                                                             2015 WI 16

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2014AP1523-D
COMPLETE TITLE:         Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        John F. Koenig,
                                  Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST KOENIG

OPINION FILED:          February 17, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                            2015 WI 16
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.     2014AP1523-D


STATE OF WISCONSIN                              :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John F. Koenig, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
             Complainant,
                                                                  FEB 17, 2015
       v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
John F. Koenig,

             Respondent.




       ATTORNEY       disciplinary      proceeding.         Attorney's        license

suspended.



       ¶1    PER CURIAM.       We review a report and recommendation of

referee James C. Boll, approving a stipulation filed by the

Office of Lawyer Regulation (OLR) and Attorney John F. Koenig.

In    the   stipulation,     Attorney    Koenig       admitted      one     count     of

misconduct as alleged in the complaint filed by the OLR.                            The

parties     jointly     recommended     that,    as     a    sanction        for    his

misconduct,       Attorney   Koenig's       license     to    practice        law     in
Wisconsin    be    suspended    for   two    years     and    that     he    also     be
                                                                      No.     2014AP1523-D



required      to    make    restitution     to    his   former      law     firm   in    the

amount      of    $12,020.      Because     Attorney       Koenig    entered       into    a

comprehensive stipulation, the OLR recommends that no costs be

assessed against him.

       ¶2        Upon careful review of the matter, we agree with the

referee's findings of fact and conclusions of law.                           We conclude

that    a    two-year       suspension    of     Attorney    Koenig's        license      to

practice law is an appropriate sanction for his misconduct.                               We

further agree that Attorney Koenig should make restitution to

his former law firm in the amount of $12,020.                       Finally, we agree

that, under the specific facts of this case, it is appropriate

not to assess any costs against Attorney Koenig.

       ¶3        Attorney    Koenig   was       admitted    to      practice       law    in

Wisconsin in 1997 and practices in Milton.                       He was previously

employed with the law firm of Kohls and Associates LLC.                                  The

firm practices primarily in estate planning and frequently bills

on a flat fee basis.              Clients are billed after the work is

completed.
       ¶4        Attorney Koenig's employment with the firm ended on

August 31, 2013, after the firm discovered that Attorney Koenig

had been embezzling funds from it.

       ¶5        Attorney Koenig quoted and collected fees from clients

that were larger than what he reported and turned in to the

firm.       He would have clients pay him directly for some or all of

the work he performed.             He either did not report the money to

the firm or would tell the firm that he charged the client a
lesser amount.         In some cases, Attorney Koenig manually created
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an invoice for the client that was for a larger amount than that

stated by the firm in its accounting system.                 He would keep the

difference between the two invoice amounts.

      ¶6    Attorney    Koenig   accepted   payments         from    the     firm's

clients    without    the   firm's   knowledge    and   then        cashed   those

checks at Summit Credit Union where he maintained an account.

He also received money for legal work that he performed for

acquaintances who paid him directly.             Attorney Koenig normally

performed such work during regular law firm office hours and he

used the firm's equipment, supplies, and staff.                       Although a

Kohls firm attorney would have been permitted to perform work

for   family   or    perhaps   close   friends    at    no    charge,      it   was

understood by the firm's employees that any legal work performed

by an employee should be reported to the firm.                       It was also

understood by the firm's employees that all billings for legal

work should be reported to the firm.

      ¶7    Attorney Koenig received other funds for honorariums

and   reimbursements    for    presenting   continuing        legal    education
programs or public workshops that he also did not turn over to

the firm.

      ¶8    After the firm learned of Attorney Koenig's actions,

Attorney Koenig requested Summit Credit Union to provide all

checks that were presented but not deposited into his account at

the credit union.       He received that information and provided it

to the firm and to the OLR.

      ¶9    Attorney Koenig admitted accepting a total of $39,920
in payments for legal work from firm clients or other parties
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using firm resources in 37 separate instances without notifying

the firm of such payments.            As an offset towards the money he

improperly took, Attorney Koenig forfeited his final paycheck

from the firm in the gross amount of $27,900.

      ¶10   On July 7, 2014, the OLR filed a complaint against

Attorney Koenig alleging the following count of misconduct:

           [Count One] By receiving at least $39,920 in
      legal fees for legal work he performed for clients of
      his law firm employer or for legal work he performed
      for other third parties using the firm's time,
      equipment, supplies, and staff without reporting such
      fees to the firm, and by falsifying billing statements
      that he provided to the firm in order to cover up his
      embezzlement, Koenig violated [Supreme Court Rule
      (SCR)] 20:8.4(c) and SCR 20:8.4(f).1
      ¶11   The complaint sought a two-year suspension of Attorney

Koenig's license to practice law in Wisconsin.                        Attorney Koenig

filed an answer on July 29, 2014, admitting all allegations in

the     complaint   as     true.       Referee         Boll     was     appointed         on

September 4, 2014.

      ¶12   On   September      30,   2014,     the     parties       entered      into    a

stipulation      whereby       Attorney       Koenig        agreed    to     the     OLR's
recommendation for a two-year suspension of his license.                               The

stipulation averred that Attorney Koenig fully understood the

misconduct allegations and his right to contest the matter; he

fully     understood     the    ramifications          of    his     entry    into    the

      1
       SCR 20:8.4(c) and (f) provide, respectively, that it is
professional misconduct for a lawyer to "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation" or to
"violate a statute, supreme court rule, supreme court order or
supreme court decision regulating the conduct of lawyers."

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                                                                    No.        2014AP1523-D



stipulation;      he    fully   understood      his       right    to    consult        with

counsel; and his entry into the stipulation was made knowingly

and voluntarily and was not the result of coercion nor plea-

bargaining.

       ¶13   On   October     30,   2014,     the   referee       issued       his    final

decision.     Based on the stipulation, the referee found by clear,

satisfactory,       and     convincing      evidence       that    Attorney          Koenig

violated the supreme court rules as alleged in Count One of the

OLR's complaint.           The referee also recommended that Attorney

Koenig's license to practice law in Wisconsin be suspended for

two years and that he be required to make restitution to his

former law firm in the amount of $12,020.

       ¶14   On November 19, 2014, the OLR filed a statement of

costs showing costs in the amount of $921.63.                     The OLR takes the

position     that,        because    Attorney       Koenig        entered         into     a

comprehensive stipulation, no costs should be assessed against

him.

       ¶15   This court will adopt a referee's findings of fact
unless   they     are     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    Widule,     2003 WI 34,        ¶44,    261 Wis. 2d 45,

660 N.W.2d 686.

       ¶16   We    adopt      the    referee's        findings          of     fact      and
conclusions of law that Attorney Koenig violated the supreme
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court rules as alleged in Count One of the OLR's complaint.                          We

also   agree       with    the   referee   that    a     two-year     suspension     of

Attorney Koenig's license is an appropriate sanction for the

misconduct at issue here.             A two-year suspension is consistent

with the level of discipline imposed in somewhat similar cases.

See,    e.g.,      In     re   Disciplinary     Proceedings      Against      Cotter,

171 Wis. 2d 373, 491 N.W.2d 475 (1992).

       ¶17   We also agree with the referee that Attorney Koenig

should be required to make restitution to his former law firm in

the amount of $12,020.               We further agree that, based on the

particular        circumstances       present     in      this   matter,       it   is

appropriate not to assess any costs against Attorney Koenig.

       ¶18   IT IS ORDERED that the license of John F. Koenig to

practice     law    in    Wisconsin   is   suspended      for    a   period   of    two

years, effective March 19, 2015.

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

of this order, John F. Koenig shall make restitution to the law

firm of Kohls and Associates LLC in the amount of $12,020.
       ¶20   IT     IS     FURTHER    ORDERED     that     compliance      with     all

conditions of this order is required for reinstatement.                             See

SCR 22.29(4m)(c).

       ¶21   IT IS FURTHER ORDERED that John F. Koenig shall comply

with the provisions of SCR 22.26 concerning the duties of an

attorney whose license to practice law has been suspended.




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