                                                              2015 WI 81

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2014AP2578-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Joseph J. Kaupie, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Joseph J. Kaupie,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST KAUPIE

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

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2015 WI 81
                                                                   NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2014AP2578-D


STATE OF WISCONSIN                             :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Joseph J. Kaupie, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
             Complainant,
                                                                   JUL 15, 2015
       v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Joseph J. Kaupie,

             Respondent.




       ATTORNEY      disciplinary        proceeding.      Attorney's           license
suspended.


       ¶1    PER   CURIAM.    We    review,    pursuant       to     Supreme      Court
Rule    (SCR)   22.17(2),    the    report    of    the    referee,        Robert      E.
Kinney, recommending that the court suspend Attorney Joseph J.
Kaupie's license to practice law in Wisconsin for a period of
five months for professional misconduct in connection with four
client matters.       No appeal has been filed.
       ¶2    We approve and adopt the referee's findings of fact
and    conclusions    of   law.     We   conclude     that    Attorney        Kaupie's
                                                                                  No.        2014AP2578-D



misconduct         warrants         a     five-month         license       suspension          together
with the imposition of full costs, which total $2,309.41 as of
March 31, 2015.
        ¶3     Attorney            Kaupie     was        licensed      to     practice             law    in
Wisconsin in 1999.                  He resides in Wausau.                     Attorney Kaupie's
license has been administratively suspended since October 31,
2011, for his failure to pay mandatory State Bar dues and his
failure       to     file       a    trust         account         certification,            and     since
June 12,       2012,      for       failure        to     comply      with       continuing          legal
education requirements.                      In addition, on March 15, 2012, this
court temporarily suspended Attorney Kaupie's license for his
willful       failure         to    cooperate        in      Office    of    Lawyer          Regulation

(OLR)        investigations             concerning           his    conduct.            He     has       not
previously been the subject of disciplinary proceedings.
        ¶4     On     November          6,    2014,          the    OLR     filed       a     complaint
alleging           that       Attorney         Kaupie          committed          14        counts        of
professional         misconduct.              By     order         dated    December         15,     2014,
Robert E. Kinney was appointed referee.                                On March 9, 2015, the
parties       filed       a    stipulation           and      no     contest      plea        agreement
whereby       Attorney         Kaupie        pled       no    contest       to    the        misconduct
alleged       in    the       complaint.            Attorney        Kaupie       acknowledged            the
accuracy of the complaint's factual allegations and the parties
jointly        requested           that      the    referee         recommend          a     five-month
suspension.

        Matter of D.B. (Counts One-Three)
        ¶5     In November 2010, Attorney Kaupie was appointed by the
Office of the State Public Defender (SPD) to represent D.B. on
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D.B.'s appeal from his conviction for sexual assault.                     Attorney
Kaupie failed to respond to telephone messages and failed to
respond to written communications from his client and from the
SPD.       Attorney Kaupie had no contact at any time with D.B.
regarding      his   appeal   and,    as   a    result,    D.B.'s     appellate
deadlines lapsed.        The SPD eventually removed Attorney Kaupie
from its list of attorneys eligible to receive post-conviction
appointments and a grievance was filed.              Attorney Kaupie then
failed to respond to repeated inquiries from the OLR concerning
the grievance.        The referee concluded, based on the parties'
stipulation,      that   Attorney    Kaupie's    conduct    in     this     matter
violated SCR 20:1.3,1 SCR 20:1.4(a)(3) and (4),2 and SCR 22.03(2)
and (6),3 enforced via SCR 20:8.4(h).4


       1
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
       2
       SCR 20:1.4(a)(3) and (4) provide that a lawyer shall "keep
the client reasonably informed about the status of the matter"
and "promptly comply with reasonable requests by the client for
information."
       3
           SCR 22.03(2) and (6) provide:

            (2) Upon    commencing  an   investigation,    the
       director shall notify the respondent of the matter
       being investigated unless in the opinion of the
       director the investigation of the matter requires
       otherwise.    The respondent shall fully and fairly
       disclose all facts and circumstances pertaining to the
       alleged misconduct within 20 days after being served
       by ordinary mail a request for a written response.
       The director may allow additional time to respond.
       Following receipt of the response, the director may
       conduct further investigation and may compel the
       respondent to answer questions, furnish documents, and
                                                        (continued)
                                       3
                                                              No.    2014AP2578-D



     Matter of P.E. (Counts Four-Seven)
     ¶6     In 2010, Attorney Kaupie was appointed by the SPD to
represent P.E. in post-conviction proceedings stemming from his
conviction, on entry of a guilty plea, to burglary, receiving
stolen property, criminal damage to property, and two counts of
armed robbery.        Attorney Kaupie did not file a statement on
transcript or a brief in the case.            He disregarded the court of
appeal's delinquency notice regarding his failure to file P.E.'s
brief.     Attorney Kaupie was removed from the appeal and the SPD
was ordered to appoint replacement counsel.               Attorney Kaupie
then failed to send successor counsel P.E.'s file and failed to
respond to repeated inquiries from the OLR regarding the ensuing

grievance investigation.          The referee concluded, based on the
parties'    stipulation,   that    Attorney    Kaupie's   conduct      in    this




     present   any  information           deemed   relevant     to     the
     investigation.

            . . . .

          (6) In the course of the investigation, the
     respondent's   wilful  failure   to  provide  relevant
     information, to answer questions fully, or to furnish
     documents and the respondent's misrepresentation in a
     disclosure are misconduct, regardless of the merits of
     the matters asserted in the grievance.
     4
       SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."



                                      4
                                                                No.        2014AP2578-D



matter violated SCR 20:1.3, SCR 20:1.16(d),5 SCR 20:3.4(c),6 and
SCR 22.03(2) and (6), enforced via SCR 20:8.4(h).
       Matter of Y.M. (Counts Eight-Ten)
       ¶7      In 2010, Attorney Kaupie was appointed by the SPD to
represent Y.M. in post-conviction proceedings stemming from his
conviction, on entry of a guilty plea, to several drug-related
crimes       and    one   count     of   resisting/obstructing        an     officer.
Attorney Kaupie did not file a brief or do meaningful work to
advance Y.M.'s appeal.            Y.M. briefly met with Attorney Kaupie in
the prison but had no further communication with him.                        Y.M. was
unable to contact Kaupie by telephone or by mail and eventually
learned that his appeal had been dismissed because of Attorney

Kaupie's failure to file a brief on his behalf.                 Attorney Kaupie
then       failed   to    respond   to   repeated   inquiries    from        the   OLR
regarding      the    ensuing     grievance    investigation.         The     referee


       5
           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
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."



                                           5
                                                                             No.     2014AP2578-D



concluded,      based     on        the    parties'        stipulation,       that     Attorney
Kaupie's       conduct     in       this     matter        violated     SCR        20:1.3,    SCR
20:1.4(a)(3) and (4), and SCR 22.03(2) and (6), enforced via SCR
20:8.4(h).
     Matter of J.W. (Counts 11-14)
     ¶8        In December 2009, Attorney Kaupie was appointed by the
SPD to represent J.W. in post-conviction proceedings stemming
from J.W.'s conviction for second degree sexual assault of a
child.     Attorney Kaupie handled a post-conviction motion but
failed    to    respond        to    multiple          directives     from    the     court     of
appeals relating to J.W.'s appeal.                        In August 2011, the court of
appeals issued an order rejecting a no-merit report filed by

Attorney       Kaupie     and       ordering           Attorney    Kaupie     to     pursue     an
appeal.    Attorney Kaupie did not respond to the court's order or
to communications from the SPD.                           In September 2011, the SPD
suspended Attorney Kaupie "[b]ased on your pattern of failing to
communicate       with     the       court,        our     appellate    office        and     your
client."
     ¶9        Attorney Kaupie then failed to send successor counsel
J.W.'s file and failed to respond to repeated inquiries from the
OLR regarding the ensuing grievance investigation.                                 The referee
concluded,      based     on        the    parties'        stipulation,       that     Attorney
Kaupie's       conduct         in         this     matter         violated     SCR        20:1.3,
SCR 20:1.16(d),          SCR        20:3.4(c),          and   SCR     22.03(2)       and     (6),

enforced via SCR 20:8.4(h).
     ¶10       Attorney        Kaupie            has     stipulated      that        he      fully
understands the misconduct allegations; that he understands his
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                                                                          No.     2014AP2578-D



right      to        contest      this     matter;        that      he   understands      the
ramifications should the court impose a five-month suspension;
and that his entry into the stipulation is made knowingly and
voluntarily           and    represents          his     admission       of     the    alleged
misconduct and his agreement with the level of discipline sought
by   the      OLR.         The   parties    asked       the   referee     to    approve    the
stipulation          and    file    a     report       finding   facts    and     misconduct
consistent with the stipulation and recommending that Attorney
Kaupie's license to practice law be suspended for five months.
        ¶11     On March 11, 2015, the referee filed his findings of
fact, conclusions of law, and recommendation in which he adopted
the parties' stipulated findings of fact, determined that the

OLR had proven by clear, satisfactory, and convincing evidence
that    Attorney        Kaupie      had    engaged       in   the    alleged     misconduct,
recommended that Attorney Kaupie's license to practice law be
suspended for five months, and recommended imposition of full
costs.          No    appeal      was    filed     from    the   referee's       report    and
recommendation.             Restitution is neither sought nor recommended
in this matter.
        ¶12     This court will affirm a referee's findings of fact
unless they are clearly erroneous, but conclusions of law are
reviewed de novo.                See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                                This
court      is        free    to     impose       whatever        discipline       it    deems
appropriate, 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.
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       ¶13   As    the       referee         observed,          abandonment               of     clients,
especially those who are vulnerable due to incarceration and
indigency, is a serious matter and Attorney Kaupie's cooperation
with the ensuing investigation was "abysmal."                                    The referee was
mindful, however, that Attorney Kaupie had no prior disciplinary
history      and        that     Attorney              Kaupie     acknowledged                   complete
culpability for his misconduct.
       ¶14   The     stipulation            discloses         that    in        2009,          when    this
misconduct commenced, Attorney Kaupie was a sole practitioner
with   no    office       staff,       practicing          primarily            in     the       area    of
criminal     defense.           That     year,         Attorney      Kaupie's             mother,       who
suffered from Alzheimer's disease, experienced declining health.

Attorney Kaupie spent considerable time caring for his mother,
whose condition increasingly needed constant supervision.                                               The
stipulation discloses that Attorney Kaupie essentially stopped
practicing     law      to     care     for       his    mother,          who    passed          away    in
November 2014.
       ¶15   We     adopt        the         referee's          findings             of        fact     and
conclusions        of     law     and        determine          that,       in       view         of    the
circumstances           presented,           a     five-month             suspension             is     the
appropriate        discipline           for       Attorney        Kaupie's                professional
misconduct.        See In re Disciplinary Proceedings Against Diamon,
2001   WI    28,     242       Wis.     2d       110,    624     N.W.2d          147       (five-month
suspension     for      failure        to    act       with     reasonable           diligence          and
promptness in representing clients, failure to communicate with
clients,      terminating              representation                of         clients           without
performing any legal services or refunding any unearned fees,
                                                   8
                                                                      No.     2014AP2578-D



and failure to cooperate in the misconduct investigation).                              We
find no reason to diverge from our general policy of imposing
full costs in this matter.
        ¶16     IT IS ORDERED that the license of Joseph J. Kaupie to
practice law in Wisconsin is suspended for a period of five
months, effective the date of this order.
        ¶17     IT IS FURTHER ORDERED that within 60 days of the date
of this order, Joseph J. Kaupie shall pay to the Office of
Lawyer        Regulation      the   costs   of    this       proceeding,      which    are
$2,309.41.
        ¶18     IT    IS    FURTHER    ORDERED        that    the    March     15,    2012
temporary suspension of Joseph J. Kaupie's license to practice

law in Wisconsin, due to his willful failure to cooperate with
the OLR's grievance investigation in this matter, is lifted.
The   administrative          suspensions    imposed         upon   Attorney    Kaupie's
license for failure to pay mandatory bar dues, failure to file a
trust     account          certification,       and    failure      to      comply    with
continuing legal education requirements, however, will remain in
effect until each reason for the administrative suspension has
been rectified, pursuant to SCR 22.28(1).
        ¶19     IT IS FURTHER ORDERED that, to the extent he has not
already        done   so,     Joseph   J.   Kaupie       shall      comply     with    the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.

        ¶20     IT    IS    FURTHER    ORDERED        that    compliance       with   all
conditions of this order is required for reinstatement.                                See
SCR 22.28(2).
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    No.   2014AP2578-D




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