                                                              2014 WI 43

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP484-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Andrew J. Bryant, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Andrew J. Bryant,
                                  Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST BRYANT

OPINION FILED:          June 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           ROGGENSACK, J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2014 WI 43
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.    2012AP484-D


STATE OF WISCONSIN                        :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Andrew J. Bryant, Attorney at Law:

Office of Lawyer Regulation,                                     FILED
           Complainant,
                                                            JUN 24, 2014
      v.
                                                               Diane M. Fremgen
                                                            Clerk of Supreme Court
Andrew J. Bryant,

           Respondent.




      ATTORNEY    disciplinary     proceeding.      Attorney's          license

suspended.



      ¶1   PER CURIAM.     We review the report and recommendation

of the referee, Attorney Lisa C. Goldman, which was based in

part upon the stipulation of the Office of Lawyer Regulation

(OLR) and Attorney Andrew J. Bryant.           As jointly requested by

the   parties,   the   referee   recommends    that     Attorney       Bryant's

license be suspended for a period of four months.               The referee,

however, adds to the parties' stipulation and recommends that
the court impose a number of conditions upon Attorney Bryant's
                                                                        No.    2012AP484-D



reinstatement to the practice of law and upon his practice of

law following his reinstatement.

      ¶2     After thoroughly reviewing the parties' stipulation,

the referee's recommendation, and the record in this matter, we

conclude    that    the     stipulated         facts    demonstrate     that     Attorney

Bryant committed all of the 15 counts of misconduct alleged in

the OLR's complaint.            We determine that the requested level of

discipline, a four-month suspension, is an appropriate level of

discipline     to     impose        for        Attorney      Bryant's        professional

misconduct.         While    we    agree       with    the   referee    that    Attorney

Bryant     should    be    required       to    pay    restitution      to    two    former

clients, we do not follow the referee's recommendation regarding

the   imposition      of    a     monitoring          program.    We     impose       other

conditions on Attorney Bryant's reinstatement that we believe

will adequately ensure Attorney Bryant's ability to practice law

and conform his conduct to the Rules of Professional Conduct for

Attorneys.

      Attorney Bryant's Practice and Disciplinary History
      ¶3     According to the referee's report, Attorney Bryant was

admitted to the practice of law in Wisconsin in 1992.                               He most

recently practiced as a solo attorney in Verona.

      ¶4     Attorney Bryant has received professional discipline

on one prior occasion.            In January 2012 Attorney Bryant received

a consensual private reprimand arising out of his representation

of    a    client    in     a     post-divorce          proceeding      regarding       the

modification of child support.                     Private Reprimand, No. 2012-01.
His misconduct in that matter included a lack of competence, a
                                               2
                                                                        No.    2012AP484-D



lack    of   diligence,          a   failure     to   consult        with     his    client

regarding       the      means       by    which      the     objectives            of   the

representation were to be pursued, and a failure to keep his

client adequately informed.

       ¶5    In    addition,         although    it   does    not     qualify       as   the

imposition of professional discipline, it should be noted that

in   2012    this       court    issued    two     separate     orders        temporarily

suspending Attorney Bryant's license due to his willful failure

to cooperate with OLR grievance investigations.                         Both of those

temporary suspensions have remained in effect up to the date of

this opinion.

       Allegations of the Complaint

       ¶6    The OLR's complaint in this matter alleged 15 separate

counts of misconduct arising out of three client representations

and the practice of law during a period of suspension.

       ¶7    The first count of the OLR's complaint alleged that

Attorney Bryant had failed to pay his bar dues and supreme court

assessments and to provide a signed trust account certification,
all of which were due on July 1, 2010.                       In September 2010 the

State Bar of Wisconsin sent Attorney Bryant a letter advising

him that if he did not pay his bar dues and assessments and

provide      his    trust       account    certification        by     5:00     p.m.      on

November 1, 2010, his license to practice law in this state

would be automatically suspended.                     Attorney Bryant failed to

comply with his obligations, and his law license was suspended

on   November      1,    2010.       On   November    4,     2010,    Attorney       Bryant
appeared at circuit court proceedings on behalf of clients in
                                            3
                                                                No.     2012AP484-D



two separate actions—one in Dane County circuit court and one in

Columbia County circuit court.             In addition, in the Columbia

County case Attorney Bryant also filed a motion and affidavit on

behalf   of   his   clients.        Attorney   Bryant's     law    license     was

subsequently   reinstated      on   November   9,   2010.         The   complaint

alleged that Attorney Bryant's practice of law while his license

was   administratively     suspended       constituted      a     violation     of




                                       4
                                                               No.     2012AP484-D



SCRs 10.03(6),1 20:1.15(i)(4),2 and 22.26(2),3 which are enforced

via SCR 20:8.4(f).4

     ¶8     Counts two through six of the complaint related to

Attorney    Bryant's     representation    of    V.F.   and   J.R.,    who   were

husband    and   wife.      In   September      2009    the   couple    retained


     1
         SCR 10.03(6) states:     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.
     2
         SCR 20:1.15(i)(4) states:        Suspension for non-compliance.

     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 nonpayment of
     dues.     The filing of a false certificate is
     unprofessional conduct and is grounds for disciplinary
     action.
     3
         SCR 22.26(2) provides as follows:

          An attorney whose license to practice law is
     suspended or revoked or who is suspended from the
     practice of law may not engage in this state in the
     practice of law or in any law work activity
     customarily done by law students, law clerks, or other
     paralegal personnel, except that the attorney may
     engage in law related work in this state for a
     commercial employer itself not engaged in the practice
     of law.
     4
       SCR 20:8.4(f) states 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
                                                                           No.        2012AP484-D



Attorney Bryant for the purpose of filing a joint petition for

divorce.        Attorney Bryant did not obtain a written conflict

waiver for the representation of both individuals.                           He told V.F.

that the entire representation could be completed for $1,500 so

V.F. gave Attorney Bryant a check for that amount.                                     Attorney

Bryant deposited the funds into his business account but did not

follow any of the requirements for the advanced fee alternative

procedure       in    SCR       20:1.15(b)(4m).            Although    Attorney          Bryant

expected       that       the    cost   of     the    representation        would        exceed

$1,000, he did not prepare a written fee agreement.

    ¶9         Shortly after his initial meeting with V.F. and J.R.,

Attorney Bryant prepared a joint petition for divorce, obtained

the signatures of both spouses, and filed the petition in the

Dane County circuit court.                     In November 2009 Attorney Bryant

spoke with V.F. about the need to obtain an expedited divorce

hearing    due       to    the     deteriorating       mental      competence          of    J.R.

Attorney       Bryant       promised      to    prepare      and    submit       a     proposed

Marital Settlement Agreement (MSA) to V.F. for his review.                                     In
January 2010 Attorney Bryant met with both V.F. and J.R. to

review their financial disclosure statements and to discuss the

proposed       MSA.        In     April   2010       Attorney      Bryant    received          an

executed    signature            page   for    the   MSA    from    V.F.         He    did    not

receive a signature page from J.R.

    ¶10        In May 2010 the circuit court issued a notice stating

that due to inactivity in the matter, it would place the divorce

action    on    the       June    25,   2010    docket      for    possible       dismissal.
Neither    Attorney         Bryant      nor    either      of   the   parties          appeared
                                                6
                                                                                  No.        2012AP484-D



before the circuit court on June 25, 2010, causing the court to

dismiss      the     action.        The       court      issued       a    written           order   of

dismissal in early July 2010.

       ¶11     Attorney       Bryant      did      not    notify      his       clients        of    the

dismissal.              Indeed,     V.F.      and        J.R.    did        not       receive        any

correspondence from Attorney Bryant from September 2009 through

September 2010.           Around that time V.F. learned from his daughter

that     the    divorce         action       had       been   dismissed.                On     several

occasions       he      asked     Attorney         Bryant       to   re-file          the      divorce

petition, but Attorney Bryant did not do so.                                 In December 2010

V.F.'s daughter sent multiple e-mails to Attorney Bryant again

asking    him      to    re-file       the    divorce         petition          and     to    seek    an

expedited       hearing.          Finally,         on    December         16,    2010,        Attorney

Bryant re-filed the divorce petition, although he did not ask

for an expedited hearing.

       ¶12     On February 1, 2011, V.F. terminated Attorney Bryant's

representation and retained Attorney Anthony Menting to proceed

with the divorce action.                     On that same date Attorney Menting
sent a draft stipulation and order for substitution of counsel

to   Attorney        Bryant      and     also      requested         that       Attorney        Bryant

provide a complete copy of his file on the matter.                                            Attorney

Bryant did not provide the file or otherwise respond to the

letter.        Attorney Menting sent another letter to Attorney Bryant

regarding these matters in mid-February.                                  On March 16, 2011,

Attorney Bryant forwarded the file to Attorney Menting.

       ¶13     On March 29, 2011, Attorney Bryant sent an invoice to
V.F.     The invoice sought $800 for Attorney Bryant's fees and
                                                   7
                                                          No.     2012AP484-D



$369 for disbursed costs.       Attorney Bryant offered to return the

remainder of the $1,500 advanced fee ($331) to V.F.             On June 24,

2011, Attorney Bryant sent a check to V.F. in the amount of $331

pursuant to his offer.      V.F. rejected the check.

    ¶14     The     complaint   alleged    that    Attorney     Bryant    had

committed    five     ethical   violations    in   connection     with    his

representation of V.F. and J.R.          By representing two individuals

in a joint divorce petition without obtaining a written waiver

of the conflict, Attorney Bryant violated SCR 20:1.7(a)5 (Count

Two).   By failing to utilize a written fee agreement when he had

agreed to represent V.F. and J.R. for a fee of $1,500, Attorney

Bryant violated SCR 20:1.5(b)(2)6 (Count Three).              By accepting

the $1,500 advanced fee and failing to deposit the advanced fee

into his trust account in the absence of any intent to utilize

    5
        SCR 20:1.7(a) states:

         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:

         (1) the representation of one client                 will   be
    directly adverse to another client; or

         (2) 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 a third person or
    by a personal interest of the lawyer.
    6
       SCR 20:1.5(b)(2) states that "[i]f the total cost of
representation to the client, including attorney's fees, is more
than $1000, the purpose and effect of any retainer or advance
fee that is paid to the lawyer shall be communicated in
writing."

                                     8
                                                                  No.   2012AP484-D



the alternative advanced fee procedure, Attorney Bryant violated

SCR 20:1.15(b)(4)7 (Count Four).               The complaint further alleged

that       Attorney   Bryant   had    demonstrated    a   lack    of    reasonable

diligence, in violation of SCR 20:1.3,8 by failing to advance the

interests of his clients for more than a year after the clients

informed him of their need to expedite the matter due to J.R.'s

failing health (Count Five).            Finally, Attorney Bryant's failure

to provide the clients' file to successor counsel in a timely

manner, despite requests to do so, constituted a violation of

SCR 20:1.16(d)9 (Count Six).

       ¶15     Counts seven through twelve of the complaint related

to Attorney Bryant's representation of client M.C.                        Attorney

       7
       SCR       20:1.15(b)(4)       states:      Unearned       fees   and   cost
advances.

       Except as provided in par. (4m), unearned fees and
       advanced payments of fees shall be held in trust until
       earned by the lawyer, and withdrawn pursuant to sub.
       (g).   Funds advanced by a client or 3rd party for
       payment of costs shall be held in trust until the
       costs are incurred.
       8
       SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
       9
           SCR 20:1.16(d) states as follows:

            Upon termination of representation, a lawyer
       shall take steps to the extent reasonably practicable
       to protect a client's interests, such as giving
       reasonable notice to the client, allowing time for
       employment of other counsel, surrendering papers and
       property to which the client is entitled and refunding
       any advance payment of fee or expense that has not
       been earned or incurred. The lawyer may retain papers
       relating to the client to the extent permitted by
       other law.

                                         9
                                                                         No.     2012AP484-D



Bryant was retained by M.C. as successor counsel in a personal

injury lawsuit that M.C. had filed arising out of injuries he

had suffered in a motor vehicle collision.                              Attorney Bryant

first appeared on M.C.'s behalf at a scheduling conference held

on January 6, 2010.              The resulting scheduling order required

M.C. to provide the defendants with a preliminary list of lay

and expert witnesses and a written summary report by February 5,

2010.     The   order      contained       the    following        statement      in     bold

capital letters:          "FAILURE TO ABIDE BY THIS ORDER MAY RESULT IN

SANCTIONS."          Attorney      Bryant        did     not   provide         either     the

preliminary witness list or the summary report as mandated by

the scheduling order, nor did he request an extension to do so.

    ¶16     Due to Attorney Bryant's noncompliance, the circuit

court held a second scheduling conference on May 14, 2010.                                At

that time, three months after the initial deadline, Attorney

Bryant filed M.C.'s list of expected lay and expert witnesses.

Attorney Bryant named all of M.C.'s treating physicians and a

vocational expert.              At the second scheduling conference, the
circuit   court      required      M.C.     to     provide       all    expert     witness

reports   by    July      16,    2010.      The        resulting       scheduling       order

contained      the     same      warning        about    possible        sanctions       for

noncompliance        as   had     been     in    the     first     scheduling       order.

Despite   the    warning,        Attorney       Bryant     failed       to   provide     the

expert witness reports by the scheduled date and did not seek an

extension of the deadline.

    ¶17     Attorney Bryant's noncompliance caused the defendants
to file a motion for sanctions.                  Attorney Bryant did not file a
                                            10
                                                                             No.   2012AP484-D



written response to the motion.                     After holding a hearing on the

motion    on    August       26,    2010,     the      court   decided       not   to   impose

sanctions at that time.                 It issued a third scheduling order,

which     extended      the        deadline       for    submitting         expert      witness

reports until October 8, 2010.                      This order again contained the

warning     about     the     possibility         of    sanctions      in    the     event   of

noncompliance.         It also specifically provided that if the expert

witness reports were not submitted by the new deadline, M.C.

would    be    barred       from     introducing         the   experts'       testimony      at

trial.      Attorney Bryant again failed either to comply with the

new scheduling order or to seek a further extension of time.

      ¶18      The    defendants       renewed         their   motion       for    sanctions,

seeking an order prohibiting M.C. from introducing any expert

testimony.          Attorney Bryant did not file a written response to

the motion or advise M.C. that the motion had been filed.                                    On

October       25,    2010,    the     court       entered      an    order    in     which   it

required M.C. within 10 days to pay to the defendants' counsel

the   $1,087.50        in    attorney       fees        that   had    been     incurred      in
connection with the August 26, 2010 hearing on the defendants'

original motion to compel.                    Attorney Bryant did not pay the

sanction himself or notify M.C. that he had been ordered to pay

the defendants' attorney fees.

      ¶19      In    November       2010    the     defendants       filed    a    motion    to

dismiss due to M.C.'s failure to prosecute and the noncompliance

with the various court orders.                      Attorney Bryant again did not

file a response or notify M.C. that such a motion had been
filed.      Finding that the plaintiff's failure to comply with its
                                               11
                                                                              No.     2012AP484-D



orders had been egregious, the circuit court granted the motion

to   dismiss.         It    issued       a    formal       order    of     dismissal          with

prejudice on January 6, 2011.                   Attorney Bryant did not inform

M.C. that his complaint had been dismissed and could not be re-

filed.

      ¶20    On February 28, 2011, M.C. met with Attorney Bryant to

discuss his case.           At that time Attorney Bryant admitted that he

had acted improperly, that M.C.'s case had been dismissed with

prejudice,     and     that       M.C.    would      not    be     able    to       obtain    any

recovery for his injuries.

      ¶21    According to Attorney Bryant's file, during the nearly

one-year period in which he had represented M.C., he had not

served any discovery requests on any of the defendants, had not

interviewed     any    of     M.C.'s         treating      physicians,          and    had    not

obtained any expert reports (even provisional ones) from the

physicians or from a vocational expert.                          He did not prepare or

file any written responses to the sanction motions.                                 There also

is   no     evidence       that    Attorney         Bryant       sent     any       written    or
electronic     correspondence            to   M.C.    regarding         the     case    or     the

various sanction motions filed by the defendants.

      ¶22    The complaint alleged six counts of misconduct related

to Attorney Bryant's representation of M.C.                          Count Seven of the

complaint alleged that Attorney Bryant had violated SCR 20:1.110


      10
       SCR 20:1.1 states, "A lawyer shall provide competent
representation to a client.    Competent representation requires
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."

                                               12
                                                               No.    2012AP484-D



by failing to provide the requisite skill, thoroughness, and

preparation reasonably necessary for the representation.                     The

complaint also alleged that Attorney Bryant had failed to act

with    reasonable   diligence,   in    violation   of   SCR 20:1.3      (Count

Eight), and had failed to make reasonable efforts to expedite

M.C.'s litigation, in violation of SCR 20:3.211 (Count Nine).                 In

addition, by failing to advise M.C. about his failures to comply

with    the   various   scheduling     orders,   about   the    two    sanction

motions, and ultimately about the dismissal of his complaint,

Attorney Bryant failed to keep his client reasonably informed

about the status        of the representation, in violation of SCR

20:1.4(a)(3)12 (Count Ten).       Those same failures of communication

also formed the basis for Count Eleven of the complaint, which

alleged a violation of SCR 20:1.4(b)13 for failing to explain

matters sufficiently to allow M.C. to make informed decisions

regarding the representation.            Count Twelve of the complaint

alleged that Attorney Bryant had knowingly disobeyed the circuit




       11
       SCR 20:3.2 states, "A lawyer shall make reasonable
efforts to expedite litigation consistent with the interests of
the client."
       12
       SCR 20:1.4(a)(3) states that a lawyer shall "keep the
client   reasonably  informed  about  the   status  of   the
matter; . . . ."
       13
       SCR 20:1.4(b) states, "A lawyer shall explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation."

                                       13
                                                                  No.     2012AP484-D



court's various scheduling and sanction orders, leading to the

dismissal of M.C.'s complaint, in violation of SCR 20:3.4(c).14

     ¶23     The last set of counts in the complaint related to

Attorney     Bryant's    representation      of    C.H.,   a   respondent      in    a

divorce      action.       Attorney     Bryant      apparently          entered     an

appearance in the divorce action after it had been pending for a

substantial amount of time.         On September 5, 2007, approximately

six months after he entered his appearance on C.H.'s behalf,

opposing counsel sent proposed findings of fact, conclusions of

law, and a judgment of divorce (the judgment) to Attorney Bryant

for his review pursuant to a directive from the court.                              On

October 24, 2007, opposing counsel sent a letter to the circuit

court stating that Attorney Bryant had not responded to the

proposed judgment.        On October 30, 2007, opposing counsel filed

a   motion    for   contempt,     which      was   noticed      for     hearing     on

November 28,     2007.     On    that   same   date   the      court    signed    the

proposed judgment without receiving any comments on the document

from Attorney Bryant.           One provision of the judgment was that
D.H., C.H.'s spouse, was to receive ownership of some individual

retirement accounts (IRAs) and an annuity that were titled in

C.H.'s name and were being administered by Northwestern Mutual

Life Insurance Company (NML).




     14
       SCR 20:3.4(c) states 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; . . . ."

                                        14
                                                            No.   2012AP484-D



    ¶24      On November 28, 2007, Attorney Bryant filed a notice

of appeal from the judgment of divorce signed by the circuit

court.    On that same date, the circuit court conducted a hearing

on D.H.'s motion for contempt.      The court found C.H. in contempt

and ordered her to prepare a Qualified Domestic Relations Order

(QDRO) that would transfer specified assets to D.H.

    ¶25     Attorney Bryant subsequently contacted Jewel Goodwin

at NML regarding the transfer of the specified assets to D.H.

Goodwin informed Attorney Bryant that NML required a copy of the

court's   judgment   before   it   would   transfer   the    assets.      On

December 28, 2007, Attorney Bryant sent NML a copy of the notice

of appeal he had filed rather than a copy of the judgment.               His

communication informed NML that C.H. had "appealed the entire

decision."    On the basis of this representation and document,

NML did not transfer the assets to D.H.

    ¶26     When D.H.'s counsel had not received a draft QDRO by

January 10, 2008, he requested a status conference with the

circuit court.     The court subsequently issued an order directing
Attorney Bryant to draft the QDRO consistent with the court's

judgment.    On February 18, 2008, D.H.'s counsel sent a letter to

Attorney Bryant inquiring about the status of the QDRO.                   On

April 1, 2008, D.H.'s counsel sent a letter to the circuit court

complaining that he had still not received a completed QDRO from

Attorney Bryant.     In late May 2008, the court ordered Attorney

Bryant to pay $500 to opposing counsel for his fees connected

with the delay in the preparation of the QDRO.              The court also
ordered Attorney Bryant to turn over all materials relating to
                                   15
                                                                   No.   2012AP484-D



the QDRO to a neutral attorney selected by the court, who would

prepare the QDRO.        The court further ordered that the neutral

attorney's fees would be paid by Attorney Bryant and his client.

     ¶27   In     October    2009    the    court   of   appeals    affirmed     the

circuit court's judgment of divorce.                Shortly thereafter, D.H.

sent a copy of the court of appeals' decision to Goodwin at NML,

who forwarded the information to Connie Piskula, who handled IRA

matters.    Although the circuit court's judgment had now been

affirmed on appeal, on October 29, 2009, Attorney Bryant sent a

facsimile transmission to Piskula, which stated that "the status

of   the   case    is   pending,      issues    remain     unresolved      and   no

distributions or changes to accounts or policies should be made

at this time."       On November 3, 2009, Attorney Bryant telephoned

Piskula and told her to wait on the transfer of the assets to

D.H. because Attorney Bryant had filed a motion for rehearing.

This was a false statement because he had not filed any such

motion.

     ¶28   On     November     17,    2009,     Piskula    sent      a   facsimile
transmission to Attorney Bryant, which recited the statements he

had made during the telephone call on November 3, 2009, and

asked for a copy of the motion for rehearing.                The communication

further advised Attorney Bryant that if Piskula did not receive

a copy of the motion by November 20, 2009, she would lift all

transfer restrictions on C.H.'s accounts.                 Attorney Bryant did

not respond.        Consequently, NML transferred ownership of the

IRAs and the annuity to D.H. on December 1, 2009, more than two
years after the entry of the divorce judgment.
                                           16
                                                                      No.   2012AP484-D



       ¶29   In a hearing held shortly after the transfer of the

accounts to D.H., the circuit court described Attorney Bryant's

statements in the matter as "misleading," "not truthful" and

"undertaken for the purpose of delay."

       ¶30   The   complaint     alleged       three    counts    arising       out   of

Attorney Bryant's representation of C.H. and his interactions

with NML.     By taking steps to delay the transfer of ownership of

the IRA and annuity accounts, when Attorney Bryant knew that

such    actions    would    serve    merely     to     harass    or    injure    D.H.,

Attorney     Bryant   violated      SCR   20:3.1(a)(3)15        (Count      Thirteen).

Further, Attorney Bryant's false statements to NML in which he

had misrepresented the status of the appeal and had claimed that

a motion for rehearing had been filed constituted violations of

SCR    20:4.1(a)(1)16      (Count   Fourteen).          Finally,      the   complaint

alleged that those same misrepresentations had also constituted

violations of SCR 20:8.4(c)17 (Count Fifteen).

       Procedural History before the Referee



       15
       SCR 20:3.1(a)(3) states that in representing a client, a
lawyer shall not "file a suit, assert a position, conduct a
defense, delay a trial or take other action on behalf of the
client when the lawyer knows or when it is obvious that such an
action would serve merely to harass or maliciously injure
another."
       16
       SCR   20:4.1(a)(1)   states   that   in  the   course  of
representing a client a lawyer shall not knowingly "make a false
statement of a material fact or law to a 3rd person; . . . ."
       17
       SCR 20:8.4(c) states that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; . . . ."

                                          17
                                                                                 No.    2012AP484-D



       ¶31    Attorney        Bryant       did        not    file    an     answer        to    the

complaint.          After the referee was appointed, Attorney Bryant

reached a stipulation with the OLR.                         The stipulation was not set

forth in a written document signed by the parties.                                 Rather, at a

May 17, 2012 hearing the parties orally put the stipulation on

the record through the OLR's examination of Attorney Bryant.

Through      his    answers     to       the    OLR's       questions,      Attorney       Bryant

stipulated that the factual allegations in the complaint were

accurate and that he had committed all of the 15 counts of

misconduct         alleged    in     the       complaint.           With    respect        to   the

requested sanction, Attorney Bryant acknowledged that the OLR

was seeking a four-month suspension of his license to practice

law in Wisconsin, and he agreed to jointly request that level of

discipline.           Attorney       Bryant       also       stipulated          that     he    owed

restitution in the amount of $1,500 to his former client V.F.

       ¶32    During      the   examination,               the   OLR's     counsel        obtained

statements         from      Attorney          Bryant       that     he     understood           the

allegations of the complaint, that he was not being coerced into
entering into the stipulation, that no one had promised him

anything to enter into the stipulation, that he understood that

he had a right to consult with and be represented by counsel,

that   he    was     waiving       his    right       to    counsel,       and     that    he    was

entering the stipulation freely and voluntarily.

       ¶33    Following the examination conducted by counsel for the

OLR, the referee also asked a series of questions of Attorney

Bryant.       One of the questions the referee asked was whether
there was anything Attorney Bryant wished the referee to know
                                                 18
                                                                        No.    2012AP484-D



before      she   prepared     her    report.        Attorney        Bryant     spoke   in

response about having a sense of remorse and about accepting

responsibility for his misconduct.                     During this part of the

hearing, Attorney Bryant also agreed to repay the entire $1,500

advanced fee to V.F. and J.R.                 He did not mention any specific

factors that had caused him to engage in the misconduct.

       ¶34    Over the next several months following this hearing,

the referee asked the parties to provide information regarding

Attorney Bryant's employment history so she could consider that

in    the     context     of     preparing          her     report      and     sanction

recommendation.         She was interested in particular whether there

was a reason why Attorney Bryant's conduct had changed after

having practiced approximately 13 years without any misconduct.

The    referee     specifically        asked      whether      Attorney       Bryant    had

experienced any mental health or substance abuse problems.

       ¶35    Attorney    Bryant       did    not    respond      to    the    referee's

repeated      requests    for        information.           The   OLR     on    multiple

occasions advised the referee that it was unaware of any issues
related to mental health or substance abuse and that there was

no    evidence     regarding     those       matters      in   the     record    of     the

proceeding.        It stated that its file in the matter did not

"indicate the need to explore such issues."

       ¶36    On September 13, 2012, the OLR's counsel sent a letter

to the referee, stating that an OLR investigator had received a

letter indicating that Attorney Bryant was receiving treatment

for mental health issues.               It again asserted that it had not


                                             19
                                                                      No.    2012AP484-D



possessed any information regarding this issue prior to this

letter.

      ¶37   On September 18, 2012, the referee filed her report

and recommendation.          Based on Attorney Bryant's stipulation, the

referee found that the allegations of the complaint had been

admitted and that Attorney Bryant had violated each of the rules

as alleged in the 15 counts of the complaint.

      ¶38   Turning     to    the   issue      of   the   appropriate        level   of

discipline, the referee agreed with the parties that a four-

month suspension of Attorney Bryant's license to practice law in

this state would be proper.              She added a recommendation that as

a condition of reinstatement Attorney Bryant should be ordered

"to contact WisLAP18 and agree to all evaluations WisLAP demands

at Mr. Bryant's expense, to sign a monitoring contract with

WisLAP if so recommended by WisLAP, to execute any documents and

releases    necessary       to   allow    WisLAP     to   monitor      Mr.    Bryant's

treatment, to follow all recommendations of WisLAP, pay all fees

associated     with     a    contract     with      WisLAP,     and     successfully
complete    his   WisLAP     contract . . . ."            In   light    of    Attorney

Bryant's agreement at the May 17, 2012 hearing, the referee

further recommended that Attorney Bryant should be ordered to

pay   $1,500   in     restitution    to     V.F.    and   J.R.19       Finally,      the


      18
       WisLAP refers             to the Wisconsin              Lawyers Assistance
Program, which is a              member service of             the State Bar of
Wisconsin.
      19
       The OLR's statement on                  restitution     concurs       with   this
recommendation for restitution.

                                          20
                                                               No.   2012AP484-D



referee recommended that Attorney Bryant be required to pay the

full costs of this proceeding.20

      ¶39    In the discussion section of her report, the referee

commented that Attorney Bryant had been "very remorseful" for

his actions and had "exhibited genuine concern for his conduct."

The referee also raised the issue of mental health or substance

abuse problems.        She acknowledged that there was no evidence in

the record regarding such issues.             Moreover, the referee stated

that at the May 17, 2012 hearing Attorney Bryant had appeared

coherent, had acknowledged the nature of his behavior, and had

accepted responsibility for his misdeeds.             The referee explained

that she had sought the information regarding Attorney Bryant's

employment history in order to demonstrate in her report that

his misconduct at issue in this proceeding had been a "blip on

an   otherwise     healthy   career."         The   referee   continued     that

Attorney Bryant's ongoing failure over several months to respond

to   any    of   her   requests   for   the    employment     information    had

bewildered her and had led her to believe that whatever problems
had precipitated the misconduct had not been resolved.                    Thus,

she had gone beyond the parties' stipulation to include the

recommendation for monitoring by WisLAP.

      Post-report Proceedings in this Court



      20
       The   OLR  subsequently  filed  a   statement  of  costs
indicating that the costs of the proceeding until that time had
been $2,343.82.   The referee then filed a supplemental report
again recommending that Attorney Bryant be required to pay the
full costs of the proceeding.

                                        21
                                                                               No.     2012AP484-D



       ¶40    Within a week after the referee filed her report in

this matter, the OLR received a letter from one of Attorney

Bryant's health care providers.                    The provider stated that he was

writing at the request of and with the permission of Attorney

Bryant.        The letter described health issues which were then

affecting Attorney Bryant and which had led to symptoms that

included problems with memory, concentration, and the ability to

make decisions.         The letter further stated that due to those

health    issues,     Attorney           Bryant       was    unable      at    that     time     to

respond to complaints that had been filed with the OLR.                                          It

requested that the OLR temporarily suspend all administrative

proceedings involving Attorney Bryant.

       ¶41    Although the referee had expressed concern about the

reasons       for   Attorney           Bryant's        misconduct        and     whether        any

underlying problems had been resolved, there is no indication

that the OLR provided a copy of the letter to the referee in

this matter.        The OLR also did not file a copy of the letter in

this   proceeding.           It    did      file      a     copy   of    the    letter      in    a
miscellaneous       court     file          in   which       the    OLR       was     seeking     a

temporary       suspension         due      to    Attorney         Bryant's          failure     to

cooperate with other grievance investigations.

       ¶42    As a result of the contents of this letter, this court

subsequently        issued        an     order        on    May    24,    2013,        requiring

responses from both Attorney Bryant and the OLR.                                     The court's

order asked the parties to provide an update on the status of

Attorney Bryant's health, to discuss whether he was currently
able     to     participate            in    disciplinary           investigations              and
                                                 22
                                                                   No.     2012AP484-D



proceedings, whether his health problems had any impact on his

ability to make a knowing and voluntary decision to enter into

the stipulation in this case, and whether he had a basis or a

desire   to     assert   in    this    case    that    the    sanction      for   any

misconduct found in this case should be mitigated because of

health problems during the time of the misconduct.

    ¶43       Attorney Bryant's substantive response to the court's

order stated that his health had improved over the preceding

several months and that he was now able to participate in all

disciplinary      investigations       and    proceedings.          The     response

further stated that while his health problems had affected the

energy    and    commitment     with    which     he    had    dealt      with    the

proceedings before the referee, his decision to enter into the

stipulation and waive certain rights had been made knowingly,

intelligently and voluntarily.               Finally, the response asserted

that while his health problems had been a contributing factor in

his failures to perform diligently and competently in the cases

at issue in this proceeding, he did not wish to argue in this
proceeding that his misconduct had been caused by his health

problems.        He   stated    that    he    continued       to   stand     by   the

stipulated request for a four-month suspension of his license to

practice law in Wisconsin.

    Discussion and Decision

    ¶44       When we review a referee's report and recommendation

in an attorney disciplinary proceeding, we affirm a referee's

findings of fact unless they are found to be clearly erroneous,
but we review the referee's conclusions of law on a de novo
                                        23
                                                                                No.   2012AP484-D



basis.       In re Disciplinary Proceedings Against Inglimo, 2007 WI

126,    ¶5,       305   Wis. 2d 71,        740 N.W.2d 125.                 We   determine       the

appropriate level of discipline given the particular facts of

each    case,      independent        of    the       referee's       recommendation,           but

benefiting         from   it.        In    re   Disciplinary          Proceedings        Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶45    In light of Attorney Bryant's stipulation, we accept

the referee's findings of fact based on the OLR's complaint.                                    We

further agree with the referee that those findings support the

legal    conclusion        that      Attorney         Bryant        committed     the    ethical

violations         alleged      in   each       of    the      15    counts     of    the     OLR's

complaint.

       ¶46    Turning to the issue of sanction, we determine that a

four-month suspension is an appropriate level of discipline to

impose in light of the facts of this case.                              Given the presence

of prior discipline, the number of counts of misconduct, the

number       of     clients      impacted            by     the     misconduct,         and     the

seriousness of the misconduct, a suspension is clearly required.
Recognizing that each case is unique in its facts, a four-month

suspension here is supported by the cases cited by the OLR in

its sanction memorandum to the referee.                             See In re Disciplinary

Proceedings         Against     Hammis,         2011      WI   3,    331    Wis. 2d 19,         793

N.W.2d 884;        In re Disciplinary Proceedings Against Goldstein,

2004 WI 87, 273 Wis. 2d 517, 681 N.W.2d 891.

       ¶47    We also agree with the referee that Attorney Bryant

should be ordered to pay restitution to V.F. and J.R. in the


                                                24
                                                                       No.   2012AP484-D



amount of $1,500.        Attorney Bryant has explicitly agreed that

restitution in this amount is "due and owing."

       ¶48    We differ from the referee, however, with respect to

her    recommendation    regarding        the    imposition       of    conditions    on

Attorney Bryant's reinstatement.                We share the referee's concern

that    something    appears      to    have    changed    in     Attorney    Bryant's

practice of law that led him into running afoul of the Rules of

Professional Conduct after years of properly practicing law.                          We

were particularly concerned by the letter submitted by Attorney

Bryant's health care provider which stated that in 2012 Attorney

Bryant       was    incapable       of     participating          in     disciplinary

proceedings or even responding to OLR's investigatory requests.

Attorney Bryant through his counsel, however, has stated that

his health has improved.            The OLR, which has been continuing to

deal with Attorney Bryant in another pending proceeding, has not

advised this court that his health problems are still rendering

him unable to make reasoned decisions or otherwise act with the

judgment     required   of     an      attorney.        Moreover,       we   note   that
Attorney Bryant has sought treatment for the problems that have

afflicted him.

       ¶49    For all of these reasons, we do not think it necessary

to require Attorney Bryant to submit to an extended monitoring

program      administered    by     WisLAP.        In     order    to    ensure     that

Attorney Bryant's health will be in a sufficient condition to

allow him to resume the practice of law, however, we conclude

that the reinstatement of his license to practice law in this
state following his four-month suspension should be conditioned
                                          25
                                                                                 No.    2012AP484-D



upon him obtaining a satisfactory mental health evaluation and

providing       that       evaluation          to    the      OLR.      In       order       to     be

satisfactory,         the       evaluator       must       render     an     opinion,         to    a

reasonable          degree      of     professional           certainty,         that       Attorney

Bryant    is    presently            capable    of       discharging       the    duties       of    a

person    licensed         to    practice       law      in   this   state.            We   further

conclude       that    as       an    additional          condition    of        reinstatement,

Attorney Bryant must execute medical releases that authorize the

OLR for a period of three years to review his medical and mental

health records and to speak with his medical or mental health

care providers.              Once Attorney Bryant has complied with these

conditions and the other conditions that are always required for

reinstatement after a disciplinary suspension of less than six

months,       his    license         to   practice        law   in    this       state       can    be

reinstated.

    ¶50        Finally, we turn to the issue of the costs of this

proceeding.          Attorney Bryant has not objected to the statement

of costs submitted by the OLR.                           Because there are no factors
present in this case that would lead us to deviate from our

general policy of imposing all costs on an attorney who has been

found    to    have     committed         professional          misconduct,            we   require

Attorney Bryant to pay the full costs of this proceeding.

    ¶51        IT IS ORDERED that the license of Andrew J. Bryant to

practice law in Wisconsin is suspended for a period of four

months, effective the date of this order.

    ¶52        IT IS FURTHER ORDERED that, as a condition of the
reinstatement         of     his      license       to    practice     law       in     Wisconsin,
                                                26
                                                                                 No.    2012AP484-D



Andrew J. Bryant shall take the following actions:                                 (1) obtain a

satisfactory mental health evaluation, at his own expense, in

which     the     evaluator         states,         to    a     reasonable             degree       of

professional       certainty,          that    Andrew         J.       Bryant     is    presently

capable     of    discharging          the    duties      of       a    person     licensed         to

practice     law       in    this     state;     (2)      provide           a    copy    of     that

evaluation to the Office of Lawyer Regulation; and (3) execute

medical     record      releases       that    authorize           the      Office      of    Lawyer

Regulation for a period of three years to review his medical and

mental health records and to speak with medical or mental health

care providers.

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

of this order, Andrew J. Bryant shall pay restitution in the

amount of $1,500 to V.F. and J.R.

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

of this order, Andrew J. Bryant shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

      ¶55    IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

      ¶56    IT    IS       FURTHER    ORDERED      that       Andrew       J.    Bryant       shall

continue compliance with the provisions of SCR 22.26 concerning

the   duties      of    a     person     whose      license            to   practice         law    in

Wisconsin has been suspended.

      ¶57    IT    IS        FURTHER     ORDERED         that          compliance       with       all

conditions of this order is required for reinstatement.                                            See
SCR 22.28(2).
                                               27
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    ¶58        PATIENCE DRAKE ROGGENSACK, J.         (concurring).      While I

concur    in    the   court's     decision,   I   write   separately    because

I would    not     require   as    a   condition    of    reinstatement     that

Attorney Bryant execute medical releases that authorize the OLR

for a period of three years to review his medical, including

mental health, records or to speak with his medical or mental

health care providers.




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