                                                                         2020 WI 4

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:                 2017AP666-D


COMPLETE TITLE:           In the Matter of Disciplinary Proceedings
                          Against Terry L. Constant, Attorney at Law:

                          Office of Lawyer Regulation,
                                    Complainant-Respondent-Cross-
                          Appellant,
                               v.
                          Terry L. Constant,
                                    Respondent-Appellant-Cross-Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST CONSTANT

OPINION FILED:            January 28, 2020
SUBMITTED ON BRIEFS:      October 24, 2019
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
HAGEDORN, J. dissents (opinion filed)
NOT PARTICIPATING:



ATTORNEYS:



      For the respondent-petitioner-cross-respondent, there were
briefs filed by Terry L. Constant, Kenosha.


      For the complainant-respondent-cross-appellant, there was a
brief    filed       by   Jonathan   E.   Hendrix    and   Office   of    Lawyers
Regulation, Madison.
                                                                                  2020 WI 4
                                                                        NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.    2017AP666-D


STATE OF WISCONSIN                                    :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Terry L. Constant, Attorney at Law:

Office of Lawyer Regulation,
                                                                              FILED
                 Complainant-Respondent-
                 Cross-Appellant,                                        JAN 28, 2020
      v.                                                                     Sheila T. Reiff
                                                                         Clerk of Supreme Court
Terry L. Constant,

                 Respondent-Appellant-
                 Cross-Respondent.




      ATTORNEY           disciplinary     proceeding.            Attorney's          license

suspended.


      ¶1     PER CURIAM.         Attorney Terry L. Constant has appealed a

report     and    recommendation        filed   by    Referee        Dennis     J.    Flynn,

concluding        that    Attorney   Constant        committed        eight     counts      of

professional       misconduct     and    recommending          that     his    license      to

practice law in Wisconsin be suspended for five months.                            Attorney

Constant argues that the referee mistakenly allowed his bank

records into evidence; that the Office of Lawyer Regulation (OLR)
failed to meet its burden of proof as to the eight counts of
                                                                    No.     2017AP666-D



misconduct;    that     the    referee    erred      in    making   a     credibility

determination; and that a five-month suspension of his license to

practice law is an excessive sanction.               The OLR has filed a cross-

appeal arguing that a five-month suspension is insufficient and

that this court should suspend Attorney Constant's license for at

least one year.

      ¶2     Upon   careful     review    of    this      matter,   we    uphold    the

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

that a six-month suspension of Attorney Constant's Wisconsin law

license is an appropriate sanction for the misconduct at issue.

We also find it appropriate to follow our normal custom of imposing

the   full   costs    of      this    disciplinary        proceeding,      which    are

$13,409.63 as of December 10, 2019, on Attorney Constant.

      ¶3     Attorney      Constant    was     admitted     to   practice     law   in

Wisconsin in 1968 and practices in Kenosha.                       He has no prior

disciplinary history.

      ¶4     On April 14, 2017, the OLR filed a complaint alleging

nine counts of misconduct.            In 2009, M.B. hired Attorney Constant
to represent her in a personal injury case.                      In 2010 and 2011,

Attorney Constant disbursed 13 checks from his trust account at

U.S. Bank in connection with M.B.'s claim.                  Attorney Constant had

not   deposited      any    funds     into     the     trust     account     for    his

representation of M.B. when he wrote the checks.

      ¶5     In January 2012, Attorney Constant filed a lawsuit on

behalf of M.B. in Kenosha County Circuit Court.                  In the first half

of 2013, Attorney Constant settled M.B.'s claim for $175,000.
Between June 14 and July 5, 2013, Attorney Constant disbursed six
                                          2
                                                                  No.    2017AP666-D



checks from his client trust account totaling $3,144 in connection

with M.B.'s case.            One of the checks was payable to Attorney

Constant in the amount of $1,000.                     During this time period,

Attorney Constant had not deposited any funds into his trust

account for M.B.'s case.

     ¶6      On    July    9,    2013,     Attorney    Constant   deposited      the

$175,000 settlement check into his trust account.                       He did not

promptly notify M.B. in writing that he had received and deposited

the funds.      Attorney Constant's settlement statement showed he was

entitled to $50,000 in attorney's fees and $5,290.93 in costs.

     ¶7      Between July 11, 2013 and October 10, 2013, Attorney

Constant disbursed $57,300 in attorney fees and $2,028.71 for costs

in the M.B. matter out of funds in his trust account.                   After these

disbursements,       the     trust   account    held    $178,359.13,      of   which

$115,421.29 was attributable to M.B.'s case.

     ¶8      During November and December of 2013, Attorney Constant

transferred $16,200 from his trust account to his business account

without identifying the client matter. During the same time frame,
Attorney Constant withdrew $4,600 in cash from the trust account

without identifying the purpose or client matter.                 On December 31,

2013, the trust account had a balance of $86,386.58.                     It should

have held $115,421.29 in the M.B. matter alone.

     ¶9      The $175,000 settlement amount was subject to numerous

liens,    and     Attorney      Constant   negotiated     settlements     with   the

lienholders so that M.B. would recover a portion of the $175,000.

On January 10, 2014, Attorney Constant disbursed a $21,882.35 trust
account check to the federal government in the M.B. matter.                    After
                                            3
                                                                No.   2017AP666-D



issuing this check, the trust account held $70,108.53.                  Attorney

Constant should have been holding $93,538.94 for the M.B. matter

alone.

      ¶10      On January 21, 2014, Attorney Constant issued a check

for $40,000 to M.B. in partial payment of the settlement funds.

At that point his trust account should have held $53,538.94 in

remaining funds for M.B., but the entire balance in the trust

account was $19,021.16.

      ¶11      On January 2, 2015, Attorney Constant's trust account

had a balance of $363.11.           On January 13, 2015, Attorney Constant

deposited $800,000 into the trust account which was unrelated to

the M.B. matter.        Attorney Constant's trust account records show

that on January 14, 2015 he disbursed $25,000 from the trust

account to himself for reimbursement of costs in the M.B. matter.

      ¶12      On January 16, 2015, Attorney Constant issued a $10,000

trust account check to M.B.            Without the $800,000 deposit a few

days earlier, which was not related to M.B.'s case, the trust

account did not have enough funds to cover the $10,000 check.
      ¶13      Attorney Constant's trust account records show that on

February 7, 2015, he paid M.B. $4,540.58.               As of the date the OLR

filed    its    complaint,    Attorney   Constant    retained    $2,100.65     in

settlement proceeds due to M.B.             The record indicates that during

the   prosecution      of    this   case,    Attorney    Constant     made   full

restitution to M.B.

      ¶14      On April 22, 2014, Attorney Constant transferred $15,000

in personal funds from his business account to his trust account,
raising the balance of the trust account to $15,759.57.
                                         4
                                                                  No.    2017AP666-D



     ¶15    On   October    29,    2014,      Attorney       Constant    deposited

$9,500.94 into his trust account in connection with the K.C.

matter.    After this deposit, the trust account had a balance of

$9,548.98.

     ¶16    On October 30, 2014, Attorney Constant withdrew $4,300

in attorney fees from his trust account and deposited that amount

into his business account.             The remaining balance in the trust

account was then $5,248.98.

     ¶17    On October 31, 2014, Attorney Constant wrote two trust

account checks, one for $68.30 for a lien in the K.C. case and

$1,467.32 to K.C.

     ¶18    On   November   3,    2014,      Attorney    Constant       transferred

$2,000 from his trust account to his business account. On November

4, 2014, Attorney Constant withdrew $500 in cash from the trust

account.     On November 5, 2014, Attorney Constant withdrew $1,500

in cash from the trust account, leaving a balance of $1,248.98.

That same day, U.S. Bank denied payment on Attorney Constant's

October    31,   2014   check     in   the    amount    of    $1,467.32     due   to
insufficient funds.      On November 7, 2014, U.S. Bank denied payment

on the check again, as Attorney Constant had not deposited any

additional funds into the trust account.

     ¶19    After the denial of payment by U.S. Bank, Attorney

Constant wrote a replacement check payable to K.C. in the amount

of $1,467.32.     The replacement check cleared the trust account on

November 17, 2014.

     ¶20    In October and November of 2014, Attorney Constant made
13 cash withdrawals totaling $11,730 from his trust account.
                                         5
                                                    No.   2017AP666-D



During October and December of 2014, Attorney Constant made eight

electronic transfers from the trust account into his business

account.   He had made other electronic transfers from the trust

account to the business account since July 2013.

     ¶21   Attorney Constant maintained a transaction register for

October and November of 2014, but it did not include accurate

balances following his transactions; the date, payee, and amount

of all disbursements; a $500 transfer from the trust account to

the business account; various checks that were issued; return of

the K.C. checks that caused the overdrafts; the identity of all

clients for whom Attorney Constant disbursed funds; and accurate

dates for the transactions.

     ¶22   Attorney Constant's client ledgers did not consistently

contain accurate dates, amounts of deposits and disbursements

which he had made on his clients' behalf, nor did it consistently

contain balances of funds remaining in the trust account pertaining

to each client.

     ¶23   In November 2014, Attorney Constant's bank informed the
OLR of the overdrafts in Attorney Constant's trust account.       On

December 9, 2014, the OLR notified Attorney Constant of its

investigation into the overdrafts.      During the investigation,

Attorney Constant provided the OLR with trust account and client

records that were sometimes inconsistent with each other and

incomplete.   During the investigation, Attorney Constant wrote to

the OLR representing he had not made cash withdrawals from his

trust account.


                                 6
                                                    No.   2017AP666-D



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

misconduct:

    Count One:    By making disbursements from the trust
    account on behalf of M.B. prior to any funds having been
    deposited into the client trust account attributable to
    her   matter,   Attorney   Constant    violated   former
    SCR 20:1.15(f)(1)b. 1


    Count Two:    By failing to provide M.B. with written
    notice of receipt of the $175,000 settlement proceeds
    received in trust during July, 2013; by failing to
    promptly deliver and distribute all of the settlement
    proceeds to M.B.; and by failing to provide M.B. with a
    written settlement statement setting forth a full
    accounting regarding the property and final distribution
    of the property, Attorney Constant violated former SCR
    20:1.15(d)(1) and (d)(2).2

    1  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, 2016 WI 21 (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(f)(1)b. provided:

         A subsidiary ledger shall be maintained for each
    client or 3rd party for whom the lawyer receives trust
    funds that are deposited in an IOLTA account or any other
    pooled trust account.     The lawyer shall record each
    receipt and disbursement of a client's or 3rd party's
    funds and the balance following each transaction.       A
    lawyer shall not disburse funds from an IOLTA account or
    any pooled trust account that would create a negative
    balance with respect to any individual client or matter.
    2   Former SCR 20:1.15(d)(1) and (d)(2) provided:

         (1) Upon receiving funds or other property in which
    a client has an interest, or in which the lawyer has
    received notice that a 3rd party has an interest
    identified by a lien, court order, judgment, or
    contract, the lawyer shall promptly notify the client or
    3rd party in writing. Except as stated in this rule or
                                 7
                                                  No.   2017AP666-D


    Count Three: By converting, via electronic transfers to
    his business account and cash withdrawals, funds he held
    in trust in the M.B. matter and other matters, Attorney
    Constant violated SCR 20:8.4(c).3

    Count Four:    By failing to have funds in his trust
    account sufficient to cover the amounts recorded as
    being held in trust for multiple clients, and by
    withdrawing cash, electronically transferring funds to
    his business account, and disbursing funds without
    sufficient amounts in trust for the related matters,
    Attorney Constant violated SCR 20:1.15(b)(1).4

    Count Five: By depositing $15,000 of his personal funds
    into the trust account on April 22, 2014, Attorney
    Constant violated former SCR 20:1.15(b)(3).5



    otherwise permitted by law or by agreement with the
    client, the lawyer shall promptly deliver to the client
    or 3rd party any funds or other property that the client
    or 3rd party is entitled to receive.

         (2) Upon final distribution of any trust property
    or upon request by the client or a 3rd party having an
    ownership interest in the property, the lawyer shall
    promptly render a full written accounting regarding the
    property.
    3  SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud, deceit
or misrepresentation."
    4   SCR 20:1.15(b)(1) provides:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and 3rd
    parties that is in the lawyer's possession in connection
    with a representation.    All funds of clients and 3rd
    parties paid to a lawyer or law firm in connection with
    a representation shall be deposited in one or more
    identifiable trust accounts.
    5  Former SCR 20:1.15(b)(3) provided: "No funds belonging to
the lawyer or law firm, except funds reasonably sufficient to pay
monthly account service charges may be deposited or retained in a
trust account."

                                 8
                                                     No.   2017AP666-D


    Count Six:   By making 13 withdrawals totaling $11,730
    from his trust account for cash during October and
    November, 2014, Attorney Constant violated former
    SCR 20:1.15(e)(4)a.6

    Count Seven:     By making several non-wire, direct,
    electronic transfers of funds from his trust account to
    his business account between July 1, 2013 and December
    2014,     Attorney     Constant     violated     former
    SCR 20:1.15(e)(4).7

    6  Former SCR 20:1.15(e)(4)a. provided: "No disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"
    7   Former SCR 20:1.15(e)(4) provided:

           Prohibited transactions.

           a. No disbursement of cash shall be made from a
              trust account or from a deposit to a trust
              account, and no check shall be made payable to
              'Cash.'

           b. No disbursement deposits or disbursement shall
              be made to or from a pooled trust account by a
              telephone transfer of funds. This section does
              not prohibit any of the following:

           1. wire transfers.

           2. telephone transfers between non-pooled draft and
              non-pooled non-draft trust accounts that a
              lawyer maintains for a particular client.

           c. A lawyer shall not make deposits to or
              disbursements from a trust account by way of an
              Internet transaction.

           d. A lawyer shall not authorize a 3rd party to
              electronically withdraw funds from a trust
              account.   A lawyer shall not authorize a 3rd
              party to deposit funds into the lawyer's trust
              account through a form of electronic deposit that
              allows the 3rd party making the deposit to
              withdraw the funds without the permission of the
              lawyer.

                                 9
                                               No.   2017AP666-D


Count Eight: By failing to maintain the requisite client
trust account records, such as a transaction register,
individual client ledgers, deposit records, disbursement
records, monthly statements and reconciliation reports,
Attorney Constant violated former SCR 20:1.15(f)(1).8

Count Nine: By falsely stating in a letter to the OLR
dated February 15, 2015 that he did not withdraw cash




8   Former SCR 20:1.15(f)(1) provided:

     Complete records of a trust account that is a draft
account shall include a transaction register; individual
client ledgers for IOLTA accounts and other pooled trust
accounts; a ledger for account fees and charges, if law
firm funds are held in the account pursuant to sub.
(b)(3); deposit records; disbursement records; monthly
statements; and reconciliation reports, subject to all
of the following:

     a. The transaction register shall contain a
chronological record of all account transactions, and
shall include all of the following:

       1. the date, source, and amount of all deposits;

     2. the date, check or transaction number, payee and
amount of all disbursements, whether by check, wire
transfer, or other means;

     3. the date and amount of every other deposit or
deduction of whatever nature;

     4. the identity of the client for whom funds were
deposited or disbursed; and

5. the balance in the account after each transaction.

                            10
                                                                   No.    2017AP666-D


      from his trust account, Attorney                  Constant    violated
      SCR 22.03(6);9 via SCR 20:8.4(h).10
      ¶25    Attorney     Constant     filed    an    answer     and     affirmative

defenses on May 26, 2017.            The referee was appointed on June 5,

2017.      During the course of the proceeding, the OLR voluntarily

dismissed Count Nine of its complaint.               An evidentiary hearing was

held on November 5, 2018.              The witnesses at the hearing were

Attorney      Constant,     M.B.,      M.B.'s     boyfriend,       and      an     OLR

investigator.

      ¶26    The referee issued his report and recommendation on

February 19, 2019.        The referee found that the OLR had proved by

clear,      satisfactory,    and     convincing       evidence     that     Attorney

Constant     committed    the   remaining       eight    counts    of     misconduct

alleged in the OLR's complaint.              Although the OLR had sought a

two-year suspension of Attorney Constant's Wisconsin law license,

the   referee    concluded      that    a    five-month    suspension        was   an

appropriate sanction for Attorney Constant's misconduct.

      ¶27    The referee said that the misconduct at issue here is

serious.      He noted the violations of trust account rules were
multiple and occurred over a number of years.               The referee pointed


      9SCR 22.03(6) provides: "In 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."

       SCR 20:8.4(h) provides: "It is professional misconduct for
      10

a lawyer to fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by SCR
21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1)."

                                        11
                                                            No.     2017AP666-D



out that Attorney Constant's area of practice was in the field of

personal injury law, and he said Attorney Constant's failure to

provide written notices to M.B. regarding the receipt of settlement

funds and then not providing an accurate settlement statement at

the conclusion of the case were major violations of the duties

owed to his client.

     ¶28    The referee also said Attorney Constant's practice of

electronic transfers and multiple cash withdrawals that were not

allocated to a specific client appear to be part of an effort to

convert funds from the client and to conceal Attorney Constant's

wrongdoing by intentionally violating supreme court rules.                 The

referee said the deposit of Attorney Constant's own funds into his

trust account to avoid an overdraft grossly represented a knowing

and intentional rule violation. Further, the referee said Attorney

Constant took no action to reconcile the differences between his

trust account bank records and his own business records.                   The

referee    noted   that   in   M.B.'s    case,   these   failures    occurred

repeatedly over more than two years.             The referee said Attorney
Constant's actions and non-actions were consistent with not caring

about the problems in his trust account or not wanting to take

actions to correct those problems.

     ¶29    The referee went on to say Attorney Constant has avoided

responsibility for his actions throughout the OLR's investigation.

The referee said Attorney Constant consistently blamed others

without any corroboration.        Attorney Constant blamed the Quicken

software program he used; he blamed unnamed employees at U.S. Bank
who he claimed gave him incorrect instructions on how to operate
                                        12
                                                             No.    2017AP666-D



his trust account; he claimed his own trust account and business

bank records should not have been admitted into evidence; and he

excused    his   misconduct   by   noting   that   neither   M.B.    nor   the

lienholders in her case suffered any loss.          The referee said this

type of rationalization indicated a lack of insight into the

misconduct and showed that Attorney Constant had no remorse for

his improper actions. The referee said it was critically important

that the seriousness of his wrongdoing be impressed upon Attorney

Constant.

     ¶30    The referee also found a number of mitigating factors.

The referee noted that Attorney Constant has practiced law in

Wisconsin for over 50 years and has not previously been the subject

of any disciplinary action.        The referee also said that Attorney

Constant has brought credit to the legal profession by his many

positive community involvements in the city and county of Kenosha.

In addition, for over ten years Attorney Constant provided pro

bono legal services through Legal Action of Wisconsin.                 In the

1980s Attorney Constant was a charter member of Kenoshans Against
Sexual Assault, and he also served on the Board of Directors for

the Salvation Army for many years.

     ¶31    The referee said Attorney Constant brought forward a

basketball analogy of "no harm/no foul" to support his position

that M.B. and all of the lienholders in her case did ultimately

receive all of the money that was due them.         The referee said this

attitude was consistent with Attorney Constant's assertion that he

did nothing that constituted a violation of supreme court rules.


                                     13
                                                                   No.   2017AP666-D



      ¶32     The    referee    ultimately     concluded    that    a    five-month

suspension of Attorney Constant's Wisconsin law license was an

appropriate sanction for his misconduct.                   In support of his

recommendation, the referee cited In re Disciplinary Proceedings

Against McClure, 2015 WI 25, 361 Wis. 2d 339, 860 N.W.2d 474.

Attorney McClure stipulated to 11 counts of misconduct involving

trust account violations, and various other counts of misconduct.

The referee in that case found Attorney McClure to be generally

remorseful.         Attorney McClure fully cooperated with the OLR, and

the OLR did not dispute the fact that Attorney McClure was faced

with a multitude of personal problems during the time period at

issue.

      ¶33     In addition to a five-month suspension, the referee in

the instant case also recommends that Attorney Constant should be

ordered to attend and successfully complete 12 hours of continuing

legal education (CLE) courses approved in advance by the OLR; at

least six hours of which should be in OLR approved courses relating

to   proper    trust       account    management.     Further,       the   referee
recommends that if Attorney Constant desires to resume the practice

of law, he should have his trust account monitored by the OLR for

at least two years.            The referee also recommends that Attorney

Constant be ordered to pay the full costs of the proceeding.

      ¶34     In his appeal, Attorney Constant argues that the OLR

mistakenly allowed his U.S. Bank records into evidence at the

evidentiary hearing because the certification by a U.S. Bank

officer was supported by an insufficient affidavit.                        He also
asserts     that     the    bank     records   received    into    evidence    were
                                          14
                                                                No.     2017AP666-D



insufficient to meet the OLR's burden of proof.                       Finally, he

asserts that a five-month suspension of his license to practice

law is excessive.       He argues that a public reprimand, or at most,

a 60-day suspension, would be an appropriate sanction.

     ¶35    Attorney Constant maintains that he returned M.B.'s

entire file to her, whereas M.B. and her boyfriend both testified

that she did not receive her complete file.            The referee found the

testimony of M.B. and her boyfriend to be more credible than

Attorney Constant's testimony on this issue.                 Attorney Constant

argued that his testimony should have been believed.                  He says the

record contained a statement that M.B. had a criminal record, and

he argues the referee should have made a specific finding of fact

on that point.

     ¶36    As to the appropriate sanction, Attorney Constant agrees

that the referee engaged in a detailed thoughtful analysis of the

mitigating factors; however, he says even a five-month suspension

is too much and a public reprimand or a sixty-day suspension is

adequate.
     ¶37    The   OLR    responds    to   Attorney    Constant's       appeal   by

arguing that the referee correctly admitted the certified U.S.

Bank records into evidence.         The OLR notes Wisconsin allows self-

authenticating documents to be admitted into evidence based on

circumstances,     and    pursuant    to    Wis.     Stat.    § 909.02(12)(a),

"extrinsic evidence of authenticity as a condition precedent to

admissibility is not required" for certified domestic records of

regularly conducted activity.             The referee notes that at the


                                      15
                                                                No.     2017AP666-D



evidentiary        hearing,    the   U.S.    Bank   certified    records         were

accompanied by an affidavit that included the following language:

      The documents delivered with this Affidavit in response
      to the Subpoena represent true and correct copies of
      documents which are in our files. These records were
      prepared in the ordinary course of business at or near
      the time of the act, condition or event.
      ¶38   The OLR says Wis. Stat. § 909.02(12) does not require

the person certifying the record to state the source of their

knowledge.     The OLR says the U.S. Bank certification met the
statutory requirements, and the referee properly admitted the bank

documents into the record.

      ¶39   The OLR says this court should affirm the referee's

finding that Attorney Constant did not give M.B. her entire client

file.    The OLR notes when testimony is conflicting, the referee is

the     ultimate     arbiter    of   witness   credibility.           See   In     re

Disciplinary Proceedings Against Pump, 120 Wis. 2d 422, 426-27,

355 N.W.2d 248 (1984).

      ¶40   In its cross-appeal, the OLR argues that a five-month

suspension is inadequate due to the nature and severity of Attorney

Constant's misconduct.          The OLR advocates for a suspension of a

least one year.

      ¶41   The OLR argues that Attorney Constant's trust account

violations were systemic and intentional.             It also says Attorney

Constant's inability to identify whose funds he used for expenses

and disbursement from his trust account demonstrates that the true

extent of the trust account misconduct is unknown.              The OLR argues
that in addition to a suspension of at least one year, this court


                                        16
                                                              No.    2017AP666-D



should follow the referee's recommendation that Attorney Constant

have his trust account monitored for two years after reinstatement.

      ¶42   A referee's findings of fact are affirmed unless 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.

      ¶43   From our review of the record, we find there has been no

showing that any of the referee's findings of fact are clearly

erroneous.    Accordingly, we adopt them.        We further agree with the

referee's conclusions of law that Attorney Constant violated the

supreme court rules set forth above.             We specifically find that

Attorney Constant's challenge to the admissibility of his U.S.

Bank records is meritless, and we find no basis to disturb the

referee's credibility finding with respect to whether Attorney

Constant returned M.B.'s entire client file.
      ¶44   Turning   to    the    appropriate   level   of   discipline,    we

conclude that a six-month suspension of Attorney Constant's law

license, which will require him to file a formal petition for

reinstatement, is appropriate.

      ¶45   Although no two disciplinary proceedings are identical,

we agree with the referee that this case is somewhat similar to

McClure.    However, whereas Attorney McClure fully cooperated with

the   OLR   and   entered   into    a   stipulation   whereby   he    admitted
virtually all of the facts alleged in the complaint, Attorney
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Constant provided the OLR with incomplete and inconsistent trust

account and client records, and he represented that he had not

made cash withdrawals from his trust account when in fact he had

done so.     In addition, unlike Attorney McClure, who the referee

found to be genuinely remorseful and was dealing with a variety of

personal   problems     during      the    time    the     misconduct     occurred,

Attorney Constant has consistently maintained that he did nothing

wrong.     Imposing     a    six-month     suspension,      which     will   require

Attorney Constant to petition for reinstatement, will provide

assurance that he can be safely recommended to the profession, the

courts, and the public as a person who is fit and capable to

practice law in this state.

     ¶46   We also agree with the referee that in the event Attorney

Constant's    license       is   reinstated,      he    should   be   required    to

successfully complete 12 hours of CLE courses approved in advance

by the OLR, at least six of which should relate to properly

managing a trust account and he should have his trust account

monitored by the OLR for at least two years.                     As is our usual
custom, we find it appropriate to assess the full costs of this

proceeding against Attorney Constant.                  Since the OLR states that

Attorney Constant made full restitution to M.B., we do not impose

a restitution award.

     ¶47   IT IS ORDERED that the license of Terry L. Constant to

practice law in Wisconsin is suspended for a period of six months,

effective March 10, 2020.

     ¶48   IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, Terry
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L. Constant shall be required to successfully complete 12 hours of

continuing legal education courses approved in advance by the

Office of Lawyer Regulation, at least six of which hours shall be

in courses relating to properly managing a trust account.

     ¶49   IT IS FURTHER ORDERED that, as a condition of the

reinstatement of his license to practice law in Wisconsin, Terry

L. Constant shall have his trust account monitored by the Office

of Lawyer Regulation for a period of two years.

     ¶50   IT IS FURTHER ORDERED that Terry L. Constant 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.

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

this order, Terry L. Constant shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $13,409.63 as

of December 10, 2019.

     ¶52   IT   IS   FURTHER   ORDERED   that   compliance   with   all

conditions of this order is required for reinstatement.             See

SCR 22.29(4).




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       ¶53    BRIAN HAGEDORN, J. (dissenting).     I would adopt the

referee's recommendation of a five-month license suspension rather

than    the     six-month   suspension   imposed   by    the     majority.

Accordingly, I respectfully dissent.




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