                                                              2017 WI 5

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP684-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against David A. Lemanski, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        David A. Lemanski,
                                  Respondent.

                           DISCIPLINARY PROCEEDINGS AGAINST LEMANSKI

OPINION FILED:          February 1, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2017 WI 5
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2016AP684-D


STATE OF WISCONSIN                           :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David A. Lemanski, Attorney at Law:


Office of Lawyer Regulation,                                         FILED
           Complainant,                                          FEB 1, 2017
      v.                                                           Diane M. Fremgen
                                                                Clerk of Supreme Court
David A. Lemanski,

           Respondent.




      ATTORNEY    disciplinary        proceeding.         Attorney         publicly

reprimanded.


      ¶1   PER   CURIAM.     We    review   the    report     of    Referee      John

Nicholas   Schweitzer,     which    concluded     that     Attorney      David      A.

Lemanski had committed three counts of professional misconduct

and recommended (1) that the court publicly reprimand Attorney

Lemanski, (2) that Attorney Lemanski's continued practice of law

be conditioned on his payment of a sanction imposed by the Grant

County circuit court, and (3) that Attorney Lemanski be ordered
to pay the costs of this proceeding, which were $1,192.03 as of
                                                                              No.     2016AP684-D



September 19, 2016.                Because no appeal of this report has been

filed, our review of this matter proceeds pursuant to Supreme

Court      Rule    (SCR)      22.17(2).1           Ultimately,        we    conclude    that   a

public reprimand and the imposition of a condition on Attorney

Lemanski's practice of law in this state are appropriate forms

of    discipline         in   this       matter.          We   further       determine      that

Attorney Lemanski should be required to pay the full costs of

this proceeding.

       ¶2     Attorney Lemanski was admitted to the practice of law

in this state in October 2002.                         He most recently practiced law

in Dubuque, Iowa.

       ¶3     Attorney Lemanski has been the subject of professional

discipline in this state on one prior occasion.                                   In March 2015

this court suspended his license to practice law in Wisconsin

for   a     period    of      60    days,     as       discipline     reciprocal       to   that

imposed      by    the     Supreme       Court     of     Iowa.       In     re    Disciplinary

Proceedings Against Lemanski, 2015 WI 10, 360 Wis. 2d 643, 858

N.W.2d 696.           It      does      not   appear        that      Attorney       Lemanski's
Wisconsin         license     was       reinstated       following         that    disciplinary

suspension.           There        is    no   evidence         that    Attorney        Lemanski

       1
           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.


                                                   2
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complied     with       the     applicable         reinstatement          requirements         of

SCR 22.28(2),          including      the    filing     of     an   affidavit          with   the

Office of Lawyer Regulation (OLR) showing full compliance with

all    of   the       terms    and   conditions       of     this    court's       suspension

order.      In addition, Attorney Lemanski's license is also subject

to    two   other       suspensions.          First,      in    October     2015        Attorney

Lemanski's        license      was   administratively            suspended        due    to   his

failure     to    pay    bar    dues    and    assessments          and   his     failure      to

complete the trust account certification.                           Second, on November

4, 2015, this court temporarily suspended Attorney Lemanski's

license due to his willful failure to cooperate with a grievance

investigation conducted by the OLR.                    Office of Lawyer Regulation

v.    Lemanski,         No.    2015XX1279-D,         unpublished          order         (S.   Ct.

November 4, 2015).

       ¶4    The OLR commenced this action with the filing of a

complaint        alleging      three    counts       of      professional         misconduct.

Attorney      Lemanski         filed    an     answer          admitting        all      of   the

allegations of the complaint.                 Consequently, the referee granted
the OLR's motion for judgment on the pleadings.                            While Attorney

Lemanski     admitted         the    allegations       of      misconduct,        he    did   not

agree to the level of discipline sought by the OLR.                                    As it had

requested        in    its    complaint,       the     OLR      urged     the     referee      to

recommend        the    imposition      of     a    public       reprimand.             Attorney

Lemanski, on the other hand, asked that the reprimand be private

in nature.        As noted above, the referee agreed with the OLR that

a public reprimand was the appropriate level of discipline.


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      ¶5    Given Attorney Lemanski's admissions in his answer,

the referee used the allegations of the OLR's complaint as his

findings of fact.         They are summarized below.

      ¶6    Counts    1    and    2    of    the     OLR's    complaint       relate    to

Attorney Lemanski's representation of S.K. in a legal separation

proceeding.       S.K. retained Attorney Lemanski in September 2014.

In late November 2014 he informed Attorney Lemanski that he was

terminating his services.

      ¶7    Attorney Lemanski did not notify opposing counsel that

his representation of S.K. had been terminated.                       Accordingly, in

early January 2015 opposing counsel sent a notice of deposition

of S.K. to Attorney Lemanski, assuming that Attorney Lemanski

was still representing S.K.              Because Attorney Lemanski failed to

forward     the   notice     to       him,    S.K.    did     not     appear     at    the

deposition.

      ¶8    On January 29, 2015, opposing counsel filed a motion

to compel S.K.'s deposition and for other relief.                            On February

11, 2015, Attorney Lemanski formally withdrew as S.K.'s counsel.
      ¶9    On February 12, 2015, the judge in S.K.'s proceeding

ordered Attorney Lemanski to pay $1,471.50 to the opposing party

as reimbursement for its fees and costs related to the missed

deposition    and    other       missed      discovery       deadlines.         Attorney

Lemanski failed to pay the fees and costs as ordered.

      ¶10   In June 2015 the OLR sent a written notice to Attorney

Lemanski advising him that it was investigating his conduct in

the   representation       of     S.K.      and    directing    him    to     provide    a
response by July 27, 2015.               On July 24, 2015, Attorney Lemanski
                                             4
                                                                            No.     2016AP684-D



asked for and was orally granted an extension of time until

August       17,     2015,    to     submit        his    written        response     to    the

grievance.         He was told that he should call the OLR if he needed

more    time       to   respond.          Attorney       Lemanski,       however,    did    not

submit a response nor did he ask for a further extension of

time.

       ¶11     Consequently,          on    August        24,     2015,    the      OLR    sent

Attorney       Lemanski       a    second    letter       requesting       a    response     by

September 4, 2015.            Attorney Lemanski received the OLR's letter,

but failed to respond.

       ¶12     In September 2015 the OLR moved the court for the

temporary          suspension       of     Attorney       Lemanski's        license        under

SCR 22.03(4) due to his willful failure to cooperate with the

OLR's    investigation.              This    court       issued     an    order     directing

Attorney Lemanski to show cause why his license should not be

temporarily suspended, but he did not respond to the order.

Ultimately, on November 4, 2015, this court granted the OLR's

motion and temporarily suspended Attorney Lemanski's license to
practice law in this state.

       ¶13     Based     on       these    facts,    the        referee    concluded       that

Attorney       Lemanski       had    committed       two        counts    of    professional

misconduct.             First,      the     referee       determined        that     Attorney

Lemanski's failure to pay the costs and fees of the opposing

party    as        ordered    by     the     circuit       court     had       violated      SCR




                                               5
                                                           No.    2016AP684-D



20:3.4(c).2      Second,   the    referee     concluded    that     Attorney

Lemanski's failure to respond to the OLR's letters had violated

SCR 22.03(2) and (6),3 which are enforced through SCR 20:8.4(h).4

     ¶14    Count 3 of the OLR's complaint stems from Attorney

Lemanski's    representation     of   L.A.   in   a   divorce    proceeding.


     2
       SCR 20:3.4(c) provides:   "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) provides:

     (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 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)."


                                      6
                                                                        No.      2016AP684-D



Attorney      Lemanski    formally      appeared        for   L.A.    on     November    7,

2008, a little less than one month after the divorce proceeding

had been initiated.            The referee found that it was reasonably

foreseeable       at     the    time       that     the       total     cost       of   the

representation would exceed $1,000.                     Indeed, Attorney Lemanski

accepted a $2,000 advanced payment from L.A. at the start of the

representation.         Nonetheless, Attorney Lemanski never prepared a

written fee agreement.

       ¶15     Attorney Lemanski represented L.A. through a trial,

through the entry of a judgment of divorce, and through the

filing of a notice of appeal.                     On August 9, 2010, Attorney

Lemanski withdrew as L.A.'s counsel.                     Attorney Lemanski billed

for his services on an hourly basis.                    By the time he withdrew as

counsel, the entire $2,000 advanced fee had been applied toward

Attorney       Lemanski's      fees    and       expenses.        Indeed,         Attorney

Lemanski      later    submitted      an   additional         invoice       to   L.A.   that

exceeded $1,000.

       ¶16     On the basis of these facts, the referee determined
that       Attorney    Lemanski's     failure      to     complete      a    written    fee

agreement, despite his acceptance and use of a $2,000 advance

fee and his submission of an additional invoice in excess of

$1,000, had violated SCR 20:1.5(b)(1) and (2).5


       5
           SCR 20:1.5(b)(1) and (2) provides:

       (1) The scope of the representation and the basis or
       rate of the fee and expenses for which the client will
       be responsible shall be communicated to the client in
       writing, before or within a reasonable time after
                                                       (continued)
                                             7
                                                                     No.   2016AP684-D



       ¶17    The referee noted that in light of Attorney Lemanski's

admission of the OLR's factual allegations, the sole issue of

dispute between the parties was the level of discipline to be

imposed.       The OLR sought a public reprimand, the conditioning of

Attorney Lemanski's practice of law in this state on his payment

of the $1,471.50 in fees and costs, as ordered by the circuit

court, and a requirement that Attorney Lemanski pay the full

costs of this disciplinary proceeding.                      Attorney Lemanski, on

the    other     hand,    argued     that       a   private   reprimand        was   the

appropriate level of discipline.

       ¶18    The referee agreed with the OLR's request for a public

reprimand.       He noted that the purposes of imposing professional

discipline include protecting the public from further misconduct

by    the    respondent     attorney,       deterring       other   attorneys        from

engaging       in   similar        misconduct,        and     rehabilitating          the

respondent      attorney.      The    referee        determined     that   a    private



       commencing the representation, except when the lawyer
       will charge a regularly represented client on the same
       basis or rate as in the past. If it is reasonably
       foreseeable that the total cost of representation to
       the client, including attorney's fees, will be $1000
       or less, the communication may be oral or in writing.
       Any changes in the basis or rate of the fee or
       expenses shall also be communicated in writing to the
       client.

       (2) If 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.     2016AP684-D



reprimand would not sufficiently impress upon Attorney Lemanski

the need to practice law competently and in accordance with his

ethical      obligations.                The        referee       also        believed     that     the

imposition        of     a    private         reprimand           on     an    attorney       who   had

knowingly violated a court order and had knowingly chosen not to

cooperate         with       an    OLR    investigation                "would     not     adequately

impress      on    other          attorneys         the    need        to     follow    the   rules."

Finally, the referee concluded that imposing a private reprimand

would not have any rehabilitative effect on Attorney Lemanski.

       ¶19    The referee further agreed with the OLR that Attorney

Lemanski should be required, as a condition of his practice of

law in this state, to make the $1,471.50 payment as ordered by

the    circuit      court.           In       its    restitution              statement,      the   OLR

acknowledged that this amount is not really restitution because

it is not the return of money held by the respondent attorney.

Nonetheless, the OLR urged that payment of this award to the

party opposing S.K. be included in the court's judgment as a way

to reinforce the circuit court's order.
       ¶20    With       respect         to    the        issue     of      costs,      the   referee

determined that there was no basis to deviate from the court's

usual practice of imposing full costs on an attorney who is

found to have committed professional misconduct.                                   Although costs

often are not imposed where a respondent attorney resolves the

matter by stipulation prior to the filing of a complaint, in

this   case       Attorney         Lemanski         chose     not      to     enter    into    such   a

stipulation.


                                                     9
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      ¶21   The standard we employ to review a referee's report

and recommendation in an attorney disciplinary case is well-

established.       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 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 to impose 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.

      ¶22   In this instance, given Attorney Lemanski's admission

of the allegations in the OLR's complaint, there is no dispute

that the referee's factual findings are appropriate.                    Moreover,

we conclude that those factual findings adequately support legal

conclusions that Attorney Lemanski engaged in the three counts

of professional misconduct with which he was charged.

      ¶23   The      primary        matter     here     that      requires       our
consideration is the proper level of discipline to impose on

Attorney Lemanski.      We agree with the OLR and the referee that a

private     reprimand     would       not     be     sufficient    under      these

circumstances and that a public reprimand is the appropriate

level of discipline.         See In re Disciplinary Proceedings Against

Stobbe, 2015 WI 43, 362 Wis. 2d 69, 862 N.W.2d 152 (imposing

public reprimand, based upon respondent attorney's stipulation

of facts and misconduct, where attorney failed to proceed with
diligence    and    failed     to    comply    with    court   orders    to     file
                                        10
                                                                           No.   2016AP684-D



compliant briefs and to pay sanctions imposed for failing to do

so).    Here, there was misconduct in connection with two separate

representations.            Further, the misconduct involved the failure

to    obey    a     court    order,   which      is     a   serious        breach     of   an

attorney's obligations as an officer of the court.                               Moreover,

this    is    not    the    first   time   that       Attorney    Lemanski       is    being

disciplined         for    professional    misconduct.           The       earlier    60-day

reciprocal suspension stemmed in part from failing to respond to

a    demand    for    information     from      the    regulatory          authorities     in

Iowa.    His failure here to respond to the OLR's request for a

response       to     its     grievance      investigation            is     therefore      a

continuing         pattern    of    disregard     toward        his     obligations        to

cooperate with grievance investigations.                         We conclude that a

private reprimand in such circumstances would not sufficiently

impress upon Attorney Lemanski the seriousness of his misconduct

and the need for him to conform his conduct in the future to the

Rules of Professional Conduct for Attorneys.

       ¶24    We turn next to the referee's recommendation that we
require Attorney Lemanski to pay the opposing party's costs and

fees in the amount of $1,471.50, as ordered by the court in

S.K.'s legal separation proceeding.                     We agree with the OLR's

observation that placing this condition on Attorney Lemanski's

practice      of     law     does   not    constitute       a    restitution          award.

Imposing such a condition would not require Attorney Lemanski to

restore funds to the proper recipient of the funds, either a

client or a third party.              Nonetheless, we may require Attorney
Lemanski to make this payment as a form of discipline that is
                                           11
                                                                                No.     2016AP684-D



designed to promote his compliance with the law and ethical

obligations as an officer of the court.                             See SCR 21.16(1m)(d)

and (e) (professional discipline may include the imposition of

conditions on the attorney's continued practice of law and the

imposition of monetary payments).                       It is an obvious maxim that

an officer of the court must obey the lawful orders of the

court.      Accordingly, we direct Attorney Lemanski, as a condition

of   his    practice        of    law    in     this   state,       to    pay     the    opposing

party's costs and fees in the S.K. matter in the amount of

$1,471.50, as ordered by the circuit court.                              We differ from the

referee's recommendation with respect to the time for Attorney

Lemanski       to    accomplish         this    payment.           Attorney       Lemanski      has

already had almost two years to make this payment pursuant to

the circuit court's order.                 We therefore require him to make the

payment within the next 60 days rather than the 120-day period

recommended by the referee.

      ¶25      We    also    require      Attorney          Lemanski      to    pay     the   full

costs of this proceeding.                      There is no reason here to depart
from our general practice of imposing costs on an attorney found

to have committed professional misconduct.                               Although Attorney

Lemanski       did    admit       the    factual       allegations          and       charges      of

misconduct in the OLR's complaint, thereby avoiding the need for

a disciplinary hearing, he chose not to enter a stipulation

under    SCR    22.12,       which      resulted       in    the    OLR's       drafting      of   a

complaint       and    the       appointment      of    a    referee.           He     should      be

responsible for the associated costs of this proceeding.


                                                 12
                                                                                No.    2016AP684-D



      ¶26    Finally,      we     address        the    status        of    the       temporary,

disciplinary, and administrative suspensions that currently are

imposed on Attorney Lemanski's license to practice law in this

state.      Because this opinion resolves the matter for which we

previously    imposed       the     temporary          suspension          due    to    Attorney

Lemanski's    failure       to    cooperate,         we    now     lift     that       temporary

suspension    under       SCR    22.03(4).          Attorney          Lemanski's        license,

however, remains subject to the previous disciplinary suspension

and to the administrative suspension imposed due to his failure

to pay bar dues and assessments and his failure to complete the

trust account certification.                   Attorney Lemanski must complete

the   necessary         steps      to     lift      all      such       disciplinary          and

administrative          suspensions       before        he      will       be     entitled     to

practice law in this state again.

      ¶27    IT    IS    ORDERED        that   David       A.    Lemanski         is    publicly

reprimanded for his professional misconduct.

      ¶28    IT    IS    FURTHER        ORDERED      that       the    November         4,   2015

temporary suspension of David A. Lemanski's license to practice
law in Wisconsin, due to his willful failure to cooperate with

the grievance investigation in this matter by the                                      Office of

Lawyer Regulation, is lifted.

      ¶29    IT    IS    FURTHER    ORDERED         that     the      60-day      disciplinary

suspension OF David A. Lemanski's license to practice law in

Wisconsin will remain in effect until he complies with all of

the   requirements        for     reinstatement            following        a     disciplinary

suspension of less than six months and an order of reinstatement
is issued.        See SCR 22.28(2).
                                               13
                                                         No.   2016AP684-D



    ¶30    IT   IS    FURTHER   ORDERED    that    the   administrative

suspension of David A. Lemanski's license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues and his

failure to file a trust account certification, will remain in

effect until each reason for the administrative suspension has

been rectified pursuant to SCR 22.28(1).

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

of this order, as a condition of his practice of law in this

state, Attorney Lemanski shall pay to the opposing party in the

S.K. legal separation matter the amount of $1,471.50 in costs

and fees, as ordered by the circuit court.        When the payment has

been made, Attorney Lemanski shall file with the clerk of this

court and serve on the Office of Lawyer Regulation an affidavit

attesting to the completion of the payment.

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

of this order, David A. Lemanski shall pay to the Office of

Lawyer   Regulation   the   costs   of   this   proceeding,    which   are

$1,192.03.
    ¶33    IT IS FURTHER ORDERED that the Director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.




                                    14
    No.   2016AP684-D




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