                                                              2019 WI 39

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP523-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Patrick J. Hudec, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Patrick J. Hudec,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST HUDEC

OPINION FILED:          April 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2019 WI 39
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2017AP523-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Patrick J. Hudec, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
             Complainant,                                     APR 18, 2019
       v.                                                        Sheila T. Reiff
                                                              Clerk of Supreme Court
Patrick J. Hudec,

             Respondent.




       ATTORNEY    disciplinary     proceeding.        Attorney's           license
suspended.


       ¶1    PER CURIAM.    We review Referee Richard M. Esenberg's
report and recommendation concluding that Attorney Patrick J.
Hudec violated the rules of professional conduct in connection
with   his   representation   of   two   clients,     D.B.    and     N.K.       The

referee recommended that this court impose a 60-day suspension
of Attorney Hudec's law license and condition Attorney Hudec's
continued    practice   of law on his satisfaction             of     a    monetary
judgment entered in N.K.'s civil lawsuit against him.                      We adopt
the    referee's   findings   of    fact,   conclusions          of       law,   and
                                                                             No.    2017AP523-D



recommendation regarding discipline.                       We impose the full costs
in this matter, which total $4,319.04 as of January 24, 2019.
      ¶2       Attorney       Hudec       was    admitted       to    practice        law    in
Wisconsin on May 21, 1979.                   He has a substantial disciplinary
history:       a 1989 consensual private reprimand; a 1993 consensual
private reprimand; a 2001 consensual private reprimand; a 2008
consensual public reprimand; and a 2014 public reprimand.
      ¶3       On March 22, 2017, the Office of Lawyer Regulation
(OLR)    filed     a    complaint       against        Attorney      Hudec    alleging       six
counts        of   professional             misconduct         arising       out      of     his
representation of D.B. and N.K.                      Attorney Hudec moved to dismiss
the complaint on a variety of grounds.                         This court appointed a

referee, who denied the motion.                        Attorney Hudec then filed an
answer in which he denied all misconduct.
      ¶4       Attorney       Hudec    later         entered   into    a   stipulation        in
which    he    agreed        to   plead     no   contest       to    the   six      counts   of
misconduct charged in the complaint.                      Attorney Hudec agreed that
the referee could use the allegations of the complaint as a

factual    basis       for    the     referee's        determination       of      misconduct.
The parties stipulated that a 60-day suspension was appropriate
discipline.        The parties further stipulated that, as a condition
upon his continued practice of law, Attorney Hudec must comply
with any judgment resulting from a pending civil case against
him   brought      by    N.K.         The    parties       further     agreed        that    the
stipulation was not the result of plea bargaining; that Attorney
Hudec's entry into the stipulation was knowing and voluntary;
and that he understood the misconduct allegations made in the
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OLR's complaint, his right to contest those allegations, his
right   to consult with             counsel, and the ramifications                    of his
entry into the stipulation.
       ¶5      In   January    2019,     the    referee    filed    his        report    and
recommendation.           The referee accepted the parties' stipulation
and found, based on the stipulation, that the following facts
were true.
       Representation of D.B. (Counts 1-3)
       ¶6      D.B.'s     mother,    J.A.R.,     died in May        2012.         In June
2012, D.B. hired Attorney Hudec to represent her in her capacity
as personal representative for her mother's estate.                              D.B. paid
Attorney Hudec a $1,500 advanced fee.                     Attorney Hudec did not

communicate the scope of the representation or the basis or rate
of    the   fee     in    writing   to   D.B.    within    a   reasonable         time    of
commencing the representation, nor did he provide her with a
written communication explaining the purpose and effect of the
advanced fee.
       ¶7      J.A.R.'s will was admitted to probate.                          On November

16,    2012,      C.D.,    another     daughter    of     J.A.R.,    filed        a    claim
against     the     estate    concerning       payments    made     on    her     mother's
behalf and an asserted interest in a house she had shared with
her mother.         Attorney Hudec received a copy of the claim.
       ¶8      Attorney Hudec failed to file an objection to C.D.'s
claim within 60 days as required by Wis. Stat. § 859.33.                                  He
also failed to promptly respond to several of D.B.'s emails and
telephone calls requesting information regarding the status of
the estate proceeding.
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      ¶9     On November 6, 2013, nearly a year after C.D. filed
her claim, C.D.'s counsel moved for a default judgment on the
claim, as well as for a protective order relating to discovery.
      ¶10    On     November      20,     2013,    Attorney     Hudec      filed    an
objection to C.D.'s claim, a motion for an extension of time for
objections     to       claims,   and    various   filings     in   opposition      to
C.D.'s motions for default judgment and for a protective order.
      ¶11    In     a    December   23,    2013    order,     the   circuit      court
granted C.D.'s motion for default judgment.                    The circuit court
also granted C.D.'s requested protective order.
      ¶12    On December 30, 2013, C.D. filed a notice of entry of
judgment.

      ¶13    On January 8, 2014, Attorney Hudec filed a motion for
reconsideration and a "Motion to Reopen Judgment."                        The circuit
court denied these motions, noting that Attorney Hudec's failure
to timely file an objection to C.D.'s claim was not the result
of excusable neglect, but rather was part of a pattern of late
filings in his handling of the estate proceedings.

      ¶14    Attorney Hudec did not timely appeal from the circuit
court's default judgment.               He did, however, timely appeal from
the   circuit     court's      order     denying   the   estate's     motions      for
reconsideration and to "reopen" the default judgment.
      ¶15    In November 2014, the court of appeals affirmed the
circuit     court's      order.     In    doing    so,   it   noted     the   circuit
court's observation that Attorney Hudec had engaged in a pattern
of missed deadlines for reasons that did not meet the standard
for excusable neglect.
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      ¶16    In March 2015, the circuit court ordered that D.B.
continue as the personal representative and retain new counsel.
      ¶17    In a November 2015 letter to the OLR, D.B. stated that
Attorney Hudec had not provided her with copies of the circuit
court     and appellate   decisions;          that    he    had   provided       "only   a
general synopsis of what took place"; that successor counsel had
provided her with copies of these decisions; and that she was
"astonished" by what she read and disappointed in the amount of
information Attorney Hudec had withheld from her.
      ¶18    In February 2016, the circuit court entered a final
judgment,      entered       an     order       discharging          the         personal
representative, and closed the case.

      ¶19    The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to communicate the scope
of   the    representation    and   the       basis    or    rate   of     the    fee    in
writing to D.B. within a reasonable time after commencing the
representation, and by failing to communicate the purpose and
effect of the advanced fee in writing to D.B., Attorney Hudec

violated SCR 20:1.5(b)(1) and (2)1 (Count 1).

      1   SCR 20:1.5(b) provides:

           (1) The scope of the representation and the basis
      or rate of the fee and expenses for which the client
      will be responsible shall be communicated to the
      client in writing, before or within a reasonable time
      after commencing the representation, except when the
      lawyer will charge a regularly represented client on
      the same basis or rate as in the past.       If it is
      reasonably   foreseeable  that  the   total  cost   of
      representation to the client, including attorney's
      fees, will be $1000 or less, the communication may be
                                                      (continued)
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       ¶20       The OLR complaint alleged, the parties stipulated, and
the    referee      determined     that   by   failing   to   timely    object    to
C.D.'s claim against the Estate, by failing to timely appeal
from       the   trial   court's   default     judgment,   and   by    failing    to
comply with several deadlines during the case, Attorney Hudec
violated SCR 20:1.32 (Count 2).
       ¶21       The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to keep D.B. reasonably
informed about the status of the case and by failing to promptly
respond to several of D.B.'s requests for information regarding
the    case,      Attorney   Hudec   violated     SCR    20:1.4(a)(3)    and     (4)3
(Count 3).

       Representation of N.K. (Counts 4-6)




       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.

            (2) If the total cost of representation to the
       client, including attorney's fees, is more than $1000,
       the purpose and effect of any retainer or advance fee
       that is paid to the lawyer shall be communicated in
       writing.
       2
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
       3   SCR 20:1.4(a) provides:        "A lawyer shall:

     (3) keep the client reasonably informed about the status of
the matter.

     (4) promptly comply with reasonable requests by the client
for information."


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     ¶22   In January 2012, N.K. hired Attorney Hudec to pursue a
defamation claim against B.K. regarding B.K.'s complaint to the
Better Business Bureau about N.K.'s business.                     In April 2012,
Attorney Hudec filed a defamation suit on behalf of N.K. and her
business against B.K. and B.K.'s husband, D.K.
     ¶23   In June 2012, D.K. filed a motion for sanctions on the
basis that there was no evidence he was a party to the alleged
defamation and, therefore, he should not have been named as a
defendant.        Also    in    June   2012,   B.K.     filed     an    answer   and
affirmative      defenses      to   N.K.'s   complaint,    and     D.K.    filed   a
counterclaim and a motion to dismiss.
     ¶24   In     July    2012,     Attorney    Hudec     filed    documents       in

opposition to D.K.'s motions for sanctions and to dismiss.
     ¶25   In August 2012, the circuit court held a hearing and
granted D.K.'s motion to dismiss on the ground that there was no
evidence to justify naming him as a party.                  The circuit court
denied D.K.'s motion for sanctions.
     ¶26   In October 2012, Attorney Hudec filed a reply to the

counterclaim and motion to dismiss that D.K. had filed several
months earlier.          D.K. responded by moving to strike Attorney
Hudec's filing as untimely and moving for a default judgment on
the counterclaim.         The circuit court ultimately granted D.K.'s
motions.       Attorney Hudec failed to adequately communicate that
fact to N.K.
     ¶27   Over    the    following     months,   Attorney       Hudec    missed    a
variety of court-imposed deadlines.            In April 2013, B.K. filed a
motion   for    sanctions as        a result   of these missed deadlines.
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Attorney Hudec failed to inform N.K. of this motion, and failed
to    inform    her       of   the       subsequently       scheduled       hearing     on   the
motion.      Attorney Hudec then failed to appear at the sanctions
hearing.        The       circuit        court    dismissed      plaintiffs'         case    with
prejudice,          finding     Attorney         Hudec's     actions        were   egregious,
extreme, substantial, and persistent.                           The circuit court noted
the    following          facts:          (1)    Attorney    Hudec     had     been    granted
extensions          for     various        medical      issues;       (2)    court-mandated
mediation never took place; (3) Attorney Hudec failed to provide
requested      discovery            to    opposing      counsel;      (4)    Attorney       Hudec
failed to file a pretrial report; and (5) Attorney Hudec stated
that    he   intended          to    withdraw      as     counsel     for    plaintiff,      but

failed to so do, filing only unsigned documents.
       ¶28     As     a     sanction        for       failing    to    comply        with    its
scheduling order, the circuit court imposed attorney's fees of
$3,862.50 against plaintiffs and Attorney Hudec.                             The court gave
plaintiffs          leave      to        seek    relief     from      the    imposition       of
attorney's fees by filing a motion with the court.

       ¶29     The    circuit        court       kept   a   scheduled        final    pretrial
conference on its calendar to discuss matters related to D.K.'s
counterclaim.             N.K. appeared at the final pretrial conference.
Attorney Hudec did not.                    N.K. did not know that Attorney Hudec
would not be in attendance.                      She did not know that the circuit
court had dismissed her claims against the defendants.                                 She did
not know that the circuit court had imposed sanctions against
her and Attorney Hudec.


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     ¶30    In May 2013, N.K. paid an amount to the defendants in
order to settle the default judgment that D.K. had obtained on
his counterclaim.
     ¶31    In June 2013, N.K. retained a new lawyer and satisfied
the sanctions judgment in favor of the defendants.
     ¶32    In   December     2016,   N.K.    filed   a   civil     suit   against
Attorney Hudec, his law office, and his insurance carrier, if
any, seeking recovery of her previous payments to Attorney Hudec
and other damages she alleged were caused by him.                   This lawsuit
was pending at the time of the parties' stipulation.                       Although
the referee's report does not note as much, the court takes
judicial    notice    that,    according      to   Wisconsin's      Consolidated

Court Automation Programs (CCAP) records, a $9,235.48 judgment
against    Attorney   Hudec     and   in     N.K.'s   favor   was       entered   on
December 14, 2018, and Attorney Hudec has not filed a notice of
appeal of the judgment.
     ¶33    The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to timely file a reply to

D.K.'s counterclaim resulting in the court striking plaintiffs'
pleading and granting default judgment on the counterclaim, and
by failing to comply with the court's scheduling order, Attorney
Hudec violated SCR 20:1.3 (Count 4).
     ¶34    The OLR complaint alleged, the parties stipulated, and
the referee determined that by failing to inform N.K. that he
did not timely file a reply to D.K.'s counterclaim, by failing
to inform N.K. that the court granted a default judgment on the
counterclaim, and by otherwise failing to keep N.K. reasonably
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informed about the status of the case, Attorney Hudec violated
SCR 20:1.4(a)(3) (Count 5).
       ¶35    The OLR complaint alleged, the parties stipulated, and
the    referee determined              that     by failing             to make     a reasonably
diligent effort to comply with defendants' discovery requests,
Attorney Hudec violated SCR 20:3.4(d)4 (Count 6).
       ¶36    The       referee        recommended            a     60-day       suspension       of
Attorney Hudec's license in his report.                                The referee noted that
Attorney      Hudec      has    an      extensive          disciplinary           record     (three
private      and    two    public         reprimands),             and    that    his     previous
misconduct        included      neglect         similar           to     what    occurred     here.
See,    e.g., Public Reprimand                  of   Patrick J. Hudec,                 No.   2008-2

(electronic                          copy                          available                      at
https://compendium.wicourts.gov/app/raw/002005.html) (imposing a
public reprimand for misconduct that included failing to act
with reasonable diligence and promptness, failing to keep his
client reasonably informed, and failing to timely respond to the
OLR's      investigative        efforts);          In    re       Disciplinary         Proceedings
Against      Hudec,      2014     WI      46,   354      Wis. 2d 728,            848    N.W.2d 287
(imposing      a    public      reprimand            for      misconduct         that     included
failing      to     provide       competent             representation;            e.g.,      gross
inattention        to    detail      in     circuit        court        litigation,      filing    a
principal     appellate         brief       rife     with         grammatical      and     spelling

       4
       SCR 20:3.4(d) provides: "A lawyer shall not in pretrial
procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party."


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errors, and filing an appellate reply brief that was struck as
untimely and was not served on opposing counsel).
      ¶37     The referee also pointed to certain cases that support
a   60-day    suspension under similar              circumstances.           See In    re

Disciplinary Proceedings Against Moldenhauer, 2016 WI 43, 369
Wis. 2d 1,        879   N.W.2d 605        (imposing   a    60-day     suspension      for
failing      to   act    with    reasonable      diligence    and     promptness      and
failing      to    keep    a     client     reasonably      informed;       respondent-
lawyer's disciplinary history included a private reprimand and
three     public        reprimands        for    similar     misconduct);        In    re
Disciplinary        Proceedings       Against     Theobald,    2010     WI    102,     329
Wis. 2d 1,        786   N.W.2d 834        (imposing   a    60-day     suspension      for

failing      to   act    with    reasonable      diligence    and     promptness      and
failing      to    keep    a     client     reasonably      informed;       respondent-
lawyer's disciplinary history included two public reprimands for
similar      misconduct);        In   re    Disciplinary      Proceedings       Against
Anderson, 2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100 (imposing
a 60-day suspension for failing to act with reasonable diligence
and   promptness        and     failing     to   properly     communicate       with    a
client;      respondent-lawyer's           disciplinary     history     included      two
public       reprimands         and   a     private       reprimand     for     similar
misconduct).
      ¶38     The referee also deemed it reasonable for the court to
require Attorney Hudec to comply with any judgment resulting
from N.K.'s lawsuit against him——a term the parties agreed to in
their stipulation.


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       ¶39    Neither party appealed the referee's report, so this
matter       is    submitted         to     the    court     for      review           pursuant      to
SCR 22.17(2).            We review a referee's findings of fact subject to
the     clearly      erroneous            standard.         See       In     re        Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747.               We review the referee's conclusions of law de
novo.        Id.     We determine the appropriate level of discipline
independent         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.
       ¶40    We agree with the referee that a 60-day suspension is
appropriate.         Clearly, Attorney Hudec's many previous reprimands

have    not       impressed      upon       him    the    importance         of        his     ethical
obligations.          "This court has long adhered to the concept of
progressive discipline in attorney regulatory cases."                                           In re
Disciplinary Proceedings Against Netzer, 2014 WI 7, ¶49, 352
Wis. 2d 310, 841 N.W.2d 820.                      A suspension is the next step in
the progressive discipline process, and Moldenhauer, Theobald,
and     Anderson         instruct         that    under     circumstances               like    those
present here, a 60-day suspension is appropriate.
       ¶41    We turn next to the issue of restitution.                                 The OLR did
not      request          restitution             related        to        Attorney            Hudec's
representation           of    D.B.        The    OLR    reports      that    while           some   of
Attorney      Hudec's         work    on    D.B.'s       mother's     estate           was     clearly
deficient,         its     investigation           did     not     provide         a     reasonably
ascertainable amount of funds to be restored.                               In addition, the
OLR    reports,      any      losses       the    estate    incurred         as     a    result      of
                                                  12
                                                                       No.     2017AP523-D



Attorney      Hudec's    failure       to    object    to     C.D.'s      claim      would
constitute incidental or consequential damages, as opposed to
funds that were under Attorney Hudec's direct control.                               Given
these circumstances, we agree with the OLR that no restitution
is warranted related to the D.B. matter.                    See In re Disciplinary

Proceedings      Against       Blessinger,          2017     WI    107,       ¶21,      378
Wis. 2d 539, 905 N.W.2d 122 (noting that the OLR's policy is to
seek   restitution      only     when,      among   other    things,         there   is   a
reasonably ascertainable amount of restitution, and the funds to
be   restored    were    in    the    lawyer's      direct    control        and   do   not
constitute incidental or consequential damages).
       ¶42    Although the OLR did not seek restitution related to

the N.K. matter, the parties stipulated, and the referee agreed,
that    the   court     should       condition      Attorney      Hudec's      continued
practice of law on his satisfaction of any monetary judgment
entered in N.K.'s civil lawsuit against him.                            As mentioned
above, CCAP records show that N.K. obtained a $9,235.48 judgment
against Attorney Hudec in December 2018.                       Consistent with the
parties' stipulation and the referee's recommendation, we deem
it appropriate to require, as a condition of the reinstatement
of his Wisconsin law license, that Attorney Hudec satisfy this
judgment.
       ¶43    Finally, we deem it appropriate to impose the full
costs of this disciplinary proceeding on Attorney Hudec, as is

our usual custom.        See SCR 22.24(1m).
       ¶44    IT IS ORDERED that the license of Patrick J. Hudec is
suspended for a period of 60 days, effective May 30, 2019.
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     ¶45    IT IS FURTHER ORDERED that within 60 days of the date
of this order, Patrick J. Hudec shall pay to the Office of
Lawyer     Regulation    the     costs   of    this     proceeding,          which    are
$4,319.04 as of January 24, 2019.
     ¶46    IT   IS     FURTHER    ORDERED      that,     as     a        condition    of
reinstatement     of    his    license   to    practice        law    in     Wisconsin,
Patrick J. Hudec shall satisfy the judgment issued against him
and in N.K.'s favor in connection with the misconduct described
herein.
     ¶47    IT   IS    FURTHER    ORDERED     that    Patrick        J.    Hudec    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.
     ¶48    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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