                                                             2014 WI 108

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2013AP1733-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against John R. Dade, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        John R. Dade,
                                  Respondent.



                             DISCIPLINARY PROCEEDINGS AGAINST DADE

OPINION FILED:          August 21, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2014 WI 108
                                                               NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.   2013AP1733-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against John R. Dade, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
           Complainant,
                                                             AUG 21, 2014
      v.
                                                                Diane M. Fremgen
                                                             Clerk of Supreme Court
John R. Dade,

           Respondent.




      ATTORNEY      disciplinary    proceeding.      Attorney's          license

suspended.



      ¶1   PER CURIAM.       We review the recommendation of referee

Hannah C. Dugan that the license of Attorney John R. Dade to

practice law in Wisconsin be suspended for a period of 90 days

and that he be required, as a condition of the reinstatement of

his license, to complete six continuing legal education (CLE)

credits in law office management, to be approved in advance by

the   Office   of   Lawyer   Regulation   (OLR).         The     referee      also
                                                                         No.     2013AP1733-D



recommends that the full costs of                          the proceeding, which are

$5,420.73 as of May 7, 2014, be assessed against Attorney Dade.

       ¶2    Based upon our independent review of the matter, we

adopt the referee's findings of fact and conclusions of law.                                   We

also    agree     with        the    referee's     recommendation         for       a    90-day

suspension        of    Attorney       Dade's      license      to     practice         law    in

Wisconsin.        We further agree with the referee's recommendations

regarding CLE credits and assessment of costs.

       ¶3    Attorney          Dade     was     admitted       to    practice           law     in

Wisconsin    in        1983    and    practices       in    Whitewater.        In       1991   he

received a private reprimand for failing to communicate, failing

to act with reasonable diligence, and failing to cooperate with

the    investigation           of     the     Board    of     Attorneys        Professional

Responsibility, the predecessor to the OLR.

       ¶4    In 2007 Attorney Dade received a public reprimand for

failure to provide competent representation, lack of diligence,

and failure to communicate.                   In 2007 Attorney Dade's license to

practice law was suspended for 60 days for lack of diligence,
failure to hold in trust the property of others in his client

trust account, and failure to cooperate in an OLR investigation.

In     re   Disciplinary             Proceedings       Against       Dade,      2007 WI 66,

301 Wis. 2d 67, 732 N.W.2d 433.

       ¶5    In    2012       Attorney      Dade   was      publicly    reprimanded            for

lack of diligence, failure to communicate, failure to cooperate

in the OLR's investigation, and failure to return a client's

documents.        In 2013 Attorney Dade's license to practice law in
Wisconsin was suspended for 60 days for lack of diligence, lack
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of communication, and failure to obey a court order.                                  In re

Disciplinary            Proceedings      Against          Dade,         2013     WI      21,

345 Wis. 2d 646, 827 N.W.2d 86.

      ¶6    On August 6, 2013, the OLR filed a complaint alleging

two     counts     of     misconduct     with      respect      to      Attorney      Dade's

representation of R.K., a defendant in a real estate dispute.                             A

trial in said dispute was held in Walworth County circuit court

in late September 2006.             Attorney Dade failed to file a brief by

November     28,     2006,     as    required      by     the        court's    post-trial

briefing schedule.             In a December 11, 2006 order, the circuit

court    informed        the   parties      that    the    court        would    make    its

decision based on the evidence                   at trial and the plaintiffs'

brief.

      ¶7    In a decision issued on January 29, 2007, the circuit

court found that the plaintiffs had met their burden of proof

and were entitled to ownership by adverse possession of the

piece of land at issue.             Attorney Dade filed a notice of appeal

on behalf of R.K.           In a May 31, 2007 order, the court of appeals
found that Attorney Dade had not filed a docketing statement and

informed him that unless it was filed within five days, the

appeal     would     be    subject     to    dismissal          or     other    sanctions.

Attorney Dade did not promptly file a docketing statement.

      ¶8    In a June 27, 2007 order, the court of appeals noted

the docketing statement had still not been filed and indicated

that if the original and one copy of the statement was not filed

on or before July 9, 2007, a penalty of $25 per day would be
imposed on Attorney Dade as counsel for the appellant until such
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time as the docketing statement was filed.                Attorney Dade failed

to file the docketing statement by July 9, 2007.

      ¶9         On July 11, 2007, Attorney Dade filed a stipulation

signed      by    R.K.     substituting   Attorney   C.   Bennett      Penwell   as

attorney of record for R.K.               Attorney Penwell was in the same

law firm as Attorney Dade.

      ¶10        This court suspended Attorney Dade's law license for

60 days, effective July 13, 2007.

      ¶11        In an August 7, 2007 order, the court of appeals again

noted the history of Attorney Dade's failure to file a docketing

statement.         The penalty that had accrued at that point was more

than $700.          The court of appeals again extended the time for

filing a docketing statement to August 17, 2007, conditioned

upon the simultaneous payment by Attorney Dade of a $50 penalty.

The court of appeals informed Attorney Dade that if the original

and   one    copy     of    the   docketing   statement   were    not    filed   by

August 17, 2007, Attorney Dade would be required to personally

pay the $700 penalty, and a penalty of $25 per day would begin
running as to Attorney Penwell personally as well.                        Attorney

Penwell filed the docketing statement on August 16, 2007.                        On

July 30, 2008, the court of appeals affirmed the circuit court's

judgment.

      ¶12        R.K. filed a grievance against Attorney Dade with the

OLR on February 1, 2012.              Despite being provided with written

notice of the investigation and being personally served with

letters from the OLR reminding him of his duty to cooperate and
informing him that he was required to file a written response to
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the grievance, Attorney Dade failed to respond until late August

2012.

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

misconduct with respect to Attorney Dade's handling of R.K.'s

case:

         [Count One]     By failing to file a docketing
    statement in [R.K.'s] appeal, even after receiving
    orders from the Wisconsin Court of Appeals dated
    May 31, 2007, and June 27, 2007, ordering him to do
    so, Dade violated SCR 20:1.31 and 20:3.4(c).2

         [Count Two]     By failing to provide a written
    response to the grievance, which was due by June 25,
    2012, until providing OLR with [R.K.'s] case file on
    August 8, 2012 and a written response on August 31,
    2012, and only after receiving a letter by ordinary
    mail, a letter by certified and ordinary mail, and
    being personally served, Dade violated SCR 22.03(2)
    and (6)3 as enforced via 20:8.4(h).4

    1
       Supreme Court Rule (SCR) 20:1.3 provides that "[a] lawyer
shall   act   with  reasonable   diligence  and   promptness  in
representing a client."
    2
       SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
    3
        SCR 22.03(2) and (6) provide:

         (2) Upon    commencing  an   investigation,    the
    director shall notify the respondent of the matter
    being investigated unless in the opinion of the
    director the investigation of the matter requires
    otherwise.   The respondent shall fully and fairly
    disclose all facts and circumstances pertaining to the
    alleged misconduct within 20 days after being served
    by ordinary mail a request for a written response.
    The director may allow additional time to respond.
    Following receipt of the response, the director may
    conduct further investigation and may compel the
                                                     (continued)
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                                                                          No.     2013AP1733-D



      ¶14    Attorney Dade did not file a timely answer to the

complaint.        The OLR filed a notice of motion and motion for

default     judgment.                The     referee      scheduled         the      initial

teleconference between the parties to be a hearing on the OLR's

default judgment motion.                The telephonic hearing was scheduled

for   October 17,         2013.         Attorney       Dade   filed       an     answer      on

October 17,       2013,      admitting       the   allegations     in      the     complaint

with the exception of the claimed violation of SCR 20:3.4(c).

The parties appeared via telephone for the hearing on the motion

for   default      judgment.           The   parties      agreed     to    proceed      to   a

hearing     on    the     sole       issue   of    the    appropriate           disciplinary

sanction.        The sanctions hearing was held on December 5, 2013.

At    the   close       of     the     hearing,     the     parties       requested       the

opportunity       to    file     written     briefs      regarding    the        appropriate

sanction.        The OLR filed its brief.                Attorney Dade did not file


      respondent to answer questions, furnish documents, and
      present any information deemed relevant to the
      investigation.

             . . . .

           (6) 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.
      4
       SCR 20:8.4(h) provides that it is professional misconduct
for 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)."


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                                                                       No.    2013AP1733-D



a   response       brief.         The        referee      issued    her      report     and

recommendation on March 27, 2014.

     ¶15    The referee concluded that the OLR failed to meet its

burden     of    proof       establishing          that    Attorney    Dade        violated

SCR 20:3.4(c).          The referee noted that the court of appeals'

orders mentioned in the complaint were not made part of the

record.      As a result, the referee said it was difficult to

determine whether Attorney Dade's failure to timely submit the

docketing       statement        was     a     violation       of     the     successive

communications from the court of appeals that rises to the level

of a SCR 20:3.4(c) violation.                 The referee said that a review of

prior case law involving SCR 20:3.4(c) violations reveals cases

involving       clear    court    orders       and     deliberate,     egregious,       and

sometimes       even    arrogant,       violations        of   SCR 20:3.4(c).           The

referee concluded that, although failing to file the docketing

statement was not acceptable practice, and while Attorney Dade

acknowledged that his failure to file the docketing statement

was a violation of the lack of diligence rule, the OLR failed to
carry its burden of proof that Attorney Dade knowingly disobeyed

an obligation under the rules of a tribunal.

     ¶16    The referee concluded that the OLR did meet its burden

of proof with respect to the other allegations in the OLR's

complaint.

     ¶17    With respect to the appropriate sanction, the referee

noted that the OLR sought a five-month suspension of Attorney

Dade's    license       to   practice        law     in   Wisconsin.         The    referee
concluded that a 90-day suspension was appropriate.                          The referee
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                                                                           No.     2013AP1733-D



agreed with the OLR that Attorney Dade's disciplinary history

demonstrates a troubling pattern of lack of diligence, failure

to    obey   court    orders,          and     failure         to     cooperate       in    OLR

investigations.           On   the     other      hand,       the    referee     pointed     to

Attorney Dade's willingness to acknowledge the wrongful nature

of his conduct.           The referee also noted that the underlying

facts in this case occurred in 2007 and the grievance was not

filed until five years later.                  The referee pointed out that in

the ensuing five years, this court disciplined Attorney Dade

with two public reprimands and two 60-day license suspensions.

The referee said this unusual disciplinary pattern complicated

the   recommendation       with      respect       to    this       court's      standard    of

progressive discipline.

       ¶18   The referee also said that the OLR did not establish

that Attorney Dade's violations of supreme court rules "harmed"

his client in a specific, tangible way.                         The referee said that

Attorney Dade's conduct requires a sanction that clearly signals

to    Attorney   Dade      and    to    the       practicing         bar    that     repeated
failures to respond to the OLR are unacceptable breaches of

professional ethics.             On balance, the referee concluded that a

90-day suspension was an appropriate sanction.                            The referee also

recommends,      as   a    requirement            of    the     reinstatement         of    his

license, that Attorney Dade be required to complete six CLE

credits in law office management, to be approved by the OLR, and

that he be assessed the full costs of this proceeding.

       ¶19   A   referee's       findings         of    fact        are   affirmed     unless
clearly erroneous.             Conclusions of law are reviewed de novo.
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                                                                        No.    2013AP1733-D



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.

      ¶20    There is no showing that any of the referee's findings

of fact are erroneous.           Accordingly, we adopt them.                      We also

agree with the referee's conclusions of law that Attorney Dade

violated the supreme court rules set forth above.

      ¶21    Given the referee's factual findings, we further agree

with the referee that Attorney Dade's professional misconduct

requires     that   his   license     to        practice       law    in     Wisconsin    be

suspended     for   a   period   of   90        days.        Attorney      Dade   has    not

objected to the statement of costs filed by the OLR, and we

conclude that he should be required to pay the full amount of

costs in this disciplinary proceeding.                       Finally, we agree with

the   referee's     recommendation          that,       as     a     condition    of     the

reinstatement of his license to practice law, Attorney Dade be
required to complete six CLE credits in law office management,

to be approved by the OLR.

      ¶22    IT IS ORDERED that the license of Attorney John R.

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

90 days, effective September 25, 2014.

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

reinstatement of his license to practice law, John R. Dade shall

be required to complete six continuing legal education credits


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in law office management, to be approved by the Office of Lawyer

Regulation.

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

of this order, John R. Dade shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

    ¶25    IT IS FURTHER ORDERED that John R. Dade 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.

    ¶26    IT    IS   FURTHER   ORDERED    that    compliance      with    all

conditions of this order is required for reinstatement.                    See

SCR 22.28(2).




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