                                                              2015 WI 29

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP1137-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Tina M. Dahle, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Tina M. Dahle,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST DAHLE

OPINION FILED:          March 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2015 WI 29
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.    2013AP1137-D


STATE OF WISCONSIN                              :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Tina M. Dahle, Attorney at Law:

Office of Lawyer Regulation,                                           FILED
            Complainant,
                                                                  MAR 18, 2015
      v.
                                                                     Diane M. Fremgen
                                                                  Clerk of Supreme Court
Tina M. Dahle,

            Respondent.




      ATTORNEY      disciplinary     proceeding.           Attorney's         license

suspended.



      ¶1    PER   CURIAM.    We    review   a       report    filed     by    referee

Robert     E.   Kinney   recommending   that         the     court     suspend      the

Wisconsin law license of Attorney Tina M. Dahle for two years

and six months; require Attorney Dahle to pay restitution as

described herein; and require Attorney Dahle to pay the full

costs of this disciplinary proceeding, which total $11,911.68 as

of December 8, 2014.        No appeal has been filed in this matter,
                                                                          No.    2013AP1137-D



so    our    review      proceeds        pursuant            to   Supreme       Court     Rule

(SCR) 22.17(2).

      ¶2     We     adopt        the     referee's           findings     of     fact      and

conclusions of law and we agree that Attorney Dahle's license to

practice law in Wisconsin should be suspended for two years and

six months.        We also agree with the referee that Attorney Dahle

should be required to pay the full costs of this proceeding.

For the reasons explained in this opinion, we accept part of the

recommendation regarding restitution.

      ¶3     Attorney Dahle was admitted to the Wisconsin State Bar

in 2002 and practiced in the Green Bay area.                        On April 24, 2012,

her law license was suspended for failure to cooperate with the

Office of Lawyer Regulation's (OLR) investigation into some of

the grievances giving rise to this disciplinary proceeding.                               Her

license     is    also   subject       to   an       administrative       suspension      for

failure to pay Wisconsin State Bar dues, failure to file a trust

account certification, and noncompliance with continuing legal

education requirements.                She has no other prior disciplinary
history.     Her license remains suspended.

      ¶4     In May 2013, the OLR filed a complaint alleging 50

counts of professional misconduct.                     Over the ensuing months, the

OLR   investigated       several       additional            grievances     filed   against

Attorney Dahle.          As a result, the OLR amended its disciplinary

complaint several times, culminating in the filing of a third

amended     complaint       on    June      4,       2014,    alleging     55    counts    of

professional misconduct.


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       ¶5        Attorney Dahle briefly contested some of the charges

but ultimately entered pleas of "no contest" to all 55 charged

counts      of    misconduct.         She      opted    to    forego     an    evidentiary

hearing and to address the issue of sanctions in writing.

       ¶6        The referee proceeded to find misconduct as to each of

the 55 counts charged.               Specifically, the referee incorporated

by    reference        key    portions    of    the    original    complaint,       second

amended complaint, and third amended complaint, and, based on

the uncontested facts contained in those paragraphs, the referee

determined that there was an adequate factual basis for each of

the 55 charges alleged in the complaint and amendments thereto.

We wholly agree with the referee that the facts alleged by the

OLR support a conclusion of professional misconduct on each of

the   55    counts      of    misconduct       set    forth   in   the    complaint,     as

amended.

       ¶7        The allegations of misconduct at issue are varied and

numerous.         Attorney Dahle failed to commence actions prior to

the expiration of statutes of limitations, failed to appear in
court on several cases, and missed filing deadlines for briefs,

discovery, and witness disclosures.                      She essentially abandoned

her law practice and her clients in 2012 when she closed her

office without notice.               Her clients were left with cases in a

state of neglect with no way to contact their attorney.                                  In

addition,        she    borrowed     or     took      some    $400,000     from    clients

without      regard          to   conflict      of     interest    restrictions         and

requirements.           Attorney Dahle also repeatedly failed to respond


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to inquiries from the OLR, resulting in her temporary suspension

from the practice of law.

    ¶8       In sum, Attorney Dahle does not contest, the referee

concluded,    and     we     agree     that       Attorney       Dahle         committed           the

following ethical violations:

            seven violations of SCR 20:1.3 (failure to act with

             reasonable diligence and promptness);

            ten violations of SCR 20:1.4(a)(3) and (4) (failure to

             keep the client reasonably informed and comply with

             requests for information);

            one     violation       of       SCR     20:1.5(a)              (collecting           an

             unreasonable fee);

            one violation of SCR 20:1.5(b)(1) and (2) (failure to

             have a written fee agreement);

            two     violations      of      SCR 20:1.8(a)          (entering               into    a

             business      transaction         with    a    client            without        proper

             prior    disclosure       and        consent   of     terms        and        lawyer's

             role in transaction);
            11    violations     of    various       SCR     20:1.15          trust        account

             rules (failure to promptly deliver funds to which a

             client     or     third      party       is     entitled               to     receive;

             disbursing funds from trust account before the deposit

             from     which    those      funds       are     to        be     disbursed           has

             cleared; failure to provide written notice to client

             at least five days prior to disbursing funds in trust

             for     payment    of     fees;        failure        to        provide        written
             accounting to client upon final distribution of trust
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               property; and disbursing funds from trust account via

               telephone transfer);

              seven violations of SCR 20:1.16(d) (failure to notify

               clients of termination of representation and return

               client files and other property);

              one violation of SCR 20:3.4(c) (knowingly disobeying

               an order of a tribunal);

              three    violations           of       SCR        20:8.4(c)      (engaging         in

               dishonesty, fraud, deceit, or misrepresentation); and

              12 violations of SCR 22.03(2) and (6), enforced via

               SCR 20:8.4(h) (failure to promptly and fully cooperate

               with an OLR investigation).

    ¶9         The    OLR    sought    a     three-year           suspension         of   Attorney

Dahle's license to practice law in Wisconsin.                                  Attorney Dahle

asked that her law license be suspended "for no more than one

year,"    noting that her law license has been suspended since

April 24, 2012.         She suggests there was some delay by the OLR in

prosecuting       the       matter.        She       asked       that    her    suspension        be
imposed       retroactive       to     the    date          of    her    temporary        license

suspension.

    ¶10        The    referee    stated       and      considered         the    factors         that

must be evaluated when considering discipline, noting that the

"seriousness,         nature     and    extent         of        the    misconduct        here    is

nothing       short    of    breathtaking."             The        referee      observed     that

misappropriation or conversion of client funds is one of the

most serious acts of lawyer misconduct because it violates the
fundamental       principle       of    the       lawyer-client            relationship          and
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places       the    lawyer's      pecuniary         interest          above        the       client's

interest.          Misappropriation of client funds frequently warrants

revocation.          See In re Disciplinary Proceedings Against Bult,

142 Wis. 2d 885, 890, 419 N.W. 2d 246 (1988).                                          Indeed, the

referee considered whether Attorney Dahle's license should be

revoked, but was mindful that license revocation is not always

appropriate for misappropriation or conversion of client funds.

Id. at 890-91.

       ¶11    Ultimately,         the    referee          considered          the        mitigating

facts of Attorney Dahle's lack of previous misconduct and her

eventual       cooperation        with       the     OLR     and        determined           that    a

suspension of two years and six months was sufficient discipline

for    the     misconduct         committed        in      this       case.            See    In     re

Disciplinary          Proceedings            Against        Cooper,           2007           WI     37,

300 Wis. 2d 61, 729 N.W.2d 206;                     In re       Disciplinary Proceeding

Against Tully, 2005 WI 100, 283 Wis. 2d 124, 699 N.W. 2d 882.

The    referee       rejected      Attorney         Dahle's       request          to     make      her

suspension         retroactive     to    the       date    of     her       temporary         license
suspension,          observing,         correctly,          that           any         "delay"       in

prosecuting         this    matter      is    likely       due        to    Attorney          Dahle's

initial       failure       to    cooperate         with        the        OLR's       efforts      to

investigate the many grievances filed against her.

       ¶12    The undisputed facts show a clear pattern of neglect

by    Attorney      Dahle    of    her   clients'          needs       and       objectives         and

disregard of her obligations as an attorney.                                We agree with the

referee's      observation        that       the   recommended             suspension         of    two
years and six months both recognizes Attorney Dahle's eventual
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full    cooperation         with    the   disciplinary        process      and     does      not

unduly        depreciate         the      seriousness         of    her         professional

misconduct.

       ¶13     We further agree that full costs shall be imposed on

Attorney Dahle.            Attorney Dahle has not alleged any factors that

would justify a reduction in costs.

       ¶14     We now consider the question of restitution.                            First,

the OLR has advised the court that no restitution is warranted

in a number of the client matters implicated in this proceeding

and    we     accept    that     assessment.         The    parties    agreed       and    the

referee recommended that Attorney Dahle should be ordered to

comply      with     any    final      monetary     order    or    judgment       issued     in

Jane C. Kelley v. Tina M. Dahle, et al., United States District

Court, Eastern District of Wisconsin, Case No. 11-CV-600.                                     We

agree with this recommendation as well.

       ¶15     The OLR declined to seek restitution in the matter of

J.P., who loaned Attorney Dahle money that she failed to repay.

J.P. obtained a judgment of $116,684.02 against Attorney Dahle
in Brown County Circuit Court Case No. 11-CV-1237, but Attorney

Dahle       then    filed    for     bankruptcy       and     identified        J.P.    as    a

creditor.          The record before the court indicates that the client

did     not     avail      himself      of    the    procedures       for        challenging

discharge under federal law and this debt was discharged.                                    The

referee       declined      to     make   a   formal        recommendation         regarding

restitution to J.P. but observed that "[e]very lender assumes

the risk that a loan may not be repaid, and/or that the loan
obligation may be discharged in bankruptcy."                          We accede to the
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parties' assertion that no restitution order should issue with

respect to this client matter.

       ¶16   We next consider whether Attorney Dahle's bankruptcy

should   preclude    this    court   from     ordering   restitution     to     two

other former clients.         During proceedings before the referee,

the    OLR   requested   that      Attorney    Dahle     be   ordered    to    pay

$7,007.72 in restitution to L.G. and $4,911.51 in restitution to

J.B.

       ¶17   Shortly before the referee filed his report, Attorney

Dahle objected to restitution in these client matters, stating

that she had identified these individuals as creditors in her

Chapter 7 bankruptcy proceeding, that neither filed an adversary

proceeding or a claim in her bankruptcy proceeding, and that the

debts were discharged.

       ¶18   The   referee   was   not   persuaded.       The    referee      found

that, unlike the matter of J.P., the funds Attorney Dahle had in

her possession relating to L.G. and J.B. "consisted strictly of

trust account property belonging to others" and recommended that
the court order Attorney Dahle to pay restitution to L.G. and

J.B.

       ¶19   Neither party appealed the referee's report.               However,

after the referee filed his report, the OLR provided the court

with a restitution statement, as is standard practice.                   The OLR

advised the court that it no longer seeks restitution for L.G.

and J.B. based on the fact that these clients were listed and

noticed as creditors in Attorney Dahle's bankruptcy proceeding.
The OLR states:
                                         8
                                                                    No.     2013AP1137-D


      Such   information   . . .  brings   the   circumstances
      outside of one of the OLR restitution criteria
      factors.   That factor is that Attorney Dahle's rights
      in   a    collateral   proceeding   (e.g.,    a   future
      reinstatement proceeding) will likely be prejudiced if
      restitution is ordered to be paid to [these clients]
      when federal bankruptcy law eradicates the underlying
      debt and Attorney Dahle's obligation to pay it.1
The   OLR     recognized     that     "assessing      this   issue        delves    into

federal preemption issues not previously specifically addressed

in    prior     Wisconsin       attorney       discipline      or     reinstatement

proceedings."          The   OLR     acknowledges     the    considerations             and

rationale discussed by the referee in recommending restitution,

in which the referee questioned Attorney Dahle's "attempt to get

out of repaying [her clients] by discharging these debts in

bankruptcy."          Nevertheless,      the    OLR   explains       that,     "to       be

consistent      with    OLR's      existing     restitution     criteria,          OLR's

Director determined to discontinue its restitution request."

      ¶20     The    question    is    whether    a   lawyer       can    trump     this

court's     ability    to    order     restitution     in    the     context       of    a

disciplinary proceeding by filing bankruptcy when the lawyer's

misconduct involved conversion of client funds.                     Attorney Dahle

asserted      this     position       quite    late    in    this         disciplinary

proceeding so the issues were not fully developed.                        The dilemma


      1
       The OLR's policy is to seek restitution only under the
following   circumstances:      (1)   there  is   a   reasonably
ascertainable amount; (2) the funds to be restored were in the
respondent lawyer's direct control; (3) the funds to be restored
do not constitute incidental or consequential damages; and
(4) the grievant's or respondent's rights in a collateral
proceeding will not likely be prejudiced.



                                           9
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identified by the OLR raises questions:               (1) whether imposition

of the disputed restitution in this lawyer disciplinary matter

is consistent with state and federal law where, as here, the

underlying subject of the restitution has been discharged in

bankruptcy;    and    (2)   whether   such    a   restitution        order   is   a

permissible rehabilitative condition of any future reinstatement

proceeding.

    ¶21     In view of these unresolved questions, we will not

order Attorney Dahle to pay restitution to L.G. and J.B. at this

time.     However, prior to any reinstatement of Attorney Dahle's

Wisconsin     law    license,    we   will    revisit    the     issue.         See

SCR 22.29(4m) (any attorney petitioning for reinstatement from a

disciplinary suspension of six months or more is required to

allege and demonstrate that the attorney "has made restitution

to or settled all claims of persons injured or harmed by [the

attorney's]     misconduct . . . or,         if   not,    the        [attorney's]

explanation of the failure or inability to do so").

    ¶22     IT IS ORDERED that the license of Tina M. Dahle to
practice law in Wisconsin is suspended for a period of two years

and six months, effective the date of this order.

    ¶23     IT IS FURTHER ORDERED that Tina M. Dahle shall pay

restitution to Jane Kelley consistent with any final monetary

order or judgment issued in Jane C. Kelley v. Tina M. Dahle,

et al.,     United   States     District     Court,    Eastern       District     of

Wisconsin, Case No. 11-CV-600.




                                      10
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    ¶24   IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tina M. Dahle shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

    ¶25   IT IS FURTHER ORDERED that the restitution to Jane

Kelley specified above is to be completed prior to paying costs

to the Office of Lawyer Regulation.

    ¶26   IT    IS   FURTHER   ORDERED    that,   as     a     condition    of

reinstatement   of   her   license   to   practice     law    in   Wisconsin,

Tina M. Dahle will be required to demonstrate to this court the

legal and/or factual basis to justify any failure to reimburse

L.G. and J.B. for unearned client fees or funds that she held in

trust for them.

    ¶27   IT IS FURTHER ORDERED that, to the extent she has not

already done so, Tina M. Dahle 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.

    ¶28   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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