                                                              2017 WI 11

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1971-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Thad M. Gegner, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Thad M. Gegner,
                                  Respondent.
                            DISCIPLINARY PROCEEDINGS AGAINST GEGNER

OPINION FILED:          February 17, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                             2017 WI 11
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.     2015AP1971-D


STATE OF WISCONSIN                                 :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Thad M. Gegner, Attorney at Law:


Office of Lawyer Regulation,                                              FILED
            Complainant,                                             FEB 17, 2017
       v.                                                               Diane M. Fremgen
                                                                     Clerk of Supreme Court
Thad M. Gegner,

            Respondent.




       ATTORNEY      disciplinary         proceeding.         Attorney's         license

revoked.


       ¶1   PER CURIAM.           The court has before it a report and

recommendation filed on October 12, 2016, by Referee James G.

Curtis.     The report recommends that this court accept Attorney

Thad   M.   Gegner's    petition     for     consensual       license      revocation,

revoke his license to practice law in Wisconsin, and order him

to pay restitution to certain aggrieved parties, including the

Wisconsin    Lawyers'       Fund    for    Client       Protection        (the     Fund).
Attorney    Gegner     is   the    subject    of   a    disciplinary         proceeding
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alleging     that   he   committed       47   counts    of     misconduct         in    11

different client matters, as well as an allegation of practicing

law after suspension.         He is also the subject of four additional

pending Office of Lawyer Regulation (OLR) grievance matters that

have not yet been fully investigated by the OLR.

      ¶2     We agree with the referee that both revocation and

restitution are appropriate.             We also agree with the referee's

recommendation that Attorney Gegner should pay the full costs of

this proceeding, which are $2,019.58 as of October 31, 2016.

      ¶3     Attorney Gegner was admitted to the practice of law in

Wisconsin in 2003.        He does not have a disciplinary history.

His Wisconsin law license has been suspended since April 17,

2015, for non-cooperation with the OLR in certain of the matters

at issue in this case.

      ¶4     On   September    28,   2015,     the     OLR    filed       a    complaint

against Attorney Gegner, setting forth 24 counts of misconduct

over six client matters and an allegation of practicing law

after      suspension.        The    complaint         requested          a     two-year
suspension, plus payment of restitution and costs.                            On January

6, 2016, the OLR filed an amended complaint against Attorney

Gegner, setting forth 47 counts of misconduct over 11 client

matters and an allegation of practicing law after suspension.

The   amended     complaint    requested      revocation,          plus       payment   of

restitution and costs.          Attorney Gegner retained counsel.                       At

the parties' request, the referee stayed the proceedings while

the parties discussed the possibility of Attorney Gegner filing
a petition for consensual license revocation pursuant to Supreme
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                                                     No.   2015AP1971-D



Court Rule (SCR) 22.19.     On September 22, 2016, Attorney Gegner

filed such a petition.

     ¶5     In his petition, Attorney Gegner acknowledges that he

cannot successfully defend himself against the allegations in

the amended complaint, which is attached to his petition as

Appendix A.     He also acknowledges that he cannot successfully

defend himself against four pending investigative matters that

have not been publicly charged, a summary of which is attached

to his petition as Appendix B.

     ¶6     On September 29, 2016, the OLR filed a recommendation

supporting Attorney Gegner's SCR 22.19 petition.               The referee

filed a report on October 12, 2016, recommending revocation and

restitution.    On   November    30,   2016,   the     referee    filed   a

recommendation on costs, in which he advised the court to impose

full costs on Attorney Gegner.         On October 26, 2016, the OLR

filed a restitution statement, which it later supplemented in a

December 29, 2016 filing.       In those filings, the OLR states that

Attorney Gegner should pay restitution as recommended by the
referee.1




     1
       The  referee   determined  that  Attorney   Gegner  owes
restitution to his former clients Dianna C., Kristin L., and
Diane J., as well as to a subrogated party (American Family
Mutual Insurance Company) in the Diane J. matter.   The referee
further determined that Attorney Gegner owes restitution to the
Wisconsin Lawyers' Fund for Client Protection for amounts it
paid to former clients Dianna C., Diane J., Cody W., Donald C.,
and Jose O.


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      ¶7    No appeal has been filed in this matter, so our review

proceeds pursuant to SCR 22.17(2).

      ¶8    We     revoke     Attorney         Gegner's       Wisconsin          law     license

effective the date of this order.                     The scope of his misconduct

is vast and troubling.               It is not necessary to set forth the

particular factual allegations of every instance of misconduct

in every client matter involved in this case.                             Doing so would be

overly     cumbersome,       given       that    the        amended        complaint         alone

alleges almost four dozen misconduct counts, described in some

231   separately          numbered       paragraphs.            A     synopsis          of    the

information contained in the attachments to Attorney Gegner's

petition for revocation will provide a sufficient description of

the nature and scope of his professional misconduct.

      ¶9    As stated above, the OLR's amended complaint in this

disciplinary        proceeding,          attached      as      Appendix           A     to    the

revocation        petition,      sets      forth       47     counts        of        misconduct

involving 11 different clients and an allegation of practicing

law   after       suspension.             The     alleged       misconduct              involved
violations of the following supreme court rules:                                      SCR 20:1.3

(failing    to     act    with   reasonable        diligence         and        promptness      in

representing       a     client);    SCR 20:1.4(a)(3)           (failing           to    keep   a

client reasonably informed about the status of a matter); SCR

20:1.4(a)(4)        (failing        to    promptly          comply        with        reasonable

requests     by    the     client        for    information);             SCR    20:1.5(b)(3)

(failing     to     promptly        respond      to     a     client's           request      for




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                                                                  No.    2015AP1971-D



information    concerning           fees    and      expenses);    SCR    20:1.15(b)(4)2

(failing to deposit advanced payments of fees and costs into

trust account); SCR 20:1.15(d)(1) (failing to notify a client

promptly after receiving funds in which a client has an interest

and promptly deliver the funds absent an agreement or legal

requirement to do otherwise); SCR 20:1.16(d) (failing to take

steps   to     protect        client's         interests        upon    termination        of

representation);        SCR     20:3.3(a)(1)           (knowingly       making    a    false

statement     of   fact    to       a    tribunal);       SCR    20:3.4(c)    (knowingly

disobeying an obligation under the rules of a tribunal); SCR

20:8.4(c)     (engaging        in       conduct      involving     dishonesty,        fraud,

deceit or misrepresentation); SCR 22.03(2) and (6), enforced via

SCR 20:8.4(h) (failing to promptly and fully cooperate with an

OLR investigation); and SCR 31.10(1) (engaging in the practice

of law after a suspension for failing to satisfy continuing

legal education requirements).

    ¶10      The   OLR's      summary       of    misconduct      allegations         in   the

four pending investigative matters that have not been publicly
charged,     attached     as    Appendix         B   to   the    revocation      petition,

summarizes    alleged      violations          or    potential     violations         of   the

following supreme court rules:                    SCR 20:1.3 (failing to act with

    2
       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.


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reasonable diligence and promptness in representing a client);

SCR 20:1.4(a)(3) (failing to keep a client reasonably informed

about the status of a matter); SCR 20:1.4(a)(4) (failing to

promptly    comply   with     reasonable       requests         by    the    client      for

information);      SCR    20:1.5(a)        (charging     an     unreasonable         fee);

SCR 20:1.15(d)(1)        (failing    to     notify   a    client       promptly       after

receiving funds in which a client has an interest and promptly

deliver the funds absent an agreement or legal requirement to do

otherwise);   SCR    20:1.15(g)(1)          (failing      to    notify       clients      of

withdrawal    of     non-contingent           fees       from        trust       account);

SCR 20:1.16(d)      (failing    to    take    steps      to     protect      a   client's

interests    upon    termination       of    representation);              SCR 20:3.4(c)

(knowingly    disobeying       an    obligation        under         the    rules   of    a

tribunal);    SCR        20:8.4(c)     (engaging         in     conduct          involving

dishonesty, fraud, deceit or misrepresentation); SCR 21.15(4)

(failing to cooperate with an OLR investigation); SCR 22.03(2)

and (6), enforced via SCR 20:8.4(h) (failing to promptly and

fully   cooperate     with     an    OLR    investigation);            and    SCR     22.26
(failing to comply with the duties of a person whose license to

practice law in Wisconsin has been suspended).

    ¶11     We find instructive the referee's synopsis of Attorney

Gegner's misconduct:

    The facts established by OLR portray a repeated
    pattern of serious misconduct from 2011 into 2015.
    The facts establish a law practice that was spiraling
    out of control. Mr. Gegner would fail to communicate
    with his clients and would fail to perform the legal
    work and services that were necessary.    He would at
    times misrepresent the status of his work to both the

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                                                         No.     2015AP1971-D


    clients and court.    He misused and converted client
    funds and failed to provide any accounting.       The
    record establishes numerous aggravating factors in
    this case and based on the Petition for Revocation by
    Consent, no mitigating factors have been shown.
"[T]o make matters worse," the referee noted, "there are at

least 13 counts relating to Mr. Gegner's obstinate failure to

cooperate with OLR's investigations, contrary to SCR 22.03(2)

and (6)."

    ¶12     Attorney Gegner's petition for consensual revocation

states     that     he   cannot       successfully      defend     against      the
allegations of professional misconduct set forth above.                         His

petition    asserts      that    he   is   seeking     consensual     revocation

freely, voluntarily, and knowingly, and that restitution should

be imposed.       He states that he understands he is giving up his

right to contest the OLR's allegations.                He has counsel in this

matter.    The OLR supports Attorney Gegner's petition.

    ¶13     As stated above, Referee Curtis has filed a report in

this matter.       The referee determined, based on Attorney Gegner's

petition    and    the   OLR's    response,     that    there     exists   clear,

satisfactory, and convincing evidence that Attorney Gegner has

engaged in the misconduct alleged in the OLR's amended complaint

in this disciplinary proceeding and in the OLR's summary of the

matters still in the investigative process.                He recommends that

we accept the petition, order restitution, and revoke Attorney

Gegner's license to practice law.

    ¶14     When    reviewing     a    report   and    recommendation      in    an

attorney disciplinary proceeding, we affirm a referee's findings
of fact unless they are found to be clearly erroneous.                       In re

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                                                                   No.     2015AP1971-D



Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305

Wis. 2d 71, 740 N.W.2d 125. We review the referee's conclusions

of law on a de novo basis.                    Id.     We determine the appropriate

level of discipline given the particular facts of each case,

independent      of    the       referee's       recommendation,          but    benefitting

from it.    In re Disciplinary Proceedings Against Widule, 2003 WI

34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

    ¶15     We    agree      with       the     referee     that     Attorney         Gegner's

petition for consensual revocation should be granted.                                 Attorney

Gegner     has    engaged          in   a       widespread      pattern          of     serious

professional misconduct that has harmed his clients.                                     He is

either   unwilling          or    unable        to   conform    his       conduct       to   the

standards    that      are       required       to   practice   law       in     this   state.

Anything less than a revocation of his law license would unduly

depreciate the seriousness of his misconduct, fail to protect

the public and the court system from further misconduct, and

inadequately      deter          similar      misbehavior       by       other    attorneys.

Revocation is clearly deserved.
    ¶16     We        now    consider            restitution.              The        referee's

recommendations        for       restitution         are   consistent       with      Attorney

Gegner's petition and the OLR's recommendation on that petition.3

    3
       The referee noted in his report that, according to the
OLR's recommendation on Attorney Gegner's SCR 22.19 petition,
the Fund authorized payments to some of Attorney Gegner's former
clients after he agreed in his petition to pay restitution to
them.     The referee recommended that Attorney Gegner make
restitution to the Fund for these payments; Attorney Gegner has
not objected.


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We order Attorney Gegner to pay $652.88 to former client Dianna

C.; $1,000 to former client Kristin L.; $2,638.90 to American

Family Mutual Insurance Company; $3.10 to former client Diane

J.;   and        $10,894    to    the    Wisconsin   Lawyers'       Fund   for    Client

Protection, attributable to the Fund's payments to the following

former clients:            $3,100 to Dianna C., $2,694 to Diane J., $1,800

to Cody W., $1,700 to Donald C., and $1,600 to Jose O.

      ¶17        We make one further observation (and ruling) on the

issue       of    restitution.           In    the   OLR's    December      29,      2016

supplemental restitution statement, the OLR stated that it would

not seek restitution for a $1,000 payment to Attorney Gegner's

former client, Michelle A., which the Fund approved on December

14, 2016.         The OLR explained that, notwithstanding this payment

by    the    Fund,     the       OLR's    investigation      did    not    identify     a

reasonably ascertainable amount of restitution to seek in the

Michelle A. matter, and therefore it had not sought restitution

in this matter, and would not do so now.                     Mindful that the Fund

is financed by State Bar of Wisconsin members' annual fees, we
fail to see why the $1,000 payment by the Fund to Michelle A.

should be financed by members of the bar who have not engaged in

misconduct, as opposed to Attorney Gegner, who has conceded his

misconduct in the Michelle A. matter.                   We acknowledge that the

Fund's $1,000 payment to Michelle A. was not addressed in the

consensual revocation petition or in the referee's report, but

we cannot envision any scenario in which Attorney Gegner could

avoid reimbursing the Fund for this payment.                       We therefore order
Attorney Gegner to reimburse the Fund in this amount.                            To the
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extent that Attorney Gegner disagrees with this court's ruling

on this point, he is free to move the court to reconsider its

ruling.

    ¶18       Finally,   and    consistent       with     the      referee's

recommendation,     we   determine    that   Attorney   Gegner     should   be

required to pay the full costs of this proceeding.                   See SCR

22.24(1m).

    ¶19       IT IS ORDERED that the petition for consensual license

revocation is granted.

    ¶20       IT IS ORDERED that the license of Thad M. Gegner to

practice law in Wisconsin is revoked, effective the date of this

order.

    ¶21       IT IS FURTHER ORDERED that Thad M. Gegner pay

restitution in the following amounts:

             $652.88 to former client Dianna C.;

             $1,000 to former client Kristin L.;

             $2,638.90   to    American       Family     Mutual
              Insurance Company;

             $3.10 to former client Diane J.; and

             $11,894 to the Wisconsin Lawyers' Fund for
              Client   Protection,  attributable to  the
              Fund's payments to the following former
              clients:    $3,100 to Dianna C.; $2,694 to
              Diane J.; $1,800 to Cody W.; $1,700 to
              Donald C.; $1,600 to Jose O; and $1,000 to
              Michelle A.
    ¶22       IT IS FURTHER ORDERED that within 60 days of the date

of this order, Thad M. Gegner shall pay to the Office of Lawyer



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Regulation the costs of this proceeding, which are $2,019.58 as

of October 31, 2016.

    ¶23   IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

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

already done so, Thad M. Gegner shall comply with the provisions

of SCR 22.26 concerning the duties of a person whose license to

practice law in Wisconsin has been revoked.




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