                                                              2019 WI 13

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2015AP1370-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Patrick S. Sweeney, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Patrick S. Sweeney,
                                  Respondent-Appellant.

                            DISCIPLINARY PROCEEDINGS AGAINST SWEENEY

OPINION FILED:          February 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                            2019 WI 13
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.   2015AP1370-D


STATE OF WISCONSIN                             :               IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Patrick S. Sweeney, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
           Complainant-Respondent,
                                                                   FEB 19, 2019
      v.
                                                                      Sheila T. Reiff
                                                                   Clerk of Supreme Court
Patrick S. Sweeney,

           Respondent-Appellant.




      ATTORNEY      disciplinary       proceeding.          Attorney's         license
revoked.


      ¶1   PER     CURIAM.     We    review    the     recommendation          of    the
referee,   James    C.   Boll,      that   Attorney      Patrick      S.    Sweeney's
license    to    practice    law      should    be      revoked       due     to     his
professional     misconduct.         The   referee      also     recommended        that
Attorney Sweeney be ordered to pay restitution consistent with
the terms of an order imposed in a related criminal matter, and
pay the costs of this proceeding which are $10,338.75 as of
                                                                      No.   2015AP1370-D



August 17, 2018.         Attorney Sweeney opted not to pursue an appeal
of the referee's report and recommendation.1
     ¶2     We        adopt     the     referee's      findings       of      fact    and
conclusions of law and agree that the seriousness of Attorney
Sweeney's professional misconduct warrants the revocation of his
law license.          We further agree that he should pay restitution,
as recommended by the referee, and that he should pay the costs
of this proceeding.
     ¶3     Attorney          Sweeney   was       admitted    to    practice    law   in
Wisconsin in 1992.             He practiced in the Madison area.                 He has
not previously been subject to professional discipline but his
law license is presently administratively suspended for failing

to pay state bar dues and failing to certify his compliance with
trust account record keeping requirements.
     ¶4     On    July    10,     2015,    the     Office     of   Lawyer   Regulation
(OLR)    filed    a    disciplinary        complaint     alleging      that    Attorney
Sweeney   committed       five     counts     of    professional      misconduct      and
seeking revocation of his law license.                       Attorney Sweeney filed

an answer and this court appointed Referee James C. Boll.
     ¶5     The       disciplinary        proceeding     was       adjourned    several
times.    On January 6, 2017, after Attorney Sweeney was indicted
on related criminal charges, the referee determined there was


     1 Attorney Sweeney initially filed a timely notice of appeal
of the referee's recommendation. However, on December 10, 2018,
Attorney Sweeney advised the court that he would not pursue his
appeal.    Accordingly, the court considers this matter as a
review of the referee's report under SCR 22.17(2).


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cause    to defer the matter pending              resolution     of the    related
federal criminal prosecution.              See United States v. Sweeney,

No. 16-CR-103 (W.D. Wis. 2017); SCR 22.41.
     ¶6     The federal indictment alleged that from March 2007
until March 2011, Attorney Sweeney devised a scheme to defraud
three limited liability companies in which he held a member's
ownership interest.         Attorney Sweeney approached the co-members
of the companies and proposed that the companies loan $105,000
to $115,000 to a friend of Attorney Sweeney.                       The loan was
purportedly secured by a home mortgage.                 Attorney Sweeney did
not loan the money to his friend, but instead converted the
funds to his own use.

     ¶7     The    indictment    alleged     that    Attorney      Sweeney     drew
checks     totaling    approximately       $420,000     on       the    companies'
checking accounts.         When asked for the original promissory note,
Attorney Sweeney provided a false document bearing the forged
signature of his friend.          The indictment also alleged that on
February    14,    2013,    Sweeney   made    a     false    declaration      in    a
bankruptcy matter when he submitted a sworn "List of Creditors"
that falsely listed the embezzled funds as "loans to debtor" in
an effort to obtain a discharge in bankruptcy of his obligation
to repay the funds he had embezzled.                 Finally, the indictment
alleged that in March 2011, Attorney Sweeney committed identify
theft during and in relation to the alleged scheme to defraud.
     ¶8     Attorney Sweeney ultimately entered a guilty plea to
Count Two, the bankruptcy charge.                 On November 17, 2017, the
federal    court    sentenced    Attorney     Sweeney       to   five    years     of
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probation, with the first year on home confinement, and ordered
him    to    pay restitution            of   $481,970.             See Sweeney,       16-CR-103

(W.D. Wis. 2017).
       ¶9      Shortly         after    Attorney        Sweeney's        federal     sentencing
hearing,       Referee         Boll    scheduled        a    status      conference       in   this
disciplinary            proceeding.          On    January         22,   2018,      the    parties
advised       the       referee       that    Attorney            Sweeney    had     agreed      to
stipulate to the underlying counts of the disciplinary complaint
and that both parties would submit briefs on the question of the
appropriate sanction.
       ¶10     On       January        31,    2018,          the     parties        executed      a
stipulation in which Attorney Sweeney withdrew his answer and

pled no contest to each of the five allegations of misconduct
alleged in the OLR's disciplinary complaint.                              The parties agreed
that    the        disciplinary        complaint,           the    record    in     the    federal
criminal prosecution, and the terms of the stipulation could
serve as the factual basis for the referee's factual findings
and determination of misconduct.
       ¶11     In the stipulation, Attorney Sweeney stated that he
understood the misconduct allegations, his rights to contest the
misconduct allegations and the factual basis for them, that his
entry       into    this    stipulation           was   made       knowingly,       voluntarily,
without coercion, and without the benefit of any negotiations
for a reduction in either charges or sanctions in this matter.

He stipulated that his entry into the stipulation represents his
admission          to    all    of     the   misconduct            charged     in    the       OLR's
complaint.
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                                                                               No.    2015AP1370-D



     ¶12    Both        parties     filed        briefs        on        the     question           of
sanctions.        The    OLR     maintains       that    revocation             is    warranted.
Attorney    Sweeney      requested     a    one-year       suspension                of     his   law
license.
     ¶13    On July 30, 2018, Referee Boll filed a report, stating
that based on the record he found by clear, satisfactory, and
convincing evidence, that Attorney Sweeney violated the rules of
professional conduct as alleged.                  We summarize that professional
misconduct here.
     ¶14    First,       the    parties     stipulated          that        on       December      9,
2013,    while    his     law    license     was       administratively                suspended,
Attorney Sweeney filed an answer on behalf of a defendant in a

pending    civil      proceeding.           See        Board        of     Regents          of    the

University       v.   The      Consciousness       Project,          Inc.,           Dane       County
Circuit Court, No. 2013CV3383.                   The referee concluded that by
appearing on behalf of the defendant and thereafter filing an
answer,    affirmative          defense,    and        counterclaims             in       the     case
during the period of time his license was suspended, Attorney
Sweeney    violated       SCR 10.03(6)2          and    former           SCR 20:1.15(i)(4),3
enforced via SCR 20:8.4(f)4 (Count One).

     2   SCR 10.03(6) provides:

          Penalty for nonpayment of dues.    If the annual
     dues or assessments of any member remain unpaid 120
     days after the payment is due, the membership of the
     member may be suspended in the manner provided in the
     bylaws; and no person whose membership is so suspended
     for nonpayment of dues or assessments may practice law
     during the period of the suspension.


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                                                                No.   2015AP1370-D



       ¶15    Next, the parties stipulated and the referee concluded
that   by    drafting a Promissory           Note to   the Fairview Entities
while he served as its managing member and had in the past
represented the Fairview Entities, and thereafter by signing his
friend's       name     to   the   Promissory      Note,    then      personally
guaranteeing      and    signing   the   Promissory      Note    as   guarantor,
Attorney Sweeney violated SCR 20:1.7(a)(2)5 (Count Two).



       3
       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(i)(4) provided:

            The failure of a state bar member to file the
       certificate is grounds for automatic suspension of the
       member's membership in the state bar in the same
       manner provided in SCR 10.03(6) for non payment of
       dues.     The filing of a false certificate is
       unprofessional conduct and is grounds for disciplinary
       action.
       4
       SCR 20:8.4(f) provides:  "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
       5   SCR 20:1.7(a)(2) provides:

            Except as provided in par. (b), a lawyer shall
       not represent a client if the representation involves
       a concurrent conflict of interest.       A concurrent
       conflict of interest exists if there is a significant
       risk that the representation of one or more clients
       will   be   materially   limited   by   the   lawyer's
       responsibilities to another client, a former client or
                                                       (continued)
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                                                                   No.     2015AP1370-D



       ¶16    The parties stipulated and the referee concluded that
by misappropriating funds of the Fairview Entities for his own
personal use, Attorney Sweeney violated SCR 20:8.4(c)6 (Count
Three).
       ¶17    The parties stipulated and the referee concluded that
by representing to other members of the Fairview Entities, while
he served as its managing member, that the Fairview Entities had
provided loans to his friend when in fact, the loan funds were
dispersed to him for his own personal use without the knowledge
or authorization of the other members, Attorney Sweeney again
violated SCR 20:8.4(c) (Count Four).
       ¶18    Finally,   the      parties         stipulated   and       the   referee

concluded that by failing to pay filing fees in the bankruptcy
case, even after receiving orders from the U.S. Bankruptcy Court
Clerk      ordering   him    to    do       so,     Attorney   Sweeney         violated
SCR 20:3.4(c)7 (Count Five).
        ¶19   After making a determination of misconduct as to all
five       counts   summarized     above,         the   referee      evaluated       the

appropriate discipline for Attorney Sweeney.                      Attorney Sweeney



       a third      person   or   by    a       personal   interest      of    the
       lawyer.
       6
       SCR 20:8.4(c) provides: "It is professional misconduct for
a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
       7
       SCR 20:3.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


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                                                                            No.        2015AP1370-D



had argued that a one-year suspension of his law license would
suffice, asserting that he was not dishonest and did not have
selfish      motives.         He     urged      the    referee      to    consider        several
mitigating factors.                 The    referee     agreed that         the     absence      of
previous      discipline       was        one    mitigating      factor,        but      rejected
Attorney      Sweeney's        request          that   the    referee       consider         other
mitigating factors.             As the referee observed, Attorney Sweeney
sought to introduce facts beyond the scope of the agreed upon
record, and also failed to explain how these factors relate to
his admitted misconduct.
       ¶20    The referee rejected Attorney Sweeney's argument that
a    one-year      suspension        was     adequate.         He    was    not        swayed   by

Attorney      Sweeney's        apparent         perception       that      he     was     treated
harshly by the federal court, and observed that Attorney Sweeney
provided no Wisconsin case law to support his proposal.
       ¶21    The      referee        determined          that      Attorney            Sweeney's
misconduct       was     of     a     very       serious      nature       that         warranted
revocation.            Indeed,       the        referee      concluded         that      Attorney

Sweeney's       conduct       was    even       more   egregious         than     the     conduct
described in the cases offered by the OLR in support of its
request      for     revocation.                See,    e.g.,       In    re      Disciplinary
Proceeding Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999)
(suspending lawyer for two years for converting $11,000 from a
sale of a client's house to pay her own personal expenses); In
re   Disciplinary       Proceeding           Against      Carter,        2014     WI    126,    359
Wis. 2d 70, 856 N.W.2d 595 (suspending lawyer for three years
for converting approximately $72,000 of client's funds held in
                                                  8
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trust     and     attempting     to     conceal      the       conversion);        In    re

Disciplinary       Proceeding     Against         Krombach,     2005     WI     170,     286
Wis. 2d 589,        707    N.W.2d 146     (revoking        lawyer's          license    for
engaging in a series of conversions of a client's trust funds
and   for       making    misleading    representations          and     providing       an
inaccurate        accounting     to    the       OLR).     The        referee     further
recommends that we order Attorney Sweeney to comply with the
restitution order imposed against him in the federal criminal
case,     and    order     Attorney    Sweeney      to   pay    the    costs     of     this
proceeding.
      ¶22       The OLR did not appeal from the referee report, and,
as mentioned earlier, Attorney Sweeney opted not to pursue an

appeal.      Accordingly, this court's review proceeds pursuant to
SCR 22.17(2).8            In conducting our review, we will affirm the
referee's findings of fact unless they are found to be clearly
erroneous, and we will review the referee's conclusions of law
on a de novo basis.           See In re Disciplinary Proceedings Against
Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125.                                We
may   impose      whatever     sanction      we    see   fit    regardless        of     the



      8   SCR 22.17(2) provides:

           If no appeal is filed timely, the supreme court
      shall review the referee's report; adopt, reject or
      modify the referee's findings and conclusions or
      remand the matter to the referee for additional
      findings;   and   determine  and   impose  appropriate
      discipline.   The court, on its own motion, may order
      the parties to file briefs in the matter.


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referee's recommendation.              See In re Disciplinary Proceedings

Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
      ¶23     Based upon our review of the record, we accept the
referee's findings and conclusions of law in this matter and
agree    that    Attorney       Sweeney    committed          the    five    counts     of
professional      misconduct,      as     alleged.       We    determine         that   the
seriousness of Attorney Sweeney's misconduct demonstrates that
his law license must be revoked to protect the public, courts,
and   legal     system   from    the     repetition      of    the    misconduct;       to
impress upon Attorney Sweeney the seriousness of his misconduct;
and     to    deter   other      attorneys        from    engaging          in    similar
misconduct.      We further accept the referee's recommendation that

we order Attorney Sweeney to comply with the restitution order
imposed on him in the federal court in the amount of $481,970,
and we impose the full costs of this disciplinary proceeding on
Attorney Sweeney.
      ¶24     IT IS ORDERED that the license of Patrick S. Sweeney to
practice law in Wisconsin is revoked, effective the date of this
order.
      ¶25     IT IS FURTHER ORDERED that Patrick S. Sweeney shall
comply with the restitution order imposed on him in United States
v.    Sweeney,    16-CR-103      (W.D.     Wis.    2017),       in    the    amount      of
$481,970.
      ¶26     IT IS FURTHER ORDERED that within 60 days of the date
of this order Patrick S. Sweeney pay to the Office of Lawyer
Regulation the costs of this disciplinary proceeding, which are
$10,338.75 as of August 17, 2018.
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     ¶27   IT IS FURTHER ORDERED that Patrick S. Sweeney comply
with the provisions of SCR 22.26 concerning the duties         of   a
person whose license to practice law has been revoked.




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