                                                         2015 WI 26

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2014AP2732-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Christopher S. Carson, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Christopher S. Carson,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST CARSON

OPINION FILED:          March 10, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                         2015 WI 26
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.     2014AP2732-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Christopher S. Carson, Attorney at Law:

Office of Lawyer Regulation,                                          FILED
            Complainant,
                                                                 MAR 10, 2015
       v.
                                                                    Diane M. Fremgen
                                                                 Clerk of Supreme Court
Christopher S. Carson,

            Respondent.




       ATTORNEY    disciplinary        proceeding.       Attorney's           license

suspended.



       ¶1   PER CURIAM.        We review a stipulation filed pursuant

to    Supreme   Court   Rule   (SCR)   22.12   by     the    Office      of    Lawyer

Regulation (OLR) and Attorney Christopher S. Carson.                          In the

stipulation, Attorney Carson agrees that he engaged in eight

counts of misconduct involving four clients.                     Attorney Carson

also agrees that a 90-day suspension of his license to practice

law in Wisconsin is an appropriate sanction for his misconduct.
                                                                        No.        2014AP2732-D



The OLR does not request restitution, and it also does not seek

the imposition of costs against Attorney Carson.

    ¶2      After careful review of the matter, we approve the

stipulation      and    agree     that    a       90-day    suspension        of     Attorney

Carson's license to practice law is an appropriate sanction.

Because this matter is being resolved without the appointment of

a referee, we do not impose any costs on Attorney Carson.

    ¶3      Attorney        Carson     was        admitted     to     practice        law    in

Wisconsin    in     1992.       The      most      recent     address       furnished       by

Attorney Carson to the State Bar of Wisconsin is New Berlin,

Wisconsin.

    ¶4      In 2008, Attorney Carson was privately reprimanded for

misconduct in two matters.               In one matter, he wrote to a judge

without copying the other lawyers.                     In the second matter, he

failed to obey a court order.              Private Reprimand 2008-15.

    ¶5      In 2009, Attorney Carson was publicly reprimanded for

misconduct in a divorce matter.                   Public Reprimand of Christopher

S. Carson, No. 2009-10.
    ¶6      On    November      26,      2014,      the     OLR     filed     a     complaint

alleging     that      Attorney      Carson        engaged     in     eight       counts    of

misconduct       involving      four     separate          clients.         The      OLR    and

Attorney      Carson        contemporaneously               filed      a          stipulation

incorporating the allegations of the complaint.

    ¶7      The first client matter detailed in the complaint and

stipulation involved Attorney Carson's representation of N.S.

In or around April of 2010, N.S. retained Attorney Carson to
represent her in two operating while intoxicated cases and a
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                                                      No.   2014AP2732-D



forthcoming felony drug possession case.        Prior to commencement

of   the    lawyer-client   relationship,     no   consensual   sexual

relationship existed between N.S. and Attorney Carson.

     ¶8     N.S.'s initial court appearance in the drug possession

case occurred in August of 2010.        N.S. and Attorney Carson both

attended the court appearance.         The court set a signature bail

bond which provided that N.S. was not to possess or consume any

alcohol or drugs.      The drug possession case was concluded in

late May of 2011.       The terms of the August 2010 bail bond

remained in effect.

     ¶9     In April of 2011, Attorney Carson and N.S. engaged in

sexual relations on two occasions.

     ¶10    The OLR's complaint alleged three counts of misconduct

with respect to Attorney Carson's relationship with N.S.:

          [COUNT ONE]   By purchasing two alcoholic drinks
     for N.S. on April 23, 2011, when the bail bond that
     N.S. signed on August 11, 2010, in Carson's presence
     prohibited her from consuming alcohol, and while the
     conditions of the bail bond were still in effect,
     Carson violated SCR 20:1.2(d).1

          [COUNT TWO] By engaging in sexual relations with
     N.S., a current client, on April 23 and 24, 2011,
     while he was representing her on criminal charges,

     1
         SCR 20:1.2(d) provides:

          A lawyer shall not counsel a client to engage, or
     assist a client, in conduct that the lawyer knows is
     criminal or fraudulent, but a lawyer may discuss the
     legal consequences of any proposed course of conduct
     with a client and may counsel or assist a client to
     make a good faith effort to determine the validity,
     scope, meaning or application of the law.


                                   3
                                                       No.    2014AP2732-D


    when a consensual sexual relationship did not exist
    between them when the lawyer-client relationship
    commenced, Carson violated SCR 20:1.8(j).2

         [COUNT THREE]     By denying to OLR's District
    Committee that he purchased clothing for N.S. during
    their trip on April 23, 2011, and by stating to OLR's
    District Committee that it was impossible for him to
    have looked through a back window at N.S.'s home and
    observe her and her boyfriend in the living room on
    April 24, 2011, because there was no such window, and
    it would have been impossible for him to see into the
    living room from the back porch, when one or both of
    such   statements   were   misrepresentations, Carson
    violated SCR 22.03(6)3 and SCR 22.04(1).4
    ¶11    The second client matter detailed in the complaint and

stipulation involved Attorney Carson's representation of M.G.

In 2005, M.G. was sentenced to 13 years of prison for repeated

first   degree   sexual   assault   of   a   child.   The    judgment   of

conviction ordered M.G. to have no contact with minor children

unless approved by his offender agent.


    2
       SCR 20:1.8(j) provides, in relevant part, that "[a] lawyer
shall not have sexual relations with a current client unless a
consensual sexual relationship existed between them when the
client-lawyer relationship commenced."
    3
       SCR 22.03(6) provides that "[i]n 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."
    4
       SCR 22.04(1) provides that "[t]he director may refer a
matter   to   a  district  committee   for   assistance in  the
investigation. A respondent has the duty to cooperate specified
in SCR 21.15(4) and 22.03(2) in respect to the district
committee. The committee may subpoena and compel the production
of documents specified in SCR 22.03(8) and 22.42."


                                    4
                                                                           No.    2014AP2732-D



    ¶12     M.G. and his wife wanted M.G. to have visitation with

their recently born daughter during his incarceration.                                    They

sought    permission      for     visits       from       M.G.'s    social       worker    and

agent.     Their requests were denied.                    They sought review of the

denial    from    the    warden,       who    upheld        the    denial,       subject    to

reconsideration          upon     successful              completion        of     treatment

programs.

    ¶13     In September of 2005, three weeks before the warden

sustained the denial of visitation, the circuit court amended

the judgment of conviction to permit M.G. to have supervised and

monitored prison visits with his daughter.                         However, the amended

judgment    did    not    strike        the    pre-existing             order    prohibiting

contact    with   minor     children          without       the    approval       of   M.G.'s

agent.

    ¶14     Visitation          was    further       denied        to    M.G.    by    prison

officials later in 2005 and again in 2006 and 2007.                              In each of

those instances, M.G. and/or his wife were informed of their

appeal rights.
    ¶15     Wisconsin       Admin.        Code        §     DOC     310     provides       the

administrative remedy framework for review of inmate complaints,

the Inmate Complaint Review System (ICRS).                               Under the ICRS,

inmate     complaints      are        first       processed        by    the     institution

complaint examiner, who makes disposition recommendations to the

reviewing authority.            An inmate dissatisfied with the reviewing

authority's decision generally may appeal it.                               The appeal is

initially    reviewed      by     a    corrections          complaint       examiner,      who
recommends a decision to the secretary of the Department of
                                              5
                                                                     No.     2014AP2732-D



Corrections (DOC).           The secretary's decision is final.                     M.G.

never used the ICRS to contest any denials of visitation in

prison with his daughter.          He never appealed under the ICRS any

denials of visitation to the secretary of the DOC.                         In addition,

M.G. failed to exhaust his administrative remedies with the DOC

for each of the denials of visitation.

       ¶16    In early 2009, M.G.'s wife retained Attorney Carson to

take    legal       action   seeking     to    permit    M.G.       to     have   prison

visitation with his daughter.                 M.G.'s wife provided Attorney

Carson with a copy of M.G.'s prison case notes, which state that

there is an appeal process.            Attorney Carson never independently

investigated whether M.G. exhausted his administrative remedies

regarding prior denials of visitation with his daughter.

       ¶17    M.G. filed three separate motions for writ of mandamus

in   the     criminal    case   seeking       to   compel     the    DOC     to   permit

visitation.         Each of the motions were eventually withdrawn.

       ¶18    The    OLR's   complaint    alleged       the   following       count   of

misconduct with respect to Attorney Carson's handling of M.G.'s
case:

            [COUNT FOUR]   After being hired to represent an
       incarcerated man who had unsuccessfully sought prison
       visitation with his minor child, and after being
       provided with "prison case notes" stating that an
       appeals process had been explained to the man and that
       notice of appeal rights had been sent to the man's
       wife, by failing to obtain information about the
       administrative appeal process within the Department of
       Corrections or familiarize himself on the relevant law
       and codes on the appeal process; and/or by thereafter
       seeking visitation rights by filing a series of three
       motions in the client's prior criminal case instead of
       first exhausting the client's administrative remedies

                                          6
                                                                          No.     2014AP2732-D


       and by failing to file a motion against the State of
       Wisconsin in the proper venue, Carson violated
       SCR 20:1.1.5
       ¶19    The third client matter detailed in the complaint and

stipulation involved Attorney Carson's representation of L.W.,

who was sentenced in Milwaukee County circuit court to 42 months

in    prison,     followed     by    42    months       of   extended           supervision,

following his conviction for possession with intent to deliver

THC.       On July 20, 2010, while on extended supervision, L.W.'s

extended supervision was revoked by the DOC for two counts of
sex with a child and one count of failing to report to his

agent, all of which occurred in 2009.

       ¶20    Two days later, L.W. was convicted in Milwaukee County

circuit court for two counts of second degree sexual assault of

a child and one count of child enticement.                        The child involved

was    the    same   child    that   was     the    subject     of    L.W.'s        extended

supervision       revocation.         On     the       new   conviction,           L.W.   was

sentenced to nine years in prison, followed by seven years of

extended supervision.

       ¶21    In late 2011 or early 2012, L.W. retained Attorney
Carson       to   challenge    the        2010     revocation      of       his     extended

supervision from the 2002 drug case, on the basis that L.W.

received      ineffective      assistance         of    counsel      at     the     extended

supervision revocation hearing.                  The time to file a petition for

       5
       SCR 20:1.1 provides that "[a] lawyer shall provide
competent representation to a client.    Competent representation
requires   the   legal   knowledge,   skill,   thoroughness   and
preparation reasonably necessary for the representation."


                                             7
                                                                         No.     2014AP2732-D



writ of certiari from the extended supervision revocation had

expired in 2010, so Attorney Carson filed a petition for writ of

habeas   corpus       in   Milwaukee          County      circuit    court.       Wisconsin

Stat. § 801.50(4)(b) requires that a petition for writ of habeas

corpus   be    filed       in    the    county      "[w]here       the   liberty      of   the

plaintiff is restrained if the action seeks relief concerning

any other matter relating to a restraint on the liberty of the

plaintiff."         At     the    time    Attorney          Carson   filed      the   habeas

petition,      L.W.      was     incarcerated          at    Redgranite        Correctional

Institution (RGCI), which is located in Waushara County.

       ¶22    Wisconsin         Stat.    § 782.04(1)         provides     that    a   habeas

petition must state "the person by whom imprisoned and the place

where,   naming       both       parties,      if     their    names     are     known,     or

describing them if they are not."                         Attorney Carson failed to

name   the    warden       at    RGCI    in    the     petition.         Wisconsin     Stat.

§ 782.10 requires that a habeas petition be served upon the

warden or left with an underofficer at the institution that has

charge of the inmate.              Attorney Carson only mailed the petition
to the warden.           Wisconsin Stat. § 782.04 requires that a habeas

petition be verified.             The petition filed by Attorney Carson was

not verified.

       ¶23    In   the     conclusion         of    the   habeas     petition,     Attorney

Carson requested "the remedy of immediate release."                             However, if

the writ was granted, the remedy would be a new hearing on

L.W.'s ineffective assistance claim, not release.                              In addition,

at the time the petition was filed, L.W. was less than two years
into a nine-year prison sentence for the sexual assault of a
                                                8
                                                                         No.   2014AP2732-D



child    conviction,    so    no       action      of   the   circuit      court     on   the

habeas     petition      could          have       resulted         in    release         from

incarceration.

    ¶24     The assistant legal counsel for the DOC filed a motion

to dismiss the petition and to declare a "strike" against L.W.

under the Prisoner Litigation Reform Act.                       The assistant legal

counsel filed a separate motion for sanctions against Attorney

Carson, seeking a finding that the habeas petition was frivolous

and seeking an award of actual attorneys fees.                           Attorney Carson

voluntarily      dismissed        the     habeas        petition,        and   the    DOC's

assistant legal counsel agreed to dismiss her motions to dismiss

and for sanctions.

    ¶25     In     February       of    2012,      Attorney    Carson      filed      a   new

petition for writ of habeas corpus in Waushara County circuit

court.     The DOC's assistant legal counsel filed a motion to

dismiss the second petition and to declare a "strike" against

L.W. under the Prisoner Litigation Reform Act.                             The assistant

legal    counsel    filed     a    separate        motion     for    sanctions       against
Attorney Carson, again seeking a finding that the second habeas

petition was frivolous and seeking an award of actual attorneys

fees.

    ¶26     Attorney Carson thereafter filed his own motion for

sanctions against the DOC's assistant legal counsel.                           The second

habeas petition and the sanction motions were heard in April of

2012.    The circuit court denied the second habeas petition and

set the matter for additional briefing and a continued hearing
as to the sanctions motions.                   In May of 2012, Attorney Carson
                                               9
                                                             No.     2014AP2732-D



withdrew his motion for sanctions against the DOC's assistant

legal counsel.     The hearing continued in September of 2012.                At

the close of the hearing, the circuit court concluded that the

second habeas petition was frivolous.            The parties exchanged fee

submissions and at an October 2012 hearing, the circuit court

ordered Attorney Carson to pay attorneys fees and costs totaling

$1,788.50.    Attorney Carson appealed, and the court of appeals

summarily    affirmed     and   remanded   for     the    determination       and

assessment against Attorney Carson of attorneys fees and costs

reasonably incurred by the State in the appeal.

    ¶27     The   OLR's   complaint   alleged     the    following    count   of

misconduct with respect to Attorney Carson's handling of L.W.'s

case:

         [COUNT FIVE]    By making multiple errors in a
    petition for a writ of habeas corpus that he filed in
    Milwaukee County Circuit Court on January 3, 2012,
    including filing the petition in the wrong county,
    failing to verify the petition by signing it under
    oath, misstating the number of charges of which his
    client   had    been   convicted,    and    seeking  an
    inappropriate   remedy,   eventually    dismissing  the
    petition and filing a revised petition in Waushara
    County in which he corrected some, but not all, of his
    previous errors, Carson violated SCR 20:1.1.
    ¶28     The final client matter detailed in the complaint and

stipulation involved Attorney Carson's representation of A.E.

A.E. met with Attorney Carson in July of 2010 for a consultation

regarding possible divorce representation.              At the conclusion of

the consultation, A.E. gave Attorney Carson a $700 advanced fee,

but instructed him not to use the funds and to take no further
action on her behalf unless her husband filed for a divorce.

                                      10
                                                              No.     2014AP2732-D



Attorney Carson did not deposit the $700 into his office trust

account     but   rather   deposited    it   into    his     office     business

account.     Attorney Carson later told an OLR investigator that he

deposited the $700 advanced fee into his office business account

because it was a flat fee for representation of A.E. in an

uncontested divorce.       Attorney Carson never provided A.E. with

the written notice set forth in SCR 20:1.15(b)(4m).

    ¶29     By March of 2011, A.E. began to consider initiating

the divorce proceedings and met with Attorney Carson for legal

advice.      She paid Attorney Carson an additional $200, which

Attorney Carson deposited into his office business account.                    On

March 17, 2011, A.E. wrote to Attorney Carson saying she still

had not decided when to file for divorce.              On March 31, 2011,

A.E. sent Attorney Carson a certified letter informing him that

she and her husband were reconciling and that she would not need

Attorney Carson's services.        A.E. requested a refund of the $700

advanced fee she paid in July of 2010.             Attorney Carson did not

respond to A.E.'s refund request.
    ¶30     On June 3, 2011, A.E. sent Attorney Carson a second

certified    letter   indicating    that     the    letter    was     her   final

request for him to return her $700 advanced fee.              Later in June,

Attorney Carson informed A.E. that she was not entitled to a

refund of any portion of her advanced fee.

    ¶31     A.E. filed a grievance with the OLR against Attorney

Carson in August of 2011.          Attorney Carson told an OLR intake

investigator that the $700 constituted a flat fee.                  The intake
investigator directed Attorney Carson to provide A.E. with the
                                       11
                                                 No.     2014AP2732-D



SCR 20:1.15(b)(4m) written notice regarding fee accounting and

dispute resolution upon termination of representation.     Attorney

Carson prepared a letter titled "Termination of Services Letter

and Accounting of Fees" addressed to A.E., which indicated that

it was to be sent to her at the email address shown on the

letter.   Attorney Carson sent the letter to that email address,

but the address contained a typographical error and consequently

was not received by A.E.

    ¶32   The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Carson's representation of

A.E.:

          [COUNT SIX]    By receiving a $700 advanced fee
    from [A.E.] on or about July 26, 2010, in anticipation
    of possible representation in a divorce and depositing
    those    funds  into   his  business  account  without
    utilizing the alternative fee placement measures
    permitted under SCR 20:1.15(b)(4m), Carson violated
    SCR 20:1.15(b)(4).6

         [COUNT SEVEN] Having received a March 31, 2011,
    letter from [A.E.] in which she terminated the legal
    representation and inquired as to the possibility of
    having her advanced fee returned to her, by failing
    until June 2011 (and only after subsequent inquires
    from [A.E.]) to address the matter of the advanced fee
    either by refunding a portion of the advance or by
    promptly   informing  [A.E.]   that   no  refund   was



    6
       SCR 20:1.15(b)(4) provides that "[e]xcept 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."


                               12
                                                   No.    2014AP2732-D


forthcoming in light of             work   performed,    Carson
violated SCR 20:1.16(d).7

     [COUNT EIGHT]     In September 2011, by sending a
"termination of services letter and accounting of
fees" to [A.E.] (at an incorrect email address) that
incorrectly stated that a refund of an advanced fee
was possible only in hourly fee cases, and only
sending his letter more than five months after
[A.E.'s] termination of the legal representation in a
belated effort to comply with the alternative fee
placement measures permitting deposit of an advanced
fee   into   a  business    account,   Carson  violated
                     8
SCR 20:1.15(b)(4m)b.


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.
8
    SCR 20:1.15(b)(4m)b. provides:

     Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:

      1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;

     2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and

                                                         (continued)
                               13
                                                                             No.     2014AP2732-D



          ¶33    In the stipulation, Attorney Carson represents that he

fully understands the misconduct allegations, fully understands

the ramifications should the court impose the stipulated level

of    discipline,          fully      understands           his   right     to     contest     the

matter,         and   fully        understands        his    right    to     counsel.          The

stipulation also avers that Attorney Carson's entry into the

stipulation was made knowing, voluntarily, and without coercion

by any person or agency, and that his entry into the stipulation

represents        his      admission       of   all     misconduct         recited       and   his

assent to the level and type of discipline sought by the OLR

director.

          ¶34    Upon careful consideration of this matter, we approve

the       stipulation         and    adopt      the    stipulated          facts    and    legal

conclusions of professional misconduct.                           We further find that a

90-day suspension of Attorney Carson's license to practice law

in    Wisconsin       is      an    appropriate       sanction       for    his    misconduct.

Because Attorney Carson entered into a comprehensive stipulation

under SCR 22.12, thereby obviating the need for the appointment
of    a    referee      and    a    full   disciplinary           proceeding,       we    do   not

impose any costs in this matter.




               3. notice that, if the lawyer is unable to
          resolve the dispute to the satisfaction of the client
          within 30 days after receiving notice of the dispute
          from the client, the lawyer shall submit the dispute
          to binding arbitration.


                                                 14
                                                           No.   2014AP2732-D



    ¶35   IT    IS   ORDERED   that   the   license   of   Christopher    S.

Carson to practice law in Wisconsin is suspended for a period of

90 days, effective April 9, 2015.

    ¶36   IT IS FURTHER ORDERED that Christopher S. Carson 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.

    ¶37   IT    IS   FURTHER    ORDERED     that   compliance    with    all

conditions of this order is required for reinstatement.                  See

SCR 22.28(2).




                                      15
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