the agreement to exchange web design for legal fees.                                        Attorney
Strouse maintains that the $0 figure was an error; he stated
that the bankruptcy petition had to be filed quickly because a
small claims action had just been filed against G.B.
     ¶19     On    March        8,     2010,    Attorney          Strouse           filed    G.B.'s
bankruptcy petition and sent G.B. a letter advising him that the
bankruptcy petition had been filed.                        This letter did not request
any additional fee.

     ¶20     On or about March 15, 2010, Attorney Strouse and G.B.
spoke by telephone. The substance of that conversation is hotly
contested.        G.B. claimed that Attorney Strouse abruptly stated
                                                6
                                                                    No.     2013AP1619-D



that   he    no    longer   wanted       G.B.    to   work   on    the    website     and
demanded $750, increasing the total cost of representation to
$1,050.      Attorney Strouse claims that G.B. realized that most of
the work on his bankruptcy case was done and didn't intend to
pay his balance.            Attorney Strouse acknowledged that he "got
angry" and demanded payment.
       ¶21   On    March    17,    2010,    Attorney      Strouse     sent    G.B.     an
invoice for $1,050, reflecting a $300 payment received and a new
balance due of $750.          A series of oral demands for payment and
refusals      ensued.             G.B.     terminated        Attorney        Strouse's
representation       and    Attorney      Strouse     withdrew     as     counsel     for
G.B.'s bankruptcy case.

       ¶22   On March 26, 2010, G.B. filed a small claims action
against Attorney Strouse in Kenosha County, seeking a refund of
his $300 filing fee, and alleging that Attorney Strouse reneged
on a barter for services agreement.                     On July 21, 2010, G.B.
prevailed at a bench trial.                 The transcript from this small
claims proceeding reflects that the circuit court found that
Attorney Strouse reneged on a barter agreement for services.
The circuit court deemed significant the $0 in fees claimed in
the    bankruptcy     disclosure.          The    circuit     court      awarded     G.B.
$459.50.
       ¶23   Turning to this disciplinary proceeding, the referee
concluded that "Attorney Strouse failed to provide to [G.B.] a

written      fee    agreement        setting      forth      the    scope     of      the
representation and the basis or rate of the fees or expenses for
representation"       and     that       "Attorney     Strouse      reneged     on     an
                                            7
                                                                No.     2013AP1619-D



agreement to provide legal services to [G.B.] for $900.00 and
subsequently failed to abide by the agreement when he increased
the fee to $1,050.00 without his client's consent."                    The referee
thus concluded that Attorney Strouse violated SCR 20:1.5(b)(1)
(Count     Three)      and     SCR 20:8.4(c)       (Count      Four)      in    his
representation of G.B.
     ¶24    We    first    consider   whether    Attorney      Strouse    violated
SCR 20:1.5(b)(1).         SCR 20:1.5(b)(l) 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 . . . .       If it is
     reasonably foreseeable that the total cost of the
     representation to the client, including attorney's
     fees, will be $1,000 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.
     ¶25    The      American         Bar     Association         Comment        to
SCR 20:1.5(b)(1) reminds us of the reason for this rule:

     In a new client-lawyer relationship, however, an
     understanding as to fees and expenses must be promptly
     established.   Generally, it is desirable to furnish
     the client with at least a simple memorandum or copy
     of the lawyer's customary fee arrangements that states
     the general nature of the legal services to be
     provided, the basis, rate or total amount of the fee
     and whether and to what extent the client will be
     responsible for any costs, expenses or disbursements
     in the course of the representation.         A written
     statement concerning the terms of the engagement
     reduces the possibility of misunderstanding.
     ¶26    Attorney       Strouse    takes     issue   with     the     referee's
statement that he "failed to provide to [G.B.] a written fee


                                        8
                                                                                   No.     2013AP1619-D



agreement."           Attorney            Strouse       correctly         notes    that        the    term
"written fee agreement" does not appear in the rule and that no
written fee communication is required when it is foreseeable
that the total cost of representation will be $1,000 or less.
        ¶27    However,         our       rule    requires         that    certain        information
with respect to fees and expenses be communicated to the client,
whether orally or in writing.                          The rule expressly requires that
any changes in the basis or rate of the fee or expenses shall
also    be    communicated            in        writing      to    the    client.          The       first
paragraph      of     the       Wisconsin             Committee      Comment        to     SCR 20:1.5
observes that "communication to the client through the billing
statement should clearly indicate that a change in the basis or

rate of the fee or expenses has occurred along with an indication
of the new basis or rate of the fee or expenses."                                        This was not
done.
        ¶28    The    referee             found       that    "Strouse           unilaterally          set
[G.B.'s] account at his regular flat rate of $1,050 and sent the
Statement      . . .       to    [G.B.]          because      he    was     angry    with       [G.B.]"
(emphasis added).               Attorney Strouse sent a brief cover letter
and a cursory billing statement that makes absolutely no mention
of any change in the fee charged to G.B., much less setting
forth    the     reason         for       the    change.           Simply    put,        the    cursory
billing statement submitted to G.B., unilaterally increasing the
fee for legal services in the wake of an acrimonious telephone

call,     does       not    satisfy             the    requirements          of     SCR 20:1.5(b).
Notwithstanding            the        imprecise            language         in     the      referee's
conclusion       regarding            a    "written          fee    agreement,"           the    record
                                                       9
                                                                                   No.     2013AP1619-D



contains       clear,        satisfactory,            and        convincing            evidence           that
Attorney       Strouse        failed        to        satisfy           the     requirements                of
SCR 20:1.5(b)(l).
        ¶29    We next consider Attorney Strouse's appeal from the
referee's       conclusion       that        he       violated          SCR 20:8.4(c)            in        his
representation          of    G.B.          SCR 20:8.4(c)               provides         that        it     is
professional          misconduct       for       a     lawyer         to    "engage       in     conduct
involving       dishonesty,           fraud,          deceit          or      misrepresentation."
Attorney       Strouse       contends        that          the    referee         failed        to        make
necessary      or     sufficient       credibility               determinations           to     support
his findings and conclusions on this point.                                       We agree.                Our
review    would       be     simpler    had          the    referee         made       more     explicit

findings       to     support    his        conclusion            that        Attorney         Strouse's
conduct       constituted        fraud,          deceit,          or       misrepresentation                in
violation of SCR 20:8.4(c).
        ¶30    The     OLR    alleged        that,          by    reneging         on     an     alleged
agreement      to     provide    legal       services            to     G.B.      in    exchange           for
website design services or, in the alternative, by agreeing to
provide       legal    services       for     $900         and    subsequently            failing           to
abide    by    that     agreement,          unilaterally               increasing         the       fee     to
$1,050 without his client's consent, Attorney Strouse violated
SCR 20:8.4(c).
        ¶31    The    referee        made    a       factual       finding         that       the    small
claims court "found in favor of [G.B.] and awarded [G.B.] a
judgment       of     $300.00    plus       costs          against         Strouse       to     be        paid
[G.B.]"       and     that     the     court         "concluded            that        there    was         an
agreement between [G.B.] and Strouse for website design services
                                                  10
                                                                        No.    2013AP1619-D



in   lieu     of    bankruptcy      legal    fees    [when       he    stated]:         'I'm
satisfied there was an agreement.                    You were taking it out in
work.'"       However, the referee's mere recognition of the prior
small claims proceeding is insufficient, alone, to sustain a
violation of SCR 20:8.4(c) under these facts, particularly in
view of the lower burden of proof applicable in small claims
proceedings.             The    referee    did     find   that        Attorney     Strouse
"reneged" on an agreement with G.B., but the precise nature of
that    agreement         remains     unclear       and    the        circumstances       as
reflected      in    the       referee's    findings      do    not     establish       that
Attorney       Strouse's           conduct        rose     to         the      level      of
misrepresentation          in    violation    of    SCR 20:8.4(c).            This     court

will not make a finding that the referee could have made but did
not.         See    In     re    Disciplinary       Proceedings          Against       Wood,
122 Wis. 2d 610,           363 N.W.2d 220          (1985);       see        also   In     re
Disciplinary        Proceedings       Against       Swartwout,         116 Wis. 2d 380,
342 N.W.2d 406 (1984).             We conclude that the referee's findings
do not support the conclusion that Attorney Strouse's conduct
constituted misrepresentation in violation of SCR 20:8.4(c) and
we dismiss this charge.
       Matter of Y.W.
       ¶32    Attorney           Strouse      appeals          Referee         Ferguson's
determination that Attorney Strouse violated SCR 20:1.5(b)(1) in
his representation of Y.W.                 In February 2010, Attorney Strouse
agreed to represent Y.W. in a Chapter 7 bankruptcy matter and,
on February 4, 2010, Y.W. paid Attorney Strouse $100 to start


                                             11
                                                                       No.    2013AP1619-D



the proceeding.         The receipt reflects payment but does not state
a balance due.
        ¶33    On April 3, 2010, Y.W. paid an additional $300.                         The
receipt reflects a balance due of $650.
        ¶34    On    April   15,     2010,     Attorney      Strouse     filed    Y.W.'s
Chapter 7 bankruptcy petition, without schedules.                             He sent a
billing statement to Y.W. dated April 15, 2010, reflecting an
opening balance of $1,050 with a balance due of $650.1
        ¶35    On April 22, 2010, Attorney Strouse met with Y.W. and
told her she owed him an additional $700.                         Attorney Strouse
later told the OLR that Y.W. agreed to pay the extra $50, a
claim       Y.W.    disputes.       Attorney      Strouse    agreed    to     accept   two

post-dated checks, each in the amount of $350, as payment, now
reflecting a total cost of representation of $1,100.
        ¶36    The    same   day,    Attorney      Strouse    filed     the    requisite
bankruptcy schedules with the bankruptcy court and certified to
the court that he was charging Y.W. $750 for legal services, of
which $50 had been paid, with a balance due of $700.
        ¶37    Y.W. filed a grievance claiming that Attorney Strouse
agreed to represent her for a fee of $500.                        Attorney Strouse
denied that he would have agreed to a $500 fee.




        1
       Attorney Strouse paid $300 for the bankruptcy filing fee
and $28 for the purchase of three credit reports from the $400
he had received from Y.W.



                                             12
                                                                            No.     2013AP1619-D



        ¶38    The referee found that "the testimony of [Y.W.] on the
total    amount       of    fees   was     not          credible,"    but   concluded       that
Attorney Strouse violated SCR 20:1.5(b)(1) (Count Five).
        ¶39    On     appeal,      Attorney             Strouse      maintains      that     the
April 15       billing        statement            sent      to    Y.W.     satisfies        the
requirements of SCR 20:1.5(b)(1).                        We disagree.
        ¶40    The    referee      found       that       Attorney     Strouse      agreed    to
represent Y.W. for $1,050, consistent with his standard fee for
a Chapter 7 bankruptcy proceeding, and that Attorney Strouse did
not "provide [Y.W.] with a written document stating the scope of
the representation to be provided and the basis of the fee of
$1,050."        The evidence supports the referee's findings and we

accept them.
        ¶41    The barebones billing statement sent to Y.W. does not
satisfy       the    requirements        of    SCR 20:1.5(b)(1),            which     required
Attorney Strouse to provide to Y.W., in writing, the scope of
the representation and the basis or rate of the fee.                                   Nor, to
the extent there was a change in the fee from $1,050 to $1,100,
does the billing statement adequately denote the change in the
basis    or    rate    of    the     fee      or    expenses.         We    agree    with    the
referee's           conclusion        that              Attorney       Strouse        violated
SCR 20:1.5(b)(1) in his representation of Y.W.
        E.J. and S.J.
        ¶42    Attorney Strouse next appeals the referee's conclusion
that     Attorney          Strouse       violated           SCR 20:1.2(a)         (Scope      of
Representation)            and     SCRs       20:1.4(a)(2),            20:1.4(a)(4),         and
20:1.4(b) (Communication) in his representation of E.J. and S.J.
                                                   13
                                                                               No.     2013AP1619-D



He     contends       that    Referee      Ferguson         fails       to     make     necessary
credibility           determinations            to    support           his     findings        and
conclusions.          We disagree.
        ¶43     In 2009, E.J. and S.J. retained Attorney Strouse to
file a Chapter 7 bankruptcy proceeding for them.                                     The parties
disagree as to whether Attorney Strouse also agreed to represent
them    in     an     adversary      proceeding        involving         the     discharge      of
E.J.'s student loans.                E.J. and S.J. claim there was such an
agreement.            Attorney Strouse denies it; he claims they had a
limited       agreement      whereby       he     would      look       into    the     issue    of
potentially representing them on the discharge of the student
loan and evaluate the likelihood of success of such a claim.

        ¶44     On August 1, 2009, E.J. and S.J. paid Attorney Strouse
$750.     No written fee agreement was executed.                              It is undisputed
that Attorney Strouse filed a Chapter 7 bankruptcy petition on
the    clients'        behalf,    which      proceeded         without         incident.        In
November 2009, when E.J. and S.J. sent Attorney Strouse a final
check for his services, however, they inquired about the student
loan discharge.              In early January 2010, E.J. and S.J. hand-
delivered        to    Attorney      Strouse's         office       a    letter        expressing
concern about Attorney Strouse's failure to return their calls
or communicate about the bankruptcy matter and the student loan
issue.        Attorney Strouse did not respond.
        ¶45     On    January    31,      2010,      E.J.    and    S.J.       again    wrote    to

Attorney        Strouse      about     the      student       loan       issue,        requesting
information regarding a hearing date.                        Attorney Strouse did not
respond.         On    February      4,    2010,      E.J.    sent       another       letter    to
                                                14
                                                                           No.     2013AP1619-D



Attorney Strouse regarding the student loan issue.                                     Attorney
Strouse did not respond.
       ¶46       Finally, E.J. and S.J. claim that on April 8, 2010,
they       met    with    Attorney       Strouse    to    discuss    the     student          loan
matter.           At this meeting, they say Attorney Strouse admitted
that he missed a relevant filing date and returned their file.
Attorney Strouse refutes this claim.
       ¶47       During the ensuing disciplinary proceeding, Attorney
Strouse told the OLR that he had prepared and delivered a legal
research memorandum to E.J. and S.J. addressing the student loan
issue.           E.J. and S.J. deny receiving any such memorandum and
deny that Attorney Strouse discussed the contents of such a memo

with them.
       ¶48       The referee concluded that, by failing to consult with
E.J. and S.J. regarding the means by which the objectives of the
representation were to be pursued, including the discharge of
student loan debt, Attorney Strouse violated SCR 20:1.2(a)2 and
SCR    20:1.4(a)(2)3            (Count     Six).         In   addition,          the    referee
concluded         that,    by    failing     to    explain    to    E.J.    and        S.J.   the
issues       associated         with   the   discharge        of   student        loan    debt,

       2
       SCR 20:1.2(a) provides, in relevant part, "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."
       3
       SCR 20:1.4(a)(2) provides that a lawyer shall "reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."



                                              15
                                                                            No.    2013AP1619-D



including         the     cost     to    pursue      an    adversary       proceeding,       the
likelihood of success of such efforts, and the results of his
research into the viability of such a claim, Attorney Strouse
failed to explain matters sufficiently to enable E.J. and S.J.
to make informed decisions regarding the representation.                                  In so
doing, Attorney Strouse violated SCR 20:1.4(b)4 (Count Seven).
In addition, the referee concluded that, by failing to respond
to the multiple requests for information from E.J. and S.J.,
including         letters       dated    November         7,    2009,    January     4,    2010,
January          31,    2010,     and    February         4,     2010,    Attorney       Strouse
violated SCR 20:1.4(a)(4)5 (Count Eight).
       ¶49       Attorney Strouse appeals, claiming, inter alia, that

the referee's findings are insufficient to support these charges
and that his credibility determinations are clearly erroneous.
       ¶50       The     referee       found   that       that    E.J.    and     S.J.    sought
Attorney          Strouse's      representation           in     filing     for    Chapter     7
bankruptcy         and    to     discharge      E.J.'s         student    loan    debt.      The
referee      found       that    "[b]oth       [E.J.      and    S.J.]    offered     credible
testimony there was such an agreement."                           The referee explicitly
stated that, "[h]aving weighed the contradictory testimony and
evidence on the issue of the scope of representation, I did not
find       the    testimony       of    Strouse      to    be     credible."         (Emphasis

       4
       SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
       5
       SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for information."



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added.)           The    referee      found    that    Attorney      Strouse        failed       to
respond to E.J.'s and S.J.'s repeated requests for information
related to the discharge of the student loan.                            The referee found
that     Attorney         Strouse      never    consulted         with    E.J.      and        S.J.
concerning          the     means       by     which        the    objectives         of        his
representation were to be pursued to secure the discharge of the
student loan.             The referee found that Attorney Strouse never
explained         to    E.J.    and    S.J.    the     issues      associated       with        the
discharge of the student loan debt, the costs of pursuing any
adversary proceedings, the likelihood of success, or the results
of any research he had done.                    The referee found that Attorney
Strouse never explained matters sufficiently to E.J. and S.J. to

enable them to make informed decisions regarding the student
loan discharge.             The evidence supports these findings and we
adopt them.
       ¶51    Attorney Strouse contends that this is not enough and
proceeds to outline a number of additional factual findings he
thinks the referee should have made.                         He reminds the court that
the    "testimony,             documentation,          and     argument       the      parties
presented         to      Referee      Ferguson       was     substantial        and       hotly
contested in many respects."                    He claims that Referee Ferguson
failed       to    make     necessary         credibility         determinations          or     to
include specific findings of fact to support his conclusions of
law.     He suggests that Referee Ferguson's finding that he "did

not find the testimony of Strouse to be credible" is somehow
inadequate         and    "does     not   go    to    the     merits     of   the    parties'
contested arguments."
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      ¶52    From     our        perspective,       Attorney      Strouse             simply
disagrees     with    the    referee's       credibility       determinations,            as
evidenced by his claim that it is "contrary to the evidence."
He   suggests    that      the    referee    should    have     made     a    different
credibility determination.           Attorney Strouse states:

      [E.J.'s] credibility must be doubted in this respect
      as well as others concerning the representation.
      First, she has a mental condition that affects memory
      and ability to remember the dates of events. This was
      demonstrated numerous times throughout the hearing.
      She denied meeting with Strouse on July 22, 2009,
      which was corroborated by Strouse's calendar and the
      intake questionnaire that was completed and dated by
      her.   She could not recall the date of the meeting
      between [E.J. and S.J.] and Strouse on September 12,
      2009, to sign the bankruptcy petition.      She denied
      meeting with Strouse on January 20, 2009, an event
      listed on Strouse's calendar maintained in the normal
      course of business.   Further, she was fixated on the
      adversary proceeding as the method to discharge her
      student loans. This is demonstrated in the fact that
      she brought case law with her at the initial meeting
      on the issue, allegedly other case law in a subsequent
      meeting, and in her written communications to Strouse.
(Record citations omitted.)             Attorney Strouse thus claims that
he is more credible than E.J.               He asks the court to find Referee

Ferguson's      credibility        determination      with       respect         to     E.J.
clearly erroneous.

      ¶53    We reject this invitation to disregard the referee's
credibility determination.            The referee is the ultimate arbiter
of the facts and credibility of witnesses and there is no reason
to   deem    these    findings      clearly     erroneous.         E.J.       was       very
forthright      in   her    testimony       about   the   fact    that       a    medical
condition affected her ability to recall specific details such


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as dates, but her testimony as to the substance of what occurred
was     clear        and    bolstered       by    documentary           evidence,           including
letters to Attorney Strouse.                     The referee's findings of fact and
conclusions of law relating to this matter are substantiated by
clear and convincing evidence from the record and we adopt them.
        ¶54     We    turn     to   the    question       of     appropriate              discipline.
The OLR sought and the referee recommends a 60-day suspension.
Attorney Strouse seeks a private reprimand or, at most, a public
reprimand.            Attorney Strouse reasons that the matter of F.E.
involved        minor        technical          violations        and     that            the    other
allegations are similarly de minimus.
        ¶55     Even        with    our     decision        to     dismiss            the       alleged

violation of SCR 20:8.4(c) (Count Four), the record before this
court and the concept of progressive discipline support a 60-day
suspension.           The record here suggests that Attorney Strouse is a
busy,    aggressive          lawyer       who    serves     an    important           role      in   the
Milwaukee        legal        community,          providing       affordable              bankruptcy
representation.                It     bears        noting        that     Attorney              Strouse
successfully obtained bankruptcy discharges for all the clients
at issue in this proceeding.                     We also accept and acknowledge the
mitigating           fact    that     Attorney         Strouse     has     taken            steps    to
establish        better       written       fee    communications              in     his       office.
However, the record before us also reveals a persistent pattern
of    failure         to    abide    by     the    requirements           of        our     rules     of

professional conduct.               Attorney Strouse has thrice been publicly
reprimanded by this court, once for conduct that also resulted
in being suspended by a bankruptcy court.
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        ¶56    While the misconduct committed in this matter is not
identical,       we      observe    a        continuing      pattern      of    disregard     of
supreme court rule requirements.                        Representation anticipated to
exceed        $1,000     requires        a    written        fee    communication.           See
SCR 20:1.5.            Unilateral        changes        to   fees    charged       to   clients
certainly require more than a single line on an invoice.                                      We
note,     with         some      concern,          repeated        discrepancies        between
disclosures         on   bankruptcy           filings    and       invoices     submitted      to
clients, a factor that adds to client confusion.                               As the referee
observed, "by failing to accept responsibility for his actions
and   attempting          to    shift        the   blame     to     others     for    the    poor
handling of these matters, Attorney Strouse demonstrates that he

lacks both remorse and insight into the impact of his repeated
violations on his clients and other third parties."
        ¶57    We acknowledge that none of the cases cited by the
parties       are      directly     on       point.          This    is   not      unusual     in
disciplinary matters.               We find In re Disciplinary Proceedings
Against        Kitchen,        2004 WI 83,          273 Wis. 2d 279,           682 N.W.2d 780
provides        useful         guidance,       and      ultimately,       we       accept     the
referee's recommendation for a 60-day suspension as consistent
with the principles of progressive discipline.
        ¶58    Finally, we consider Attorney Strouse's objection to
the costs of this proceeding.                      We consider the factors set forth
in SCR 22.24(1m), which include the number of counts charged,
contested, and proven; the nature of the misconduct; the level
of discipline sought and recommended; cooperation with the OLR;
prior discipline; and other relevant circumstances.                                  We are not
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persuaded that this scope of the appeal was enlarged due to
Referee    Ferguson's       insufficient     credibility     determinations       or
failure    to     discuss   the   parties'    arguments.          Full   costs   are
appropriate in this vigorously litigated case.
     ¶59     IT IS ORDERED that the license of Paul A. Strouse to
practice law in Wisconsin is suspended for a period of 60 days,
effective August 14, 2015.
     ¶60     IT IS FURTHER ORDERED that within 60 days of the date
of this order, Paul A. Strouse shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $67,562.12.
     ¶61     IT    IS   FURTHER   ORDERED     that    Paul   A.    Strouse      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.
     ¶62     IT    IS   FURTHER    ORDERED     that     compliance       with    all
conditions of this order is required for reinstatement.                          See
SCR 22.28(2).
     ¶63     ANN WALSH BRADLEY, J., did not participate.




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