                                                         2018 WI 42

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2017AP2529-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Holly Lynn Fulkerson, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Holly Lynn Fulkerson, f/k/a Holly Lynn Strop,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST FULKERSON

OPINION FILED:          April 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                        2018 WI 42
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2017AP2529-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Holly Lynn Fulkerson, Attorney at Law:

Office of Lawyer Regulation,
                                                                     FILED
           Complainant,
                                                                APR 20, 2018
      v.
                                                                   Sheila T. Reiff
Holly Lynn Fulkerson, f/k/a Holly                               Clerk of Supreme Court
Lynn Strop,

           Respondent.




      ATTORNEY    disciplinary     proceeding.            Attorney         publicly

reprimanded.


      ¶1   PER   CURIAM.   We    review   a       stipulation        pursuant       to

Supreme Court Rule (SCR) 22.12 between the Office of Lawyer
                                                                          No.    2017AP2529-D



Regulation       (OLR)    and   Attorney        Holly    Lynn    Fulkerson.1              The

stipulation       provides      that    Attorney        Fulkerson          committed      six

counts      of    professional          misconduct       arising           out     of     the

representation of a single client and jointly requests that the

court publicly reprimand Attorney Fulkerson for her professional

misconduct.

      ¶2     After carefully reviewing the matter, we accept the

stipulation and impose the requested public reprimand.                                  We do

not require Attorney Fulkerson to pay any restitution, as none

was requested by the OLR.              Although there was a prior submission

of a proposed consensual public reprimand to a referee, this

disciplinary proceeding has been resolved by a stipulation under

SCR 22.12 without the appointment of a referee.                           Thus, we do not

impose any costs on Attorney Fulkerson.

      ¶3     Attorney Fulkerson was admitted to the practice of law

in   this   state    in    June     2001.       According       to    the       information

provided to the State Bar, Attorney Fulkerson has most recently

engaged     in    the     private      practice    of     law        in     Blue    Mounds,
Wisconsin.

      1
       This case was originally filed under the caption Office of
Lawyer Regulation v. Holly Lynn Strop.     We have recently been
informed, however, that the Board of Bar Examiners has approved
the change of the name under which the respondent may practice
law in this state from Holly Lynn Strop to Holly Lynn Fulkerson.
See SCRs 10.03(2) and 40.14(3).    Consequently, we have changed
the caption of this matter to list the respondent's name as
Holly Lynn Fulkerson and we refer to the respondent throughout
the text of this opinion as Holly Lynn Fulkerson so that this
disciplinary opinion corresponds with the name under which the
respondent is currently practicing law.


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       ¶4      Attorney         Fulkerson            has       been        the         subject      of

professional discipline on one prior occasion.                                         In 2015 she

consented to the imposition of a private reprimand for failing

to act with reasonable diligence, failing to protect a client's

interests, failing to keep a client reasonably informed, making

a   frivolous       discovery         request        or    failing      to    make       reasonably

diligent       efforts        to   comply       with       a    discovery          request,        and

knowingly         disobeying        an     obligation           under      the     rules      of     a

tribunal.           Private        Reprimand         No.       2015-28       (electronic          copy

available                at           https://compendium.wicourts.gov/app/raw/

002845.html).

       ¶5      This matter was initially submitted to a referee as a

proposed consensual public reprimand under SCR 22.09.                                       At that

time     the      OLR     was      alleging        seven        counts       of        professional

misconduct, which Attorney Fulkerson conceded.                                   After reviewing

the submission, the referee declined to approve the consensual

reprimand.          He    pointed        to    the    presence        of     seven       counts     of

misconduct and the existence of the previous private reprimand.
He stated that he was particularly concerned with the fact that

Attorney       Fulkerson        had   agreed         to    represent       the     clients        even

though      she    did    not      have       prior       experience         handling       medical

malpractice matters and that she appeared not to have adequately

sought      guidance      from     other      experienced         attorneys            or   educated

herself.

       ¶6      Following        the      refusal      of    the    consensual            reprimand,

Attorney Fulkerson sent a lengthy letter to the OLR providing
additional,        highly       personal       mitigating         information.               In    its
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memorandum in support of the current SCR 22.12 stipulation, the

OLR asserts that Attorney Fulkerson has been "forthright and

cooperative"        throughout       the    OLR's    investigation       and    that    her

letter did not attempt to avoid responsibility for or minimize

her conduct.         To the contrary, the OLR states that her letter

demonstrated        that     she    had    understood       her   misconduct     and    was

making changes in her life that will result in her being a

better, more diligent lawyer.                The OLR then submitted the matter

to    the   Preliminary           Review   Committee,        which    found     cause    to

proceed on six of the seven original counts.                             The OLR then

reconsidered the sanction question, but ultimately determined

that, especially in light of the mitigating information provided

by Attorney Fulkerson and the totality of the information in the

OLR's file, a public reprimand was still the most appropriate

level of discipline to seek.                The OLR then concluded that rather

than submit a second consensual reprimand to a referee under SCR

22.09, it would pursue a SCR 22.12 stipulation with Attorney

Fulkerson that would be submitted to this court for a decision.
       ¶7     In     the     resulting       stipulation,         Attorney      Fulkerson

represents         that     she    understands       the     misconduct       allegations

against her and her right to contest them, that she admits them,

and    that    she        agrees    with    the     OLR's     recommended       level   of

discipline.           Attorney        Fulkerson       further        states    that     she

understands her right to consult with another attorney regarding

these matters, that she understands the ramifications of the

stipulated level of discipline, and that she is entering into


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the stipulation knowingly and voluntarily.                            The stipulation also

states that it was not the product of plea-bargaining.

       ¶8        The counts of misconduct to which Attorney Fulkerson

is stipulating arise from her representation of La.G. and Li.G.

(collectively,            "the    G.s").            Li.G's       illness     and     subsequent

complications had caused her to spend nearly a year in various

hospitals         and     nursing       care        facilities.          The       G.s'     health

insurance         carrier       had   also     denied       coverage     for    approximately

$27,000 in Li.G.'s medical expenses on the ground that certain

services         had    been     medically      unnecessary.             The    G.s       retained

Attorney Fulkerson to pursue coverage for the unpaid medical

expenses and to address a potential malpractice claim against

certain health-care providers.

       ¶9        Attorney       Fulkerson      initially          sent   a     letter      to   the

health insurance carrier appealing the denial of coverage for

the certain medical expenses.                   The insurer denied the appeal.

       ¶10       The    G.s      and     Attorney           Fulkerson        then        discussed

proceeding         with     a    lawsuit.               Attorney      Fulkerson      agreed     to
represent the G.s on a contingent fee basis, but she failed to

draft        a     written        fee    agreement              memorializing         that      fee

arrangement.

       ¶11       In November 2012 the G.s gave a check in the amount of

$270    to       Attorney      Fulkerson       to       cover   the    filing      fee    for   the

anticipated civil action.                Attorney Fulkerson (or someone on her

behalf) negotiated that check on December 6, 2012, depositing

the funds into Attorney Fulkerson's personal account.                                     Attorney


                                                    5
                                                                             No.    2017AP2529-D



Fulkerson has acknowledged to the OLR that the funds should have

been held in trust.

       ¶12     At the time she began her representation of the G.s,

Attorney       Fulkerson          had        no     experience          litigating        medical

malpractice         cases.         Early          in   the       representation          Attorney

Fulkerson informed the G.s of her lack of experience in such

cases, but told them that she believed that she was familiar

with the standards of care required in medical facilities, as

she had worked in the health-care field for 15 years.                                    Prior to

initiating the civil action, which contained medical malpractice

claims, Attorney Fulkerson did not seek guidance concerning the

specifics of litigating medical malpractice claims.                                 During the

course    of    the    representation,              Attorney       Fulkerson       did    consult

with   several        attorneys         about       general       information       concerning

litigation procedures and tactics.

       ¶13     Attorney Fulkerson prepared a draft complaint, which

she sent to the G.s for their review in October 2013.                                    The G.s

reviewed the complaint and returned it to Attorney Fulkerson
within a month.

       ¶14     On   June     2,   2014,       Attorney          Fulkerson    filed       a    civil

action    in    the    Dane       County          circuit       court   on   Li.G.'s         behalf

against      the      health      insurer           and     a    number      of    health-care

providers.          Pursuant to Wis. Stat. § 655.445(1), because the

complaint alleged claims for bodily injury resulting from the

provision of professional services or the failure to provide

professional          services          by        health-care       providers,           Attorney
Fulkerson should have filed a request for mediation with the
                                                   6
                                                                     No.      2017AP2529-D



director of state courts, but she failed to do so.                            It should

also      be   noted     that    under       Wis.     Stat.     § 655.445(3),       where

mediation      must     be    requested,       no    discovery     requests       may   be

propounded and no scheduling or pretrial court conferences may

occur until after the mediation period has expired.

       ¶15     In July 2014 Attorney Fulkerson sent a letter to the

circuit court advising that she would be out of town from August

10   to    October     1,     2014,    and    asking     the    court    to    hold     any

conference after that date.              Attorney Fulkerson did acknowledge

that she could be available by telephone if the court wished to

meet with the parties before that time.                       Attorney Fulkerson did

not send a copy of the letter to her clients or otherwise relay

this information to them.

       ¶16     In August 2014 Attorney Fulkerson sustained an injury,

making her unable to work full-time until February 2015.

       ¶17     The circuit court did conduct a scheduling conference

on     September       24,     2014.         Attorney     Fulkerson        appeared     by

telephone.          During      the    conference        opposing       counsel    again
reminded her of the need to file a request for mediation.

       ¶18     Attorney Fulkerson ultimately did file the mediation

request, and a mediation session was scheduled for February 10,

2015.      Attorney Fulkerson, however, was not adequately prepared

for the mediation, which prevented the parties and the mediator

from having a meaningful exchange and resulted in the mediation

being terminated.            Consequently, no written report was prepared.

       ¶19     In   mid-February        2015        Attorney    Fulkerson       accepted
employment with a large health insurance company.                             She began
                                              7
                                                                             No.     2017AP2529-D



that position during the first week of March 2015.                                     Attorney

Fulkerson, however, did not inform the G.s of her new position

and her inability to continue to represent them until May 7,

2015,   approximately          two    months          later.          After        having   been

informed    of    the     situation,           the    G.s     chose     to    have     Attorney

Fulkerson    seek    a    dismissal        of        the    pending     complaint       without

prejudice.        Attorney Fulkerson filed a motion to withdraw as

counsel.     During a subsequent telephone scheduling conference,

Attorney     Fulkerson        moved       to     dismiss       the     complaint        without

prejudice, which the circuit court granted.

    ¶20     Attorney Fulkerson told the G.s that she would provide

them with the names of other attorneys they could contact about

taking over the representation.                        Attorney Fulkerson, however,

failed to ever provide any such names, despite an email message

from the G.s asking for that information.

    ¶21     The     G.s       did     eventually             meet     with     three        other

attorneys, but all three declined to accept the representation.

One of those attorneys informed the G.s that they had until
September 13, 2015, to re-file a complaint before the expiration

of the statute of limitations.                   Attorney Fulkerson had failed to

advise the G.s of this deadline.                     The G.s never re-filed Li.G.'s

complaint, and any claims she might have had became time-barred.

    ¶22     On    the     basis      of    these           stipulated    facts,        Attorney

Fulkerson has admitted the following six counts of professional

misconduct.        First,      by    agreeing          to    represent       the     G.s    on   a

contingent fee basis but failing to enter into a written fee
agreement    signed      by    the    clients,         Attorney       Fulkerson        violated
                                                8
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SCR 20:1.5(c).2           Second,      Attorney    Fulkerson      violated     former

SCR 20:1.15(b)(4)3 when she deposited the $270 check from the G.s

into       her   personal    account    rather    than     into   a   client   trust

account.         Third,     by   failing   to    acquire    the   legal    knowledge


       2
           SCR 20:1.5(c) provides:

            A fee may be contingent on the outcome of the
       matter for which the service is rendered, except in a
       matter in which a contingent fee is prohibited by par.
       (d) or other law. A contingent fee agreement shall be
       in a writing signed by the client, and shall state the
       method by which the fee is to be determined, including
       the percentage or percentages that shall accrue to the
       lawyer in the event of settlement, trial or appeal;
       litigation and other expenses to be deducted from the
       recovery; and whether such expenses are to be deducted
       before or after the contingent fee is calculated. The
       agreement must clearly notify the client of any
       expenses for which the client will be liable whether
       or not the client is the prevailing party. Upon
       conclusion of a contingent fee matter, the lawyer
       shall provide the client with a written statement
       stating the outcome of the matter and if there is a
       recovery, showing the remittance to the client and the
       method of its determination.
       3
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.

       Former SCR 20:1.15(b)(4) provided:

            Except as provided in par. (4m) unearned fees and
       advanced payments of fees shall be held in trust until
       earned by the lawyer, and withdrawn pursuant to sub.
       (g).   Funds advanced by a client or 3rd party for
       payment of costs shall be held in trust until the
       costs are incurred.


                                           9
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needed     to   represent   Li.G.    in    a    medical   malpractice     action,

including knowledge regarding the requirement of mediation in

medical     malpractice     cases,    Attorney      Fulkerson     violated    SCR

20:1.1.4        Fourth, Attorney Fulkerson failed to pursue Li.G.'s

claims with reasonable diligence, in violation of SCR 20:1.3.5

Fifth, Attorney Fulkerson's failure to inform the G.s that if

the   initial     lawsuit   on   Li.G.'s       behalf   was   dismissed   without

prejudice, they would have until September 13, 2015 to re-file

the action constituted a violation of SCR 20:1.4(b).6                     Finally,

Attorney Fulkerson violated SCR 20:1.16(d)7 in multiple ways,

including by failing to inform the G.s in a timely manner that

she needed to withdraw from representing them due to her new

      4
       SCR 20:1.1 provides: "A lawyer shall provide competent
representation to a client.    Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
      5
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
      6
       SCR 20:1.4(b) provides: "A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."
      7
          SCR 20:1.16(d) provides:

           Upon termination of representation, a lawyer
      shall take steps to the extent reasonably practicable
      to protect a client's interests, such as giving
      reasonable notice to the client, allowing time for
      employment of other counsel, surrendering papers and
      property to which the client is entitled and refunding
      any advance payment of fee or expense that has not
      been earned or incurred. The lawyer may retain papers
      relating to the client to the extent permitted by
      other law.


                                          10
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employment; by failing to withdraw from the representation until

two months after she had begun her new position; by failing to

provide the names of possible successor counsel, as she had

promised; and by failing to inform the G.'s of the date by which

they   would       need   to   re-file    the      lawsuit      to    avoid    the   claims

becoming time-barred.

       ¶23    Attorney Fulkerson agrees with the OLR's position that

the appropriate level of discipline for the misconduct described

above would be a public reprimand.                   In its memorandum in support

of the stipulation, the OLR compares and contrasts a number of

disciplinary        matters     with     similar      types      of    misconduct      that

resulted in public reprimands or 60-day suspensions.                                 Compare

Public Reprimand of Colleen J. Locke, No. 2013-3 (electronic

copy         available          at       https://compendium.wicourts.gov/app/

raw/002551.html), Public Reprimand of Sarah Clemment, No. 2011-6

(electronic        copy   available      at    https://compendium.wicourts.gov/

app/raw/002365.html), and Public Reprimand of Daniel F. Snyder,

No.          2016-5            (electronic            copy            available          at
https://compendium.wicourts.gov/app/raw/002864.html) with                             In re

Disciplinary Proceedings Against Moldenhauer, 2016 WI 43, 369

Wis. 2d 1, 879 N.W.2d 605 (imposing 60-day suspension), and In

re Disciplinary Proceedings Against Boyle, 2015 WI 110, 365 Wis.

2d 649, 872 N.W.2d 637 (imposing 60-day suspension).

       ¶24    In    the   end    we    agree       with   the    OLR    that    a    public

reprimand is the appropriate level of discipline in this case.

Attorney Fulkerson has been admitted to the practice of law in
this    state      for    approximately        17     years     and     has    previously
                                              11
                                                                   No.    2017AP2529-D



received only a private reprimand.                   While her misconduct here

was   serious,      it    did     not   involve      intentional    misconduct      or

dishonesty.        It was limited to a single client representation,

where Attorney Fulkerson unfortunately agreed to handle a matter

in    an    area   of     the     law   where     she    lacked    experience      and

competence.        We also note the mitigating factors referenced by

the OLR.

      ¶25    We    believe      that    Attorney     Fulkerson's    misconduct      is

similar in nature and severity to the misconduct committed by

Attorney Locke.          Public Reprimand of Colleen J. Locke, No. 2013-

3.     Attorney Locke had received one prior public reprimand,

while Attorney Fulkerson has a previous private reprimand.                       Like

Attorney Fulkerson, Attorney Locke agreed to represent a client

in an area of the law in which she had little experience (a

bankruptcy proceeding).             She repeatedly failed to file correct

forms and schedules in the bankruptcy proceeding, which caused

delays, a motion to dismiss from the bankruptcy trustee, and her

termination from the representation.                     Attorney Locke admitted
that she had violated SCRs 20:1.1 (lack of competence), 20:1.3

(lack of diligence), and 20:1.5(b) and (c) (failure to enter

into written fee agreement and failure to properly explain basis

and rate of the fee).             In addition, unlike Attorney Fulkerson,

in a separate matter Attorney Locke also admitted that she had

violated SCR 20:8.4(c) by falsely testifying under oath that she

had represented herself in a prior divorce proceeding.                          While

Attorney     Fulkerson      has    admitted     to   a   couple    more   counts    of
misconduct than did Attorney Locke, the primary thrust of both
                                           12
                                                                       No.     2017AP2529-D



matters is that the lawyers demonstrated a lack of competence

and a lack of diligence, as well as failed to enter into proper

written fee agreements.           Given Attorney Locke's additional false

testimony   under       oath,   we     cannot      say    that   Attorney       Fulkerson

deserves a more severe level of discipline.

    ¶26     In    its    memorandum,      the      OLR    states      that    it   is    not

seeking restitution.            It notes that the only money Attorney

Fulkerson received from the G.s was the $270.                          While Attorney

Fulkerson   failed       to    maintain      that    amount      in   trust,       she   did

ultimately use it to pay filing fees on behalf of the G.s.

Thus, there are no funds belonging to the G.s that Attorney

Fulkerson has wrongfully retained.

    ¶27     After carefully reviewing this matter, we accept the

stipulation and impose the requested public reprimand.                             For the

reasons   given    by    the    OLR,    we    do    not    impose     any     restitution

obligation on Attorney Fulkerson.                   Finally, although a referee

did review and refuse a prior proposed consensual reprimand,

this disciplinary proceeding has been resolved at its outset
through a stipulation without the need for the appointment of a

referee or the incurring of legal fees by the OLR.                           Accordingly,

we do not impose costs on Attorney Fulkerson.

    ¶28     IT IS ORDERED that Holly Lynn Fulkerson is publicly

reprimanded for her professional misconduct.




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    No.   2017AP2529-D




1
