                                                         2017 WI 106

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2017AP1168-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Alan R. Stewart, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Alan R. Stewart,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST STEWART

OPINION FILED:          December 21, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                         2017 WI 106
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.     2017AP1168-D


STATE OF WISCONSIN                              :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Alan R. Stewart, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
            Complainant,
                                                                  DEC 21, 2017
      v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
Alan R. Stewart,

            Respondent.




      ATTORNEY       disciplinary       proceeding.        Attorney's         license

suspended.



      ¶1    PER   CURIAM.       We   review    Referee       John      B.    Murphy's

recommendation       that   Attorney    Alan   R.    Stewart      be   declared       in

default and that his license to practice law in Wisconsin be

suspended for 60 days for professional misconduct.                      The referee

also recommended that Attorney Stewart pay the full costs of the

proceeding, which are $805.85 as of October 11, 2017.

      ¶2    We declare Attorney Stewart to be in default.                             We
agree   with   the    referee    that    Attorney      Stewart's       professional
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misconduct       warrants    a    60-day       suspension      of    his    license    to

practice law in Wisconsin.               We also agree that Attorney Stewart

should pay the full costs of this proceeding.

       ¶3      Attorney   Stewart        was       admitted   to    practice    law   in

Wisconsin in 1992.          He was registered as a patent attorney with

the United States Patent and Trademark Office (USPTO) on March

19, 2001.1      He practices in Appleton.

       ¶4      This court recently imposed a nine-month disciplinary

suspension on Attorney Stewart for two counts                         of failing to

complete and file a patent application or act in furtherance of

his client's interests in violation of SCR 20:1.3; two counts of

failing to keep his client reasonably informed of the status of

the   matter     and   respond     to    his       client's   telephone      calls    and

emails in violation of SCR 20:l.4(a)(3) and (4); two counts of

receiving an advance fee from his client and failing to complete

and file the patent application in violation of SCR 20:1.5(a);

two counts of failing to refund any unearned advance fee in

violation of SCR 20:1.16(d); one count of misrepresenting to his
client that he completed the patent application in violation of

SCR 20:8.4(c); and two counts of failing to provide the Office

of    Lawyer    Regulation       (OLR)    with       a   written    response    to    the

grievance in violation of SCR 22.03(2) and (6), enforced via




       1
       Attorney Stewart is not currently registered as a patent
attorney with the USPTO. As of July 16, 2015, he is registered
only as a patent agent.


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SCR 20:8.4(h).         See    In    re     Disciplinary       Proceedings           Against

Stewart, 2017 WI 41, 374 Wis. 2d 642, 893 N.W.2d 572.

     ¶5     In addition, Attorney Stewart's license to practice

law in Wisconsin is also administratively suspended due to his

failure    to   pay   mandatory      bar    dues,     failure      to    file       a    trust

account    certification,      and       failure     to   comply    with       continuing

legal education requirements.

     ¶6     On June 16, 2017, the OLR filed this complaint against

Attorney Stewart alleging three counts of misconduct pertaining

to   his    continuing        to     practice        law      before          the       USPTO.

Specifically,     as    the    complaint           alleged,     USPTO         regulations

require    that   trademark        matters      be    handled      by     a    registered

attorney, defined as "an individual who is a member in good

standing in the highest court of any state."                       Attorney Stewart

has been administratively suspended from the practice of law in

Kentucky and Minnesota since at least 2013, for non-payment of

bar dues.

     ¶7     On February 10, 2015, this court temporarily suspended
Attorney Stewart's license to practice law due to his failure to

cooperate in two separate OLR investigations.                             The OLR sent

Attorney Stewart notice of that temporary license suspension.

Attorney Stewart filed documents or otherwise took action in

five different trademark matters on March 16, 2015, April 27,

2015, May 18, 2015, and June 6, 2015.                     On October 2, 2015, the

Office of Enrollment and Discipline (OED) filed a complaint with

the USPTO against Attorney Stewart relating to his continuing


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                                                       No.     2017AP1168-D



practice before the USPTO despite not being a member in good

standing in any state bar.

    ¶8      Attorney Stewart did not respond the OED complaint and

was eventually deemed to be in default; the USPTO issued an

Initial Decision and Order on Default Judgment on December 16,

2015, finding, inter alia, that Attorney Stewart "violated 37

C.F.R. §11.505 by continuing to practice trademark law before

the USPTO despite not being a member in good standing in any

state bar."        The USPTO excluded him from practice before the

USPTO.

    ¶9      On February 10, 2016, the OED advised the OLR of this

matter.    On February 25, 2016, the OLR provided Attorney Stewart

with written notice of its formal investigation, requesting a

response    from    Attorney   Stewart.   Despite   repeated    requests,

Attorney Stewart has failed to respond to the OLR's inquiry.

    ¶10     Accordingly, the OLR's complaint alleged:

    Count One: By continuing to practice trademark law
    before the USPTO despite not being a member in good
    standing in any state bar, Attorney Stewart violated
    SCR 20:5.5(a)(1).2



    2
         SCR 20:5.5(a)(1) provides:

         A lawyer shall not practice law in a jurisdiction
    where doing so violates the regulation of the legal
    profession in that jurisdiction except that a lawyer
    admitted to practice in Wisconsin does not violate
    this rule by conduct in another jurisdiction that is
    permitted in Wisconsin under SCR 20:5.5(c) and (d) for
    lawyers not admitted in Wisconsin.


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    Count Two: By representing himself to the USPTO as an
    attorney of record in Wisconsin in four separate
    trademark applications, despite knowing that he was
    suspended from the practice of law, Attorney Stewart
    violated SCR 20:8.4(c).3

    Count Three: By willfully failing to provide the OLR
    with a written response to the OLR's investigation,
    Attorney Stewart violated SCR 22.03(2)4 and 22.03(6),5
    enforced via SCR 20:8.4(h).6




    3
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    4
        SCR 22.03(2) provides:

         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
    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  22.03(6)   provides:     "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."
    6
       SCR 20:8.4(h) provides:   "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)."


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                                                                       No.    2017AP1168-D



      ¶11   The referee was appointed on August 11, 2017.                             After

Attorney Stewart failed to file an answer to the complaint, the

OLR filed a notice of motion and motion for default judgment.

The referee conducted a scheduling conference by telephone at

which Attorney Stewart appeared pro se and admitted he had not

filed an answer and stated he had no objection to the OLR's

motion for a default judgment.                 With the referee's permission,

Attorney     Stewart     filed     a     brief     addressing          the     issue    of

sanctions, asking that any suspension be imposed concurrent with

his present disciplinary suspension.

      ¶12   The   OLR    filed     a    response    in    which    it        agreed    that

Attorney Stewart's suspension should be imposed concurrent with

his   present     disciplinary         suspension,       which    is     scheduled       to

expire on January 26, 2018.

      ¶13   The referee issued his report and recommendation on

September 22, 2017.          The referee did not rule on the OLR's

default motion, per se, but his report explains that Attorney

Stewart stated both during the scheduling conference and, in
writing, in his ensuing brief on sanctions, that he did not

oppose the motion.         As such, it is clear from the record that

Attorney Stewart received adequate notice of the default motion.

The facts of record provide a reasonable basis for the referee's

implicit finding that Attorney Stewart should be deemed to have

defaulted.

      ¶14   The referee found that based on the facts alleged in

the   complaint,        Attorney       Stewart's     failure       to        answer    the
complaint, his statements at the scheduling conference and in
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his brief, that the OLR has met its burden of proof with respect

to    proving     all    three     counts      of       misconduct      alleged         in   the

complaint.        With respect to the appropriate level of discipline,

the referee observed that continued practice of law after a

suspension is a major violation of the supreme court rules but

acknowledged        that     Attorney         Stewart's          explanation         provides

support for some leniency.              Accordingly, the referee recommended

that Attorney Stewart's license to practice law in Wisconsin be

suspended for 60 days and agreed that it was appropriate to

impose that suspension concurrent with his current suspension.

The referee further recommended that Attorney Stewart be ordered

to pay the entire cost of the disciplinary proceeding.

       ¶15    Attorney Stewart did not appeal the referee's decision

so we consider this matter pursuant to SCR 22.17(2).7

       ¶16    A   referee's       findings         of    fact    are    affirmed         unless

clearly erroneous. 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.              The    court      may    impose
whatever      sanction      it   sees       fit,    regardless         of    the    referee's

recommendation.            See   In    re    Disciplinary         Proceedings           Against

       7
           SCR 22.17(2) provides:

            If no appeal is filed timely, the supreme court
       shall review the referee's report; adopt, reject or
       modify the referee's findings and conclusions or
       remand the matter to the referee for additional
       findings;   and   determine  and   impose  appropriate
       discipline.   The court, on its own motion, may order
       the parties to file briefs in the matter.


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Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.                                        We

adopt     the    referee's         findings         of     fact   and       agree    with      the

referee's conclusions of law that Attorney Stewart violated the

supreme court rules referenced above.

       ¶17     Although Attorney Stewart was given the opportunity to

file an answer and present a defense to the OLR's complaint, he

failed to do so and advised the referee that he had no objection

to being deemed in default.                    Accordingly, we declare him to be

in default.

       ¶18     We agree with the referee that a 60-day suspension of

Attorney Stewart's license to practice law in Wisconsin, imposed

concurrent       with       his    present      suspension,           is     an     appropriate

sanction       for    his    misconduct.             Neither      the      parties       nor   the

referee cited case law in support of the recommended discipline.

However, we find the matter of In re Disciplinary Proceedings

Against      Osicka,     2014      WI    34,    353      Wis. 2d 675,        847    N.W.2d 333

instructive in two respects.                   First, a concurrent suspension is

appropriate.          All     of   the    alleged          misconduct       in     this   matter
occurred       between      March       and    October        2015.          The    underlying

disciplinary proceeding giving rise to the nine-month suspension

was filed in February 2016 and pertained to misconduct dating

from    2013    and     2014.       As    such,       it    appears        that    all    of   the

misconduct could have been addressed in a single proceeding,

which would have resulted in a single sanction.                              It thus appears

that a consecutive suspension would not be a fair or proper

result in these circumstances.                      See, e.g., Osicka, 2014 WI 34,
¶24     (imposing        license         suspension          concurrent            with     prior
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suspension where "we see no reason why the allegations in this

complaint could not have been included in the [prior complaint]

either      originally    or     by      amending    the   complaint     in    that

proceeding.")

      ¶19    Second, although all disciplinary matters are unique,

we imposed a 60-day suspension on Attorney Osicka for continuing

to practice law while his license was administratively suspended

and for failing to cooperate with the ensuing OLR investigation.

Id.   We conclude that a 60-day suspension of Attorney Stewart's

license is appropriate to protect the public, the courts, and

the   legal     system     from       repetition      of     Attorney    Stewart's

misconduct.        It will impress upon the attorney the seriousness

of his misconduct and will deter other attorneys from committing

similar misconduct.        The OLR does not seek restitution and no

restitution is ordered.          Finally, we agree with the referee that

Attorney Stewart should bear the full costs of this proceeding.

      ¶20    IT IS ORDERED that the license of Alan R. Stewart to

practice law in Wisconsin is suspended for a period of 60 days,
effective November 26, 2017, to run concurrent with the license

suspension     imposed    in   In     re   Disciplinary    Proceedings     Against

Stewart, 2017 WI 41, 374 Wis. 2d 642, 893 N.W.2d 572.

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

of this order, Alan R. Stewart shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $805.85.

      ¶22    IT IS FURTHER ORDERED that, to the extent he has not

already     done    so,   Alan      R.     Stewart   shall     comply   with    the


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provisions of SCR 22.26 concerning the duties of an attorney

whose license to practice law has been suspended.

       ¶23   IT    IS    FURTHER    ORDERED    that    the     administrative

suspension    of   Alan    R.   Stewart's    license   to    practice   law   in

Wisconsin, due to his failure to pay mandatory bar dues, failure

to file a trust account certification, and failure to comply

with   continuing       legal   education   requirements,     will   remain   in

effect until each reason for the administrative suspension has

been rectified, pursuant to SCR 22.28(1).




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