                                                                2015 WI 88

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2014AP2535-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Joseph M. Capistrant, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Joseph M. Capistrant,
                                  Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST CAPISTRANT

OPINION FILED:          August 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                        2015 WI 88
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2014AP2535-D


STATE OF WISCONSIN                            :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Joseph M. Capistrant, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
             Complainant,
                                                                AUG 18, 2015
      v.
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
Joseph M. Capistrant,

             Respondent.




      ATTORNEY     disciplinary         proceeding.     Attorney's          license
suspended.


      ¶1     PER CURIAM.    We review Referee Daniel L. Icenogle's
recommendation that the court suspend the Wisconsin law license
of Attorney Joseph M. Capistrant for a period of 90 days for
professional     misconduct.      The    referee     also     recommended        that
Attorney Capistrant pay the costs of the proceeding, which total
$574.94 as of June 1, 2015.
                                                                          No.     2014AP2535-D



        ¶2      Because     no   appeal     has    been   filed,          we     review    the
referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).1
After conducting our independent review of the matter, we agree
with the referee that, based on Attorney Capistrant's failure to
answer the complaint filed by the Office of Lawyer Regulation
(OLR), the OLR is entitled to a default judgment.                                We further
agree with the referee that Attorney Capistrant's professional
misconduct warrants a 90-day suspension of his Wisconsin law
license, and that he should be ordered to pay the full costs of
the proceeding.
        ¶3      Attorney Capistrant was admitted to practice law in
Wisconsin       in   2007.       Attorney    Capistrant        is    also       licensed    to

practice law in Minnesota.
        ¶4      According        to   the         OLR's    complaint,               Attorney
Capistrant's Wisconsin law license is currently suspended for
his failure to comply with mandatory continuing legal education
(CLE)        reporting     requirements,      failure     to        pay    bar     dues    and
assessments,         and   failure    to    file   the    required         trust     account
certification.



        1
            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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      ¶5     According        to        the        OLR's      complaint,           Attorney
Capistrant's Wisconsin law license was suspended during certain
periods in the years 2010 through 2012 for his failure to comply
with mandatory CLE reporting requirements.
      ¶6     The OLR filed the current complaint against Attorney
Capistrant in October 2014.              The complaint alleges eight counts
of    professional         misconduct         in        connection    with         Attorney
Capistrant's work in seven legal matters during the years 2010
through 2012.
      ¶7     Repeating the allegations of each separate matter here
is   not   necessary.        Attorney         Capistrant's      conduct       followed    a
common theme.          He practiced law with a suspended law license and

without telling clients, courts, and opposing counsel about his
license    suspension.        He    failed         to    diligently       pursue    certain
cases, including matters that he allowed to languish after the
circuit court or opposing counsel voiced concerns about his law
license status.          He used letterhead that stated he was "admitted
in the State of Wisconsin" when his Wisconsin law license was
suspended.
      ¶8     The       complaint   also        alleges      that     in     April    2011,
Attorney Capistrant filed a petition for reinstatement of his
Wisconsin        law   license,    in    which      he     failed    to    disclose     all
incidents of practice during his period of suspension.
      ¶9     Based on this course of conduct, the OLR alleged in

its complaint that Attorney Capistrant:
             •    practiced law on behalf of various clients despite
                  the fact that his Wisconsin law license had been
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         suspended,    contrary      to    SCR     31.10(1)2      and
         SCR 22.26(2),3   enforced   via   SCR   20:8.4(f)4    (Count
         One);




2
    SCR 31.10(1) provides:

     If a lawyer fails to comply with the attendance
requirement of SCR 31.02, fails to comply with the
reporting requirement of SCR 31.03(1), or fails to pay
the late fee under SCR 31.03(2), the board shall serve
a notice of noncompliance on the lawyer. This notice
shall advise the lawyer that the lawyer’s state bar
membership   shall  be  automatically   suspended  for
failing to file evidence of compliance or to pay the
late fee within 60 days after service of the notice.
The board shall certify the names of all lawyers so
suspended under this rule to the clerk of the supreme
court, all supreme court justices, all court of
appeals and circuit court judges, all circuit court
commissioners appointed under SCR 75.02(1) in this
state, all circuit court clerks, all juvenile court
clerks, all registers in probate, the executive
director of the state bar of Wisconsin, the Wisconsin
State Public Defender’s Office, and the clerks of the
federal district courts in Wisconsin.   A lawyer shall
not engage in the practice of law in Wisconsin while
his or her state bar membership is suspended under
this rule.
3
    SCR 22.26(2) provides:

     An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice   of  law  or   in  any  law   work  activity
customarily done by law students, law clerks, or other
paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.



                              4
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         •   failed    to     act     with       reasonable          diligence         and
             promptness in several client matters, contrary to
             SCR 20:1.35 (Count Two);
         •   failed    to    advise       clients,      courts,          and     opposing
             counsel    of   the     suspension         of    his    Wisconsin         law
             license, and thereby failed to explain matters to
             the   extent     reasonably          necessary         to    permit       his
             clients    to    make       an    informed       decision          regarding
             representation,        contrary      to    SCR    20:1.4(b)6          (Count
             Three);    engaged      in       conduct   involving          dishonesty,
             fraud,    deceit,      or       misrepresentation,           contrary      to
             SCR 20:8.4(c)7 (Count Four); failed to notify his

             clients by certified mail of his license suspension
             and   failed    to     advise      them    to    seek       legal     advice




    4
       SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
    5
       SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
    6
       SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
    7
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."



                                         5
                                                                 No.   2014AP2535-D



             elsewhere,      contrary    to    SCR     22.26(1)(a)     and   (b),8
             enforced via SCR 20:8.4(f) (Count Five); and failed
             to provide written notification of his suspension
             and inability to act as an attorney to the courts
             and     to       opposing             counsel,       contrary      to
             SCR 22.26(1)(c),9 enforced via SCR 20:8.4(f) (Count
             Six);
         •   failed to keep his clients reasonably informed and
             to    explain     matters        to     the      extent   reasonably
             necessary to permit his clients to make an informed
             decision     regarding      representation,           contrary     to



    8
       SCR 22.26(1)(a) and (b) provide that, on or before the
effective date of license suspension, an attorney whose license
is suspended shall "[n]otify by certified mail all clients being
represented in pending matters of the suspension or revocation
and of the attorney's consequent inability to act as an attorney
following the effective date of the suspension or revocation"
and "[a]dvise the clients to seek legal advice of their choice
elsewhere."
    9
       SCR 22.26(1)(c) provides that, on or before the effective
date of license suspension, an attorney whose license is
suspended shall:

         Promptly provide written notification to the
    court or administrative agency and the attorney for
    each party in a matter pending before a court or
    administrative agency of the suspension or revocation
    and of the attorney's consequent inability to act as
    an attorney following the effective date of the
    suspension or revocation.    The notice shall identify
    the successor attorney of the attorney's client or, if
    there is none at the time notice is given, shall state
    the client's place of residence.



                                    6
                                                                       No.        2014AP2535-D



                 SCR 20:1.4(a)(3)10 and SCR 20:1.4(b) (Count Seven);
                 and
             •   made    false      or      misleading       communications             about
                 himself      and     his        legal   services,       contrary          to
                 SCR 20:7.1(a)11 and SCR 20:7.5(a)12 (Count Eight).
     ¶10     The OLR personally served the complaint and an order
to answer on Attorney Capistrant.                  Attorney Capistrant failed to
file an answer, and the OLR moved for default judgment.
     ¶11     The    referee    sent      notice     of   a   hearing    on        the   OLR's
motion     for     default    judgment      by     certified     mail        to     Attorney
Capistrant, who signed for the certified letter but failed to
appear for the hearing.

     ¶12     The referee issued a decision recommending that this
court grant the OLR's motion for default judgment.                           In so doing,


     10
       SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
     11
       SCR 20:7.1(a) provides that a lawyer shall not make a
false or misleading communication about the lawyer or the
lawyer's   services,  such   that  it  "contains  a   material
misrepresentation of fact or law, or omits a fact necessary to
make the statement considered as a whole not materially
misleading."
     12
          SCR 20:7.5(a) provides:

          A lawyer shall not use a firm name, letterhead or
     other professional designation that violates SCR
     20:7.1. A trade name may be used by a lawyer in
     private practice if it does not imply a connection
     with a government agency or with a public or
     charitable legal services organization and is not
     otherwise in violation of SCR 20:7.1.



                                             7
                                                                           No.      2014AP2535-D



the referee implicitly incorporated by reference the allegations
in the OLR's complaint and deemed them established.                              The referee
also recommended a 90-day suspension of Attorney Capistrant's
Wisconsin law license and the imposition of the full costs of
this proceeding against him.
        ¶13    Attorney Capistrant did not appeal from the referee's
report and recommendation.                  Thus, we proceed with our review of
the matter 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.
        ¶14    We   agree    with       the     referee      that    Attorney       Capistrant
should    be     declared        in    default.          Although      the    OLR     effected
personal       service      of        its   complaint,         and    although        Attorney
Capistrant was given notice of the hearing on the motion for
default       judgment,     he     failed     to      appear    or   present     a    defense.
Accordingly, we deem it appropriate to declare him in default.
        ¶15    We agree with the referee that the allegations in the
OLR's     complaint         have       been     established          and     that     Attorney
Capistrant engaged in the eight counts of misconduct alleged in
the     complaint.          We        further        agree   that     a    90-day      license
suspension is an appropriate sanction for Attorney Capistrant's
misconduct.         See, e.g., In re Disciplinary Proceedings Against
                                                 8
                                                                  No.     2014AP2535-D



Grady, 2003 WI 144, 267 Wis. 2d 115, 671 N.W.2d 649 (imposing a
90-day      license      suspension     for    attorney's      representation       of
clients      for    two    years      after     license   suspension       and     his
subsequent denial of this conduct to OLR staff).                         Finally, we
agree that Attorney Capistrant should pay the full costs of the
proceeding.
      ¶16    IT IS ORDERED that the license of Joseph M. Capistrant
to   practice      law    in   Wisconsin      is   suspended   for   a    period    of
90 days, effective September 17, 2015.
      ¶17    IT IS FURTHER ORDERED that within 60 days of the date
of this order, Joseph M. Capistrant shall pay to the Office of
Lawyer Regulation the costs of this proceeding.

      ¶18    IT IS FURTHER ORDERED that Joseph M. Capistrant 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.
      ¶19    IT    IS     FURTHER     ORDERED      that   compliance       with    all
conditions of this order is required for reinstatement.                            See
SCR 22.28(2).




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    No.   2014AP2535-D




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