                                                              2013 WI 32

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2010AP1348-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against David A. Goluba, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Appellant,
                             v.
                        David A. Goluba,
                                  Respondent-Respondent.


                            DISCIPLINARY PROCEEDINGS AGAINST GOLUBA

OPINION FILED:          April 17, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the Office of Lawyer Regulation, there were briefs by
Sheryl St. Ores, assistant litigation counsel.


       For the respondent-respondent, there was a brief filed by
David A. Goluba, pro se.
                                                                       2013 WI 32
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.    2010AP1348-D


STATE OF WISCONSIN                           :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David A. Goluba, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
             Complainant-Appellant,
                                                               APR 17, 2013
       v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
David A. Goluba,

             Respondent-Respondent.




       ATTORNEY    disciplinary      proceeding.        Attorney's         license

suspended.


       ¶1   PER CURIAM.         The Office of Lawyer Regulation (OLR)

appeals the report of James W. Mohr, Jr., referee, recommending
that   Attorney   David    A.   Goluba's   license     to    practice      law     in

Wisconsin be suspended for six months and that he be ordered to
pay    restitution    to    three    aggrieved     parties       including       the

Wisconsin Lawyers' Fund for Client Protection (the Fund).                        The
OLR alleged seven counts of misconduct and sought revocation of

Attorney     Goluba's      license    to   practice       law,      along       with
                                                                           No.     2010AP1348-D



restitution.        The OLR contends the referee erred with respect to

his finding that Attorney Goluba did not have ongoing knowledge

of the misappropriation of certain client funds and erred in

concluding that the OLR failed to establish that Attorney Goluba

committed misconduct in violation of SCR 20:8.4(c).                                  The OLR

also appeals the recommended sanction, asserting that revocation

is appropriate.          The OLR seeks assessment of the full costs of

this proceeding.

       ¶2     We    adopt   the     referee's         findings       of     fact     and     his

conclusions        of    law,    with     the       exception       of     one    conclusion

relating to Count 1, as will be discussed herein.                                We conclude

that   the    referee's         reasoning      with      respect     to     discipline       is

persuasive, and we agree that a six-month suspension of Attorney

Goluba's license to practice law in Wisconsin is appropriate

discipline for his misconduct.                      We   agree      with    the     referee's

recommendations regarding            restitution.              Attorney      Goluba shall

reimburse the Fund in the amount of $30,000 plus legal interest,

shall pay restitution to The Salvation Army in the amount of
$2,655      for    its   legal    fees    incurred        in   connection          with     this

matter, and shall pay $145 to client S.R.                          We further conclude
that it is appropriate to reduce the costs of this disciplinary

proceeding.
       ¶3     Attorney      Goluba       was       admitted    to     practice        law     in

Wisconsin in 1984.          He has no prior disciplinary history.                         He is
a solo practitioner in Ripon, Wisconsin.                       His wife, Janice, has

long served as his legal secretary.


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        ¶4        The complaint stems from two separate client matters:

the Estate of W.S. and the matter of S.R.                                 On August 18, 2008,

Attorney Goluba's license was suspended for failure to cooperate

with     the       OLR   investigations             into        the       alleged        misconduct.

Attorney          Goluba's       law    license           was        also        administratively

suspended on June 17, 2009, for noncompliance with Continuing

Legal        Education       (CLE)     reporting          requirements             and       again    on

March 11, 2011, for nonpayment of State Bar dues.                                       His license

remains suspended.

        ¶5        Attorney    Goluba         came        to    the        OLR's     attention        in

February 2007 when the Honorable Dee R. Dyer, Outagamie County

circuit court,           wrote    a    letter       asking          the    OLR    to     investigate

Attorney Goluba's handling of the Estate of W.S. because of a

missing bequest owed The Salvation Army.                                   Subsequently, R.L.,

the    personal       representative          of     the       Estate       (who       is    also    the

mother       of    Janice    Goluba     and     Attorney            Goluba's       mother-in-law)

filed a grievance in same matter.

        ¶6        On June 2, 2010, the OLR filed a seven-count complaint
against Attorney Goluba seeking revocation.                                 He filed an answer

on June 21, 2010, proceeding pro se.                           Referee Mohr was appointed
on July 19, 2010.             Evidentiary proceedings encompassed ten days

and were          conducted    between        August          31,   2011,     and       November     1,
2011.        The referee issued a thorough report and recommendation

on February 11, 2012.             The OLR appeals.
       ¶7         A referee's findings of fact are to be affirmed unless

they    are       clearly    erroneous.             In    re    Disciplinary             Proceedings

Against        Inglimo,       2007      WI     126,           ¶5,     305     Wis. 2d 71,            740
                                                3
                                                              No.    2010AP1348-D



N.W.2d 125.           A referee's   conclusions   of   law   are    reviewed de

novo.       Id.

        ¶8        The allegations, findings, and conclusions regarding

the matter of S.R. are uncontested on appeal, so we address them

first.        S.R.     was   personal   representative   of    her    husband's

estate.       She hired Attorney Goluba to help her with the probate.

S.R. delivered to Attorney Goluba titles to three vehicles that

were in her husband's name, asking Attorney Goluba to have them

retitled in her name.          Attorney Goluba contends he did the work

and mailed all the paperwork, together with S.R.'s check for the

title transfer fees, to the Department of Motor Vehicles (DMV)

in Madison.         S.R. never received the titles.

       ¶9     S.R. made repeated telephone calls to the Goluba Law

Office asking about the titles.              Attorney Goluba testified that

the DMV advised his office that any title applications would be

processed in the order they were received; he thought they were

still being processed by the DMV.              Both Golubas testified they

gave that information to S.R.

       ¶10    After almost 18 months of waiting, S.R. went to the
DMV in Madison and changed the names on the titles herself.

Attorney Goluba claims that when S.R. stopped calling him, he
assumed that she finally had received the titles back from the

DMV.
       ¶11    The OLR alleged and the referee agreed that Attorney

Goluba committed three counts of misconduct in connection with

this matter.           By failing to follow up on the missing titles,


                                         4
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Attorney Goluba violated SCR 20:1.31 (Count 4).             By failing to

return    telephone     calls    to   S.R.,   Attorney    Goluba     violated

SCR 20:1.4(a)(4)2 (Count 5).          Referee Mohr, however, recommended

the court dismiss Count 6 which alleged that, by failing to

return S.R.'s original title documents and fees, Attorney Goluba

violated SCR 20:1.16(d).3        The referee concluded that the OLR had

failed    to   prove   this    violation.     Attorney   Goluba    could   not

return the original titles to S.R. because he no longer retained

them; the referee found that he did send them to the DMV.                  The

referee agreed that by failing to timely respond to the OLR's

investigation     of    this    grievance,    Attorney    Goluba     violated

SCR 22.03(2),4 enforceable via SCR 20:8.4(h)5 (Count 7).

     1
       SCR 20:1.3 states that a "lawyer shall act with reasonable
diligence and promptness in representing a client."
     2
       SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply    with   reasonable  requests  by   the   client   for
information; . . . ."
     3
         SCR 20:1.16(d) states:

          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.
     4
         SCR 22.03(2) states as follows:

          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
                                       5
                                                                    No.   2010AP1348-D



        ¶12    The OLR does not dispute these findings or conclusions

on appeal.           We conclude that the record supports the facts as

found by the referee, and we adopt his findings and conclusions

of   law      relating   to     S.R.   The      referee    recommended     the   court

direct Attorney Goluba to pay restitution of $145 to client S.R.

for the legal fees he charged her.                    The OLR concurs with the

recommended restitution, and we accept this recommendation as

well.

      ¶13      The     second     client     matter       is   significantly     more

complicated       and    was    litigated    extensively       in   the   proceedings

before the referee.

      ¶14      On January 11, 2004, W.S. died.                  W.S. left a will

naming R.L. as his personal representative.                    R.L. is the mother

of Janice Goluba, Attorney Goluba's wife.                       Janice Goluba had

been Attorney Goluba's legal secretary since 1984.                          Attorney

Goluba had previously done legal work for R.L. and did R.L.'s




      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   present   any
      information deemed relevant to the investigation.
      5
       SCR 20:8.4(h) states 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); . . . ."

                                            6
                                                                  No.     2010AP1348-D



taxes every year.         Attorney Goluba never charged R.L. legal fees

for this work.       He only collected out-of-pocket expenses.

     ¶15     R.L.    retained      Attorney     Goluba   as     her     attorney    to

handle the probate of the W.S. Estate.                    The will listed 13

beneficiaries, including R.L.             At Attorney Goluba's suggestion,

R.L. deposited $424,156.69 of the estate's funds into Attorney

Goluba's trust account on May 25, 2004, reportedly to facilitate

payment of the bequests.           The OLR deems this highly significant,

noting this was the first time Attorney Goluba recommended R.L.

deposit monies directly into his trust account.

     ¶16     All    the   checks    to    beneficiaries,      cover      letters    to

beneficiaries,      and    beneficiary        receipts   were    prepared.         The

checks were signed by Janice Goluba, and the letters were signed

by Attorney Goluba.         All of the letters and checks were mailed

on or about May 29, 2004, with one exception.

     ¶17     W.S. left The Salvation Army a bequest of $30,000.

Janice Goluba prepared and signed a check to The Salvation Army

in the amount of $30,000.                It was never sent.             Instead, the
$30,000 was misappropriated and withdrawn from Attorney Goluba's

trust account.
     ¶18     Between May and October 2004, in a variety of checks

each made payable to Attorney Goluba, the money was withdrawn in
odd amounts of a few thousand dollars, until all $30,000 was

used up.      The money was used to pay expenses of the Goluba
household.     The Golubas were extremely short of cash that year,

in part because of the economy and in part because Attorney

Goluba had significant health problems that year.
                                          7
                                                                          No.   2010AP1348-D



        ¶19    In March 2005 The Salvation Army began calling and

writing Attorney Goluba wanting to know when it would receive

its $30,000 bequest.             After receiving no response, The Salvation

Army     hired        Attorney    Charles         Maris     in    December      2005,    who

contacted       Attorney       Goluba.       At    one      point,    Attorney    Goluba's

office sent Attorney Maris a copy of a letter of transmittal

with a copy of a check for $30,000 made payable to The Salvation

Army.         However, only       a   copy    of      the   front    of   the    check   was

enclosed, not the back of the check.

       ¶20     Attorney Maris requested a copy of the back of the

check.        When he did not receive it, he eventually entered an

appearance in the probate matter and a hearing was conducted

before        Judge     Dyer     in   Outagamie          County      circuit     court   on

January 19, 2007.

       ¶21     Judge Dyer asked Attorney Goluba for proof that The

Salvation Army had been paid.                     Attorney Goluba represented to

the court that The Salvation Army had been paid and stated he

had a copy of the cancelled check.                     Judge Dyer ordered Attorney
Goluba to produce a copy of both sides of the cancelled check

within seven days and to furnish a copy to opposing counsel.
       ¶22     Attorney Goluba could not produce a copy of the back

side of the check.             Attorney Goluba asserted this was the first
time    he     realized     there     was    a     significant       problem     with    The

Salvation        Army      bequest.              He      realized      his      wife     had
misappropriated the funds.                  Janice Goluba has not denied this

and repeatedly invoked her Fifth Amendment rights during her

testimony at the evidentiary hearing, even after being advised
                                              8
                                                                         No.     2010AP1348-D



the referee could draw adverse inferences from her refusal to

testify.       The OLR maintains Attorney Goluba knew all along that

the funds had been misappropriated.

        ¶23    In     any    event,       approximately         two    weeks     after     the

probate court hearing, the Golubas went together to R.L.'s home.

The parties' versions of what transpired that evening are very

different.

        ¶24    The    OLR    alleges          that   Attorney    Goluba      deceived      and

intimidated R.L. into writing him a check for $30,000 to cover

the   misappropriation.                 The    OLR   alleges    that     Attorney      Goluba

falsely told R.L. that she was personally responsible for this

money       because    she        was   the     personal   representative            for   the

estate.        The OLR contends that, out of fear, R.L. wrote the

check to Attorney Goluba's trust account.

      ¶25     Attorney Goluba admits that he and his wife visited

R.L.'s home, but denies any misrepresentation.                               He says that

R.L. voluntarily offered to write the $30,000 check in order to

protect her daughter, Janice Goluba.                       Attorney Goluba used the
check to pay The Salvation Army.                       In March of 2007, Attorney

Goluba closed his law office.
      ¶26     Attorney Goluba then failed to respond to or otherwise

cooperate       with        the     OLR's       investigation         into     the    ensuing
grievances.          In discovery, Attorney Goluba claimed that most of

his financial records from this time were lost or destroyed.6
        6
       Attorney Goluba did not state that he intentionally
destroyed relevant documents.     He claimed the OLR did not
request certain documents and that older documents were shredded
and some documents were missing.

                                                 9
                                                                   No.       2010AP1348-D



The        OLR    subpoenaed      the      bank     records      and        laboriously

reconstructed         Attorney     Goluba's       trust   and    business       account

transactions.         R.L. later sought and received reimbursement from

the Fund in the amount of $30,000.

       ¶27       The OLR alleged three counts of misconduct relating to

this matter.         Count 1 alleged that by failing to hold in trust,

and converting to his own purposes, $30,000 belonging to the

W.S.       Estate,   Attorney     Goluba    violated      SCR   20:1.15(b)(1)7       and

SCR 20:8.4(c).8         Count 2 alleged that Attorney Goluba violated

SCR    20:8.4(c)      when   he   allegedly       misrepresented       to    R.L.,   the

       7
       Some of the misconduct alleged in Count 1 occurred prior
to July 1, 2004.    Therefore, there was a violation of former
20:1.15(a) as well as the current rule.   Former SCR 20:1.15(a)
applied to misconduct committed prior to July 1, 2004, and
stated, in pertinent part, as follows:

            A lawyer shall hold in trust, separate from the
       lawyer's own property, that property of clients and
       third persons that is in the lawyer's possession in
       connection with a representation or when acting in a
       fiduciary capacity. . . . All funds of clients and
       third persons paid to a lawyer or law firm shall be
       deposited   in    one or   more  identifiable   trust
       accounts . . . ."

       Current SCR 20:1.15(b)(1) (effective July 1, 2004) states:

            Separate account. A lawyer shall hold in trust,
       separate from the lawyer's own property, that property
       of clients and 3rd parties that is in the lawyer's
       possession in connection with a representation.     All
       funds of clients and 3rd parties paid to a lawyer or
       law firm in connection with a representation shall be
       deposited in one or more identifiable trust accounts.
       8
       SCR 20:8.4(c) provides it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."

                                           10
                                                                        No.    2010AP1348-D



personal representative, that she was responsible for paying the

$30,000, thereby inducing her to write a check to his trust

account so that he could reimburse The Salvation Army.                            Count 3

alleged that Attorney Goluba failed to cooperate with the OLR's

investigation,           thereby    violating        SCRs   22:03(2)     and    22.03(6),9

enforceable via SCR 20:8.4(h).

        ¶28       Prior to the evidentiary hearing, Referee Mohr granted

summary judgment to the OLR on Count 3 (W.S. Estate) and Count 7

(S.R.), concluding that Attorney Goluba had failed to cooperate

with        the   OLR   in   both    matters.         Neither    party    appeals     this

conclusion.

        ¶29       Evidentiary       proceedings        were      conducted       on    the

remaining counts between August 31, 2011, and November 1, 2011.

The referee issued his report and recommendation on February 11,

2012.

       ¶30        The   referee's    report     is    thorough    and    well    written.

The referee carefully explains that he considered the voluminous

documentary evidence.               He explains that he insisted on having
R.L. testify in person.               He explains further that while there

were differences between the language in her grievance and her



        9
            SCR 22.03(6) states:

             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.

                                              11
                                                                      No.    2010AP1348-D



subsequent      testimony,         he   believed        R.L.'s    testimony      at   the

hearing.

      ¶31     The   referee       emphasizes      that    the    evidentiary     hearing

lasted ten days and produced thousands of pages of exhibits and

over 2,000 pages of transcript.                   The referee implies that this

was excessive, but does not explicitly make a finding to that

effect.       The OLR staunchly defends the need for "meticulous"

recreation     of    the    financial       records      and    testimony    about    the

Golubas' financial transactions.

      ¶32     The referee emphasizes that he listened carefully to

all of the testimony, read many of the exhibits, re-read the

transcript and his notes of the hearing, and reviewed all of the

briefs submitted by the parties.

      ¶33     Ultimately,         the   referee    found       that   Attorney    Goluba

discovered     The     Salvation        Army     had    not    been   paid   after    the

January 19, 2007 hearing before Judge Dyer, and realized, for

the   first    time,       that    Janice      Goluba    had     misappropriated      the

$30,000 bequest to The Salvation Army.
      ¶34     The referee was not persuaded by the OLR's theory that

Attorney Goluba then preyed on R.L.                    The referee noted that the
OLR had implied R.L. was "confused, fragile, of weak mind and of

even weaker health."               The referee states he "found just the
contrary":

           I found [R.L.] to be charming, intelligent and
      with a remarkably good memory.   She was 87 years old
      when she testified and, like a lot of people that age,
      she wasn't as spry as she used to be.    She felt less
      competent than the actual impression she gave. A lot
      of people, attorney[s], children, grandchildren, and

                                            12
                                                                 No.    2010AP1348-D


      others have worked with and talked to her, but when
      she was testifying, by herself at the hearing, I found
      her remarkably lucid, intelligent, confident, and with
      a good recall of events.    Although her complaint and
      affidavits were somewhat contrary to the testimony she
      gave, I derived almost all of my conclusions from her
      live testimony. I was then able to view and judge her
      credibility the best.
The   referee     "found    no   evidence . . . that          [Attorney]       Goluba

preyed upon [R.L.]."

      ¶35   The   referee    acknowledges       that    the    OLR     produced      a

detailed    spreadsheet     of   each   check   that    went    in     and    out   of

Attorney Goluba's business and trust accounts.                 This spreadsheet

shows that in 2004 the business account was constantly overdrawn

and was kept alive only with the misappropriated funds.

      ¶36   The referee notes, however, that Attorney Goluba does

not dispute any of this.          Attorney Goluba does not dispute that

The Salvation Army never received its check or that the money

was misappropriated from his trust account.              He also agrees that

most, if not all, of the money was used to pay personal expenses

of the Goluba household.          Indeed, the referee noted that "[a]s

far as I can tell, he has admitted this from the beginning."

      ¶37   However, the referee         explicitly     found     that       Attorney

Goluba was not aware of the ongoing misappropriation of funds.

The referee reached this finding based on record evidence and

testimony   of    the   people   involved.       He    found    that    "it    [was]

absolutely clear who ran the details and the business of the

Goluba Law Office.         It was Janice Goluba.              [Attorney Goluba]

trusted her implicitly and gave her responsibility to handle

most of the affairs of the office."             The referee found and the

                                        13
                                                                             No.     2010AP1348-D



record    supports       his     finding          that   Attorney       Goluba      experienced

health    problems       unrelated          to    this    case    and    was       not    able    to

function as efficiently as he had in the past.                                  As a result,

Janice Goluba assumed extensive responsibility for the office

including        keeping       Attorney           Goluba's       calendar,         making        his

appointments,        drafting         his    letters,          making    his    phone      calls,

picking up the mail, taking messages, handling all the billing

and    receipts,     and    making          all    of    the    payments.          The    referee

stated, "In short, other than practicing law, she did everything

else in the Goluba Law Office.                          [Attorney Goluba] trusted her

implicitly and, to the best of his knowledge, she had never

breached that trust."

        ¶38    The   referee       also           made    findings       relating         to     the

relationship between the Golubas and R.L., finding that "[o]ver

the     years     [R.L.]       gave     substantial            sums     of     money      to     her

son . . . and also to her daughter, Janice [Goluba]."

        ¶39    The   referee      explicitly             asked    the    question         whether

Attorney Goluba knew Janice Goluba had taken the $30,000 bequest
and, based on the evidence from the hearing, found that he did

not.
        ¶40    The referee rejected the OLR's theory that Attorney

Goluba        deceived     and     intimidated            R.L.        into     producing         the
additional $30,000 used to reimburse The Salvation Army.                                         The

referee       acknowledged       R.L.       stated       that     happened      in       both    her
grievance and in an affidavit signed by her, but the referee

noted    that     she    did     not    prepare          either       document;      they       were

prepared by an attorney who represented R.L. during a period of
                                                  14
                                                                             No.     2010AP1348-D



time     she    was     estranged          from       the        Golubas.          The    referee

specifically stated:

       When I had the opportunity to see and hear [R.L.] in
       person, observe her demeanor, her recollection and
       credibility, there is hardly any doubt in my mind that
       [R.L.] was not intimidated, misled or frightened.    I
       believe she was concerned for her daughter, as she had
       been many times in the past, and she simply asked what
       she could do to help out her daughter. She testified
       quite   forthrightly   that   she   wrote  the   check
       voluntarily, not because she was threatened or misled,
       but because she wanted to help her daughter.     David
       Goluba accepted the check, put it in his Trust
       Account, and paid off The Salvation Army.
Thus, with respect to Count 2 the referee stated, "I do not find

that     [Attorney]          Goluba        engaged          in     any      intimidation       or

misrepresentation with respect to [R.L.], and I do not believe

OLR    has     proven    that     by       clear,      satisfactory          and     convincing

evidence."

       ¶41     After    detailing          his     factual         findings        the    referee

concluded that the OLR had proved by clear, satisfactory, and

convincing           evidence,         that           Attorney            Goluba         violated

SCR 20:1.15(b)(1) for his failure to hold in trust $30,000 from

the W.S. Estate which was properly the property of The Salvation

Army (Count 1).

       ¶42     The referee concluded that the OLR failed to prove, by

evidence       which    is    clear,       satisfactory,            and     convincing,      that

Attorney Goluba         engaged       in    misrepresentations               or    intimidation

toward       R.L.    concerning        her       responsibility             for     paying   the

$30,000,       and    therefore       had    not      proven        that    Attorney      Goluba

violated SCR 20:8.4(c) (Count 2).


                                                 15
                                                                      No.     2010AP1348-D



        ¶43    The    referee    also    concluded      that    the   OLR     proved    by

clear,        satisfactory,      and    convincing      evidence       that     Attorney

Goluba made at least two statements to the probate court of

Outagamie County, Wisconsin, which were misrepresentations and

thereby constituted a violation of SCR 20:8.4(c) (Counts 1 and

2).

        ¶44    The    OLR   appeals      several      aspects    of    the     referee's

report and specifically disputes the appropriate discipline and

urges imposition of full costs.

        ¶45    With    respect    to     the      allegations    in    Count     1,    the

referee          concluded        that            Attorney      Goluba          violated

SCR 20:1.15(b)(1) by failing to hold property in trust, stating

"indisputably, [since] the $30,000.00 was not held in trust and

the Rule requires a lawyer to do so, there is a violation of

this Rule."          The facts of record support this conclusion, and we

adopt it.

        ¶46    Count 1 also alleges that Attorney Goluba engaged in

misrepresentation in violation of SCR 20:8.4(c).
        ¶47    The    referee    found       that   Attorney    Goluba       engaged    in

misrepresentation by filing a final account with the probate
court     representing        that     The     Salvation     Army     had     been    paid

$30,000, and by stating to the court on January 19, 2007, that
The Salvation Army had been paid and that he had a cancelled

check.        The referee thus concluded that Attorney Goluba violated
SCR 20:8.4(c) ("I find that Attorney Goluba, by filing a Final

Account with the Probate Court, representing that The Salvation

Army had been paid $30,000.00; and by stating to the Court on
                                             16
                                                                                No.     2010AP1348-D



January 19, 2007 that The Salvation Army had been paid and that

he    had    a     cancelled    check,      engaged          in    misrepresentations             and

therefore violated that Rule.")

       ¶48       This      conclusion       depends           on        the     definition         of

misrepresentation used by the referee.                            The referee states that

the    terms        "dishonesty,        fraud,          deceit      or        misrepresentation

. . . are         not     generally    defined."             The     referee      then     uses     a

definition of misrepresentation from First Nat'l Bank & Trust

Co. of Racine v. Notte, 97 Wis. 2d 207, 293 N.W.2d 530 (1980).

That case involved a claim of fraudulent representation by a

lender       in    a     contract     negotiation.                The    court,        considering

whether a contract can be voided for mutual mistake of fact,

stated      "[a]        misrepresentation      is       an     assertion        that     does     not

accord with facts as they exist."                        Id. at 222.           The Notte court

then     stated          that   liability      may        be       imposed       even      when     a

misrepresentation was innocent, i.e., the person lacked actual

knowledge          they     were      making        a     factual         misrepresentation.

However,         the    definition     of   misrepresentation                 stated     in     Notte

does not apply to lawyer disciplinary cases.

       ¶49        The     Wisconsin    Rules        of       Professional             Conduct     for

Attorneys,          SCR     Chapter     20,    defines             "misrepresentation"             as

follows:

            "Misrepresentation" denotes communication of an
       untruth, either knowingly or with reckless disregard,
       whether by statement or omission, which if accepted
       would lead another to believe a condition exists that
       does not actually exist.
SCR 20:1.0(h).


                                               17
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     ¶50    Misrepresentation       under    the     Wisconsin     ethics      rules

requires communication of an untruth, either knowingly or with

reckless disregard for truth.               Whether the communication was

made knowingly or with reckless disregard for the truth may be

inferred    from   circumstances.      See     SCR    20:1.0(g)        (a   person's

knowledge may be inferred from circumstance).

     ¶51    Here, the referee decisively found that Janice Goluba

misappropriated     the   funds10    and    that     Attorney     Goluba      lacked

knowledge of the misappropriation of funds until after the court

hearing.     The referee's report contains the following factual

findings made in connection with this issue:

    •      "From May, 2004 through October, 2004 Janice Goluba
           withdrew money from the Trust Account to pay
           personal and family expenses.     David Goluba was
           unaware of these withdrawals at the time they were
           made" (emphasis added).

     •     "Janice Goluba did not put in the appropriate
           files, and did not give to her husband, much if not
           all of the correspondence from The Salvation Army
           or their attorney pertaining to the [W.S.] Estate.
           Likewise Mrs. Goluba did not advise Attorney Goluba
           of telephone calls received from Maris or The
           Salvation Army, concerning The Salvation Army's
           bequest from the [W.S.] Estate" (emphasis added).

     •     "Attorney   Maris   again   wrote   to  Goluba    on
           October 13, 2006, asking again for a copy of the
           back of the check. Attorney Goluba did not see and
           did not respond to that letter" (emphasis added).
In narrative the referee stated:

     •     "When one reads the transcript of that hearing, one
           is left with the clear impression that Goluba
     10
       The referee states that "it is concluded                        that   Janice
Goluba unlawfully misappropriated the $30,000.00."

                                      18
                                                                         No.    2010AP1348-D


           believed he had a cancelled check. He claims when
           he went to look through the records, [he] could
           find nothing.    He then confronted his wife, and
           learned for the first time, he says, that she had
           misappropriated the $30,000.00.     Quite honestly,
           that has the ring of truth to it" (emphasis added).

     •     "In fact, there            is no evidence anywhere in the
           record    that             Goluba    actually     knew   the
           misappropriations             were   taking    place   until
           immediately after          the conference with Judge Dyer on
           January 19, 2007"          (emphasis added).

     •     "It seems quite clear to me, based upon all of the
           testimony I heard, that Goluba's wife undertook the
           misappropriation; hid pertinent information about
           the [W.S.] file from Goluba, including all requests
           for information from The Salvation Army; and never
           advised Goluba of what documentation was needed to
           close the probate file."

     •     "I don't believe he would have boldly told Judge
           Dyer that he had a copy of a cancelled check, nor
           would he have filed a Final Account with the
           Probate Court certifying that The Salvation Army
           had been paid, without honestly believing those two
           statements were true" (emphasis added).
     ¶52     The      OLR    does      not        address     the        definition        of

misrepresentation         used   by    the    referee.        The   OLR        focuses    its

argument on its assertion that the record evidence demonstrates
that Attorney Goluba knew of the misappropriation such that the

referee's       factual     findings         to    the      contrary       are     clearly

erroneous.

     ¶53     The OLR argues, vehemently, that the "record proves

Goluba knew of the misappropriation of $30,000 of [W.S.] Estate

funds which Goluba had deposited to his trust account."                            The OLR

points     to   the    following       facts       of    record     to     support       this

assertion:


                                             19
                                                                 No.    2010AP1348-D



        •   Attorney Goluba requested R.L. place $424,156.69 into

his trust account.

        •   Attorney    Goluba   claims     to   have    lost,    misplaced,      or

can't find essentially         all    of   his   trust   account       records   and

business records for a time period from 2002 to February 2,

2007.

     •      There was no cancelled check paid to The Salvation

Army from May 2004 until February 2007.

     •      In   less   than   five    months,     Attorney      Goluba    had   an

influx of $30,000 into his personal bank account.

     •      Attorney Goluba signed some of the trust checks at the

time of conversion.

     •      Attorney Goluba admits he knew during 2004 that he was

having a bad year financially, with insufficient cash flow to

support himself, his family, and his home.

     •      Janice Goluba repeatedly invoked the Fifth Amendment

as to theft of the $30,000 of trust funds.

     •      Attorney Goluba testified that he prepared the federal
and state tax returns for the business and federal and state

joint income tax returns.            A review of the 2001-2007 returns
shows that Attorney Goluba would have had to review all records

of income and expense, including bank statements for both the
business and the personal joint income, to prepare an accurate

tax return.
     ¶54    In making these arguments, the OLR also defends its

decision    to   create    a     "meticulous"      and    "full        record"   by

"tracing . . . Goluba's use of his trust account."                        And, the
                                       20
                                                                             No.    2010AP1348-D



record       does    contain      "copious        data"        and    "[s]ummaries         as    to

contacts between the probate division, the judge, the banks to

Goluba, [The] Salvation Army, Attorney Maris, and others."

       ¶55     We    readily      acknowledge          that     circumstantial           evidence

may support a finding of misrepresentation.                                See, e.g., In re

Disciplinary         Proceedings         Against            Marks,    2003    WI        114,    265

Wis. 2d 1,          665    N.W.2d 836.                Here,      however,         the     referee

considered the            extensive      documentary          and    testimonial         evidence

and    found    that       Attorney      Goluba        did     not    know    his       wife    had

misappropriated the money.                In making this finding, the referee

referenced and considered the documentary evidence; it cannot be

said that the referee did not consider the voluminous record

prepared by the OLR.

       ¶56     The    OLR    focuses        on        the    referee's       statement          that

Attorney       Goluba       did    not    sign         any     of    the     checks       drawing

misappropriated monies from the trust account, contending this

is    clearly       erroneous.        The    OLR        points       out   that    the     record

indicates he did, indeed, endorse some of these checks.11


       11
       The   referee  stated   that  "[a]lthough  each   of  the
misappropriated checks from the Trust Account was written in his
name, none of the endorsements on the checks appear to bear his
signature." The OLR notes that Attorney Goluba admitted in his
deposition that his signature was on trust account checks dated
in 2004, with misappropriated trust funds occurring at the time
he endorsed checks during 2004.     Specifically, it appears he
endorsed check no. 1702 for $3,500; check no. 1724 for
$4,454.86; check no. 1003, Estate of W.S. signed by R.L. in the
amount of $4,300; possibly a cashier's check for approximately
$2,900; and check no. 1827, which appeared to be for $1,300
although Attorney Goluba testified it was not his signature on
that check.

                                                 21
                                                                              No.    2010AP1348-D



        ¶57   The referee noted, however, that the checks had been

subpoenaed from the bank and were "poor" photocopies at best.

The referee         notes         that Attorney         Goluba       testified      he    did    not

think    it    was       actually        his     signature      on    these     checks.          The

referee did not explicitly find that Janice Goluba signed her

husband's name, but states, "[i]t would appear that the checks

were    written         by    his    wife,       made   payable       to   Goluba,       and    then

endorsed by his wife."

       ¶58    Even if the referee's finding that Attorney Goluba did

not endorse some of these checks is error, it does not make the

referee's finding regarding Attorney Goluba's knowledge of the

misappropriation              clearly       erroneous.          Considering         the     proper

standard of misrepresentation applicable in disciplinary cases,

together with the referee's clear factual findings, we accept

the referee's factual findings, but reject the conclusion that

Attorney Goluba violated SCR 20:8.4(c) as alleged in Count 1

because       the       referee          found       Attorney    Goluba        lacked       actual

knowledge          of        the      misappropriation            when        he     made        the
representations at issue to the court.

       ¶59    Thus,          we    agree    with      the    referee's       conclusions        that
Attorney Goluba violated SCR 20:1.15(b)(1) as alleged in Count

1;    Count    2     should         be     dismissed        because    the    OLR    failed      to
demonstrate Attorney Goluba violated SCR 20:8.4(c) regarding his

interactions with R.L.; Attorney Goluba violated SCRs 22.03(2)
and    22.03(6),         enforceable           via    SCR    20:8.4(h),       by    failing      to

cooperate in the investigation of the W.S. Estate matter, as

alleged in Count 3; Attorney Goluba violated SCR 20:1.3 when he
                                                   22
                                                                                 No.     2010AP1348-D



engaged in practice reflecting a lack of diligence in the S.R.

matter    as     alleged       in    Count       4;    Attorney        Goluba      violated        SCR

20:1.4(a)(4) when he failed to communicate in the S.R. matter as

alleged     in       Count    5;    the     allegation            in     Count     6     should     be

dismissed because the OLR did not prove that Attorney Goluba

failed     to       return    client       property          in    the    S.R.         matter;     and

Attorney        Goluba       violated      SCR 22.03(2),               enforceable         via     SCR

20:8.4(h),          when      he     failed           to     cooperate       in         the      OLR's

investigation regarding the S.R. matter as alleged in Count 7.

We also dismiss the misrepresentation claim alleged in Count 1.

     ¶60       We    consider the          appropriate            discipline       for     Attorney

Goluba's    misconduct.              The    referee          recommended         restitution        as

follows:        $145 to client S.R. for fees incurred when Attorney

Goluba failed to complete the transfer of her vehicle titles;

$30,000    to       reimburse       the    Fund       for    monies      paid     to     R.L.;    and

$2,655 in legal fees incurred by The Salvation Army to recover

their bequest.            No party has objected to these recommendations,

they seem wholly reasonable, and we accept them.
     ¶61       The       referee    also     recommends            that    Attorney           Goluba,

prior to reinstatement, take a trust account management seminar
within    one       year,    successfully         complete         its     requirements,           and

furnish quarterly reports to the OLR of activities in his trust
account    for       a    period     of    two    years       after       resuming        practice,

including        furnishing         any     and        all    trust,       fiduciary          and/or
business account records requested by the OLR.                                     No party has

objected to these recommendations, they seem wholly reasonable,

and we accept them.
                                                 23
                                                                                  No.     2010AP1348-D



       ¶62       We reject the OLR's request for revocation.                                   Attorney

Goluba has, indeed, committed serious misconduct that warrants

suspension         of    his    license.        However,         the        referee       decisively

rejected the OLR's assertion that Attorney Goluba had ongoing

knowledge         of     the     misappropriation            of        funds        or       that      he

manipulated           R.L.     into     writing       him    a    check        to        cover       that

misappropriation.                Upon       learning        of    the        misappropriation,

Attorney Goluba promptly took steps to ensure The Salvation Army

was paid.         His mother-in-law, R.L., has disavowed any claim that

she was manipulated into paying Attorney Goluba.                                        Accordingly,

the most serious ethical charges against Attorney Goluba fail.

       ¶63       We    have    considered       the    decisions            cited       by     the    OLR

concerning trust account misappropriation by attorneys.                                              See,

e.g., In re Disciplinary Proceedings Against Gedlen, 2007 WI

121,       305     Wis. 2d 34,          739    N.W.2d 274;             In     re        Disciplinary

Proceedings Against Sheehan, 2007 WI 3, 298 Wis. 2d 317, 725

N.W.2d 627; In re Disciplinary Proceedings Against Ham, 2006 WI

30,    289       Wis. 2d 359,         711   N.W.2d 649;          and    In     re       Disciplinary

Proceedings Against O'Byrne, 2002 WI 123, 257 Wis. 2d 8, 653

N.W.2d 111.

       ¶64       As the referee observed, however, in these cases the

attorneys knowingly committed the misappropriation.                                      We respect,

as    we   must,        the    referee's      reasoned      decision          to        rely    on    his

credibility determinations over the record evidence submitted by

the OLR.

       ¶65       We     consider      the     cases    cited       by       the     referee          more

helpful in ascertaining the appropriate discipline.                                       See, e.g.,
                                                24
                                                                           No.       2010AP1348-D



In re Disciplinary Proceedings Against Brandt, 2009 WI 43, 317

Wis. 2d 266,         766    N.W.2d 194      (imposing             public     reprimand          on

attorney whose legal secretary embezzled money from several of

the attorney's accounts, including his trust account, noting the

attorney admitted that he failed to make reasonable efforts to

ensure   that    his       secretary's     conduct          was    compatible         with     the

obligations     of     attorneys     as    required          by    SCR     20:5.3);       In   re

Disciplinary        Proceedings      Against          Guenther,      2005    WI       133,     285

Wis. 2d 587,     700       N.W.2d 260 (imposing              six-month      suspension          on

attorney who violated trust account rules because of his failure

to keep appropriate trust account records); In re Disciplinary

Proceedings Against Usow, 214 Wis. 2d 596, 571 N.W.2d 162 (1997)

(imposing a six-month suspension on an attorney charged with

misrepresentation and trust account violations that were found

to be committed without intent and due to a failure to properly

supervise his office staff).

     ¶66     Attorney       Goluba's      failure       to    pay    attention          to     his

trust account and financial situation was serious.                               He failed to

adequately      supervise      his     office         and    his    lack     of       oversight

facilitated     a     misappropriation           of    $30,000      from     a       charitable

organization.          We    agree   with     the       referee      that        a    six-month

suspension      is    appropriate         discipline,         and     we     note       that    a

suspension of this length will require him to undergo a formal

reinstatement proceeding before he will be eligible to practice

law again.

     ¶67     We turn next to the issue of costs.                            The OLR seeks

full costs which total $45,676.36 as of July 9, 2012.                                  Attorney
                                            25
                                                                      No.        2010AP1348-D



Goluba filed a timely objection requesting a reduction in the

costs.

        ¶68   Assessment    of    costs     in   OLR    matters      is     governed      by

SCR 22.24(1m).        Our general policy is that upon a finding of

misconduct it is appropriate to impose all costs, including the

expenses of counsel for the OLR, upon the respondent.                              In cases

involving     extraordinary       circumstances         the    court      may,      in   the

exercise of its discretion, reduce the amount of costs upon a

respondent.         SCR 22.24(1m).          In making this determination we

consider the submissions of the parties and all of the following

factors:

             (a)    The number of counts charged, contested, and
        proven.

              (b)   The nature of the misconduct.

             (c) The level of discipline sought                             by     the
        parties and recommended by the referee.

             (d) The    respondent's             cooperation          with         the
        disciplinary process.

              (e)   Prior discipline, if any.

              (f)   Other relevant circumstances.
SCR 22.24(1m)(a)-(f).
        ¶69   We conclude, after careful consideration, that there

are aspects of this litigation that warrant reduction of costs.

The complaint alleged seven counts of misconduct (encompassing

eight     potential      rule    violations)      and     sought       revocation         of

Attorney      Goluba's     license     to      practice       law.          The     referee

ultimately      concluded,       and   we      agree,     that       Attorney        Goluba


                                          26
                                                                         No.     2010AP1348-D



committed five of the eight charged ethical violations resulting

in a six-month suspension.

      ¶70     The       referee     explicitly         noted     that    the     misconduct

pertaining to S.R. warranted a reprimand.                         Attorney Goluba was

exonerated        on    the    most    serious        allegations       involving    fraud,

deceit, or misrepresentation.                  Attorney Goluba has practiced law

for   over    20       years   with    no     prior    disciplinary       history.       See

SCR 22.24(1m)(c).

      ¶71     Admittedly, Attorney Goluba failed to cooperate with

the OLR early in the investigation; however, it appears he was

cooperative during the proceedings before the referee.

      ¶72     Our review of the costs incurred in this proceeding

indicates that most of the costs are counsel, referee, and court

reporter      fees          reflecting        the     length     of     the     evidentiary

proceeding, including production of voluminous banking records.

Attorney Goluba argues that most of these costs were incurred in

the OLR's unsuccessful attempt to prove he had ongoing knowledge

and involvement in the misappropriation of funds.                              He questions

the   fairness         of    this   when      he    admitted     the    misappropriation
occurred from the beginning and was ultimately exonerated by the

referee      on    the      question     of    his     knowing    involvement       in   the
misappropriation.

      ¶73     On balance we agree with Attorney Goluba.                         Although we
do not reduce costs based solely on the fact that a lawyer

prevailed on certain charges, here, the OLR opted to engage in a

thorough, time-consuming, and ultimately very expensive endeavor

to convince the referee of Attorney Goluba's ongoing knowledge
                                               27
                                                                No.   2010AP1348-D



of and involvement with the misappropriation of client funds.

This effort was unsuccessful.          The referee found:

     [T]here is absolutely no evidence that Goluba ordered
     the misappropriation of funds.         There is only
     inferential evidence (and certainly not evidence that
     rises to the standard of clear, satisfactory and
     convincing) that Goluba knew the conduct was going on
     and ratified it . . . .   [T]here is no evidence that
     Goluba knew of the misappropriation at a time when its
     consequences could be avoided or mitigated but failed
     to take reasonable remedial action.
Indeed, the referee found that "there is no evidence anywhere in

the record that Goluba actually knew the misappropriations were

taking place until immediately after the conference with Judge

Dyer on January 19, 2007."

     ¶74     In view of    this   outcome,       we   decline    to   impose   the

entire costs of this expensive effort on Attorney Goluba, a solo

practitioner with no prior discipline.                On consideration of the

facts and the record, we impose one-half of the costs of this

proceeding.      Our     determination      is    not    the    result   of    the

application of a precise mathematical formula, but is based on

our thorough consideration of the record, the manner in which

this case developed, and the factors set forth in SCR 22.24(1m).

We   note,    further,    that    Attorney       Goluba's       allegations    of

financial     hardship    are     an    appropriate       consideration        for

establishment of a payment plan with the OLR.




                                       28
                                                                       No.     2010AP1348-D



        ¶75     IT IS ORDERED that the license of David A. Goluba to

practice       law       in   Wisconsin   is    suspended    for   a   period     of   six

months, effective the date of this order.12

        ¶76     IT IS FURTHER ORDERED that, if he has not already done

so, Attorney David A. Goluba shall comply with the requirements

of SCR 22.26 concerning the duties of a person whose license to

practice law in Wisconsin has been suspended.

        ¶77     IT       IS    FURTHER    ORDERED     that     prior         to   seeking

reinstatement of his license to practice law, David A. Goluba

shall        take    a    trust   account      management    seminar,        successfully

complete its requirements, and furnish quarterly reports to the

Office of Lawyer Regulation of activities in his trust account

for a period of two years after resuming practice, including

furnishing any and all trust, fiduciary and/or business account

records requested by the Office of Lawyer Regulation.

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

of this order David A. Goluba shall pay restitution as follows:

(1) $30,000 plus legal interest to the Wisconsin Lawyers' Fund
for Client Protection; (2) $2,655 to The Salvation Army; and (3)

$145 to client S.R.




        12
       Attorney Goluba is reminded that his license to practice
law remains administratively suspended.   Before Attorney Goluba
may practice law in Wisconsin, he must provide evidence to this
court that he has satisfied his obligations relating to trust
account certification and bar dues, assessments, and fees, or
demonstrated that he has obtained a waiver from the State Bar of
Wisconsin. See SCR 22.28(1).

                                               29
                                                      No.    2010AP1348-D



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

of this order, David A. Goluba shall pay to the Office of Lawyer

Regulation one-half of the costs of this proceeding, which total

$45,676.36 as of July 9, 2012.

     ¶80   IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

    ¶81    IT   IS   FURTHER   ORDERED   that   compliance   with    all

conditions of this order is required for reinstatement.              See

SCR 22.29(4)(c).




                                  30
    No.   2010AP1348-D




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