                                                              2016 WI 85

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2016AP358-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Michael F. Bishop, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Michael F. Bishop,
                                  Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST BISHOP

OPINION FILED:          October 18, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                           2016 WI 85
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.        2016AP358-D


STATE OF WISCONSIN                               :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Michael F. Bishop, Attorney at Law:


Office of Lawyer Regulation,                                            FILED
               Complainant,                                        OCT 18, 2016
       v.                                                             Diane M. Fremgen
                                                                   Clerk of Supreme Court
Michael F. Bishop,

               Respondent.




       ATTORNEY     disciplinary        proceeding.         Attorney's          license

suspended.


       ¶1      PER CURIAM.      We review a stipulation filed pursuant

to    Supreme    Court   Rule   (SCR)   22.121       by   the   Office     of    Lawyer


       1
           SCR 22.12 provides as follows:        Stipulation.

            (1) The director may file with the complaint a
       stipulation of the director and the respondent to the
       facts, conclusions of law regarding misconduct, and
       discipline to be imposed. The supreme court may
       consider the complaint and stipulation without the
       appointment of a referee, in which case the supreme
                                                      (continued)
                                                             No.    2016AP358-D



Regulation    (OLR)   and   Attorney       Michael   F.   Bishop.     In   the

stipulation, Attorney Bishop admits the misconduct alleged by

the OLR and agrees to a 60-day suspension of his Wisconsin law

license.

     ¶2      We adopt the stipulated facts and conclusions of law.

We   agree    that    Attorney   Bishop's       misconduct    warrants     the

suspension of his Wisconsin law license for a period of 60 days.

The OLR does not seek either restitution or the costs of this

proceeding and we decline to impose either upon him.


     court   may  approve   the   stipulation,  reject the
     stipulation, or direct the parties to consider
     specific modifications to the stipulation.

          (2) If the supreme court approves a stipulation,
     it shall adopt the stipulated facts and conclusions of
     law and impose the stipulated discipline.

          (3) If the supreme court rejects a stipulation, a
     referee shall be appointed and the matter shall
     proceed as a complaint filed without a stipulation.

          (3m) If the supreme court directs the parties to
     consider specific modifications to the stipulation,
     the parties may, within 20 days of the date of the
     order, file a revised stipulation, in which case the
     supreme court may approve the revised stipulation,
     adopt the stipulated facts and conclusions of law, and
     impose the stipulated discipline. If the parties do
     not file a revised stipulation within 20 days of the
     date of the order, a referee shall be appointed and
     the matter shall proceed as a complaint filed without
     a stipulation.

          (4) A stipulation rejected by the supreme court
     has no evidentiary value and is without prejudice to
     the respondent's defense of the proceeding or the
     prosecution of the complaint.


                                       2
                                                                           No.    2016AP358-D



       ¶3     Attorney      Bishop      was       admitted    to    practice        law    in

Wisconsin in 1993.            He practices in Milwaukee, Wisconsin. In

2014, Attorney Bishop received a consensual public reprimand for

several trust account violations.                    Public Reprimand of Michael

F.      Bishop,        2014-2        (electronic             copy      available           at

https://compendium.wicourts.gov/app/raw/002658.html).

       ¶4     The matter presently before the court also involves

trust account violations, coupled with a failure to cooperate

with the OLR.

       ¶5     Between 2012 and 2014, Attorney Bishop maintained a

client trust account at BMO Harris Bank (BMO).                             On August 19,

2013, OLR sent Attorney Bishop a letter, informing him that it

had received notice of an overdraft on his client trust account.

The OLR directed Attorney Bishop to provide a written response

within 20 days of his receipt of the letter, and to provide

copies of his trust account's bank statements for May 2013 and

June 2013, a copy of his transaction register for May 2013 and

June    2013,    and   a    copy   of    his      client     ledger    relating       to   an
alleged $50 withdrawal.              Attorney Bishop did not respond.                      He

also failed to respond to two subsequent notices from the OLR.

       ¶6     On January 10, 2014, OLR filed a motion asking this

court    to    issue   an    order      to    show    cause    as     to    why     Attorney

Bishop's law license should not be suspended for his willful

failure to cooperate in the OLR investigation concerning his

conduct.      This court issued the requested order.                       By January 22,

2014,       Attorney   Bishop      had        provided       the    OLR      with    enough


                                              3
                                                                       No.       2016AP358-D



information to allow the OLR to continue its investigation, so

the OLR withdrew its motion and the investigation continued.

       ¶7     By letter dated February 26, 2014, the OLR directed

Attorney      Bishop   to    inform       the     OLR   whether   he    had      opened   a

business account subsequent to September 1, 2012, but Attorney

Bishop failed to respond.

       ¶8     On May 28, 2014, the OLR sent Attorney Bishop a second

letter requesting the same information.                      This time, Attorney

Bishop responded by email, stating "I have not had a business

account since 2012 ..."

       ¶9     During its investigation, the OLR discovered that in a

Waukesha County case in which Attorney Bishop represented the

defendant, the court ordered the return of $3,000 from the bail

deposit to be paid to Attorney Bishop.                        The Waukesha County

Clerk of Courts paid the $3,000 to Attorney Bishop and Attorney

Bishop deposited the check directly into his BMO trust account,

describing the deposit as a "$3,000.00 deposit for monies past

due."        These   funds       should    have     been   placed      in    a    business
account.

       ¶10    On August 17, 2015, Attorney Bishop advised the OLR

that    a    chargeback     on    his     trust    account   had    resulted         in   an

overdraft.      In response, the OLR requested certain trust account

records, including bank statements, a transaction register, and

client ledgers.        Attorney Bishop provided some information, but

did not submit a transaction register or client ledgers for his

trust account.         The OLR investigation revealed that Attorney
Bishop made numerous cash withdrawals from his trust account.
                                             4
                                                           No.   2016AP358-D



    ¶11    On   February   22,   2016,   OLR   filed   a     disciplinary

complaint in this matter, as amended on July 1, 2016.              The OLR

complaint alleged the following seven counts of misconduct:

    Count   1:   By  failing   to   cooperate  with  OLR's
    investigation of a May 20, 2013 overdraft on his trust
    account by failing to respond to OLR's letters of
    August 19, 2013, September 23, 2013 and December 3,
    2013, and by failing to respond to OLR's letter of
    February 26, 2014, Bishop violated SCR 22.03(2) and
    (6),2 as enforced via SCR 20:8.4(h).3



    2
        SCR 22.03(2) and (6) provides as follows:

         (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) provides as follows:  In the course of the
    investigation, the respondents willful 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.
    3
       SCR 20:8.4(h) provides as follows:   "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)."


                                   5
                                                     No.    2016AP358-D


    Count 2: By failing to maintain a business account
    from 2012 through at least May of 2014, despite the
    fact that he had a trust account during that time,
    Bishop violated SCR 20:1.15(e)(8).4

    Count 3: By depositing into and retaining in his Trust
    Account at least $3,000 in earned fees, Bishop
    violated SCR 20:1.15(b)(3).5

    Count 4: By making at least 199 cash withdrawals from
    his trust account between May 2, 2013 and July 1,
    2015,   totaling  $50,097.82,  Bishop  violated   SCR
    20:1.15(e)(4)a.6

    Count 5: By failing to maintain a transaction register
    and client ledgers and failing to comply with record
    keeping    requirements,    Bishop     violated    SCR
                              7
    20:1.15(f)(l)a, b. and g.

    4
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."      See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

     SCR 20:1.15(e)(8) provides as follows:    "Each lawyer who
receives trust funds shall maintain at least one draft account,
other than the trust account, for funds received and disbursed
other than in the lawyer's trust capacity, which shall be
entitled   'Business  Account,'   'Office Account,'  'Operating
Account,' or words of similar import."
    5
       SCR 20:1.15(b)(3) provides as follows:    "No funds
belonging to the lawyer or law firm except funds reasonably
sufficient to pay monthly account service charges, may be
deposited or retained in a trust account."
    6
       SCR 20:1.15(e)(4)a provides as follows: "No disbursement
of cash shall be made from a trust account, or from a deposit to
a trust account, and no check shall be made payable to 'cash.'"
    7
        SCR 20:1.15(f)(l)a., b., and g., provides as follows:

         (f) Record-keeping     requirements   for   all    trust
    accounts.

                                                           (continued)
                                 6
                                                    No.   2016AP358-D




     (1) Draft accounts. Complete records of a trust
account that is a draft account shall include a
transaction register; individual client ledgers for
IOLTA accounts and other pooled trust accounts; a
ledger for account fees and charges, if law firm funds
are held in the account pursuant to sub. (b)(3);
deposit   records;   disbursement   records;   monthly
statements; and reconciliation reports, subject to all
of the following:

     a. Transaction register. The transaction register
shall contain a chronological record of all account
transactions, and shall include all of the following:

    1. the date, source, and amount of all deposits;

     2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;

     3. the date and amount of every other deposit or
deduction of whatever nature;

     4. the identity of the client for whom funds were
deposited or disbursed; and

     5. the    balance   in       the   account   after   each
transaction.

     b. Individual client ledgers. A subsidiary ledger
shall be maintained for each client or 3rd party for
whom the lawyer receives trust funds that are
deposited in an IOLTA account or any other pooled
trust account.   The lawyer shall record each receipt
and disbursement of a client's or 3rd party's funds
and the balance following each transaction. A lawyer
shall not disburse funds from an IOLTA or any pooled
trust account that would create a negative balance
with respect to any individual client or matter.

     . . .

     g.    Reconciliation   reports.   For each   trust
account, the lawyer shall prepare and retain a printed
reconciliation report on a regular and periodic basis
not   less   frequently   than   every  30 days.   Each
                                                 (continued)
                              7
                                                 No.   2016AP358-D


    Count 6: By making 11 cash withdrawals from his trust
    account, totaling $2,025.00, between August 4, 2015
    and   August     28,  2015,   Bishop   violated   SCR
    20:1.15(e)(4)a.8

    Count 7: By failing to produce a transaction register
    and client ledgers for his trust account, Bishop
    violated SCR 20:1.15(e)(7).9

    reconciliation report shall show all of the following
    balances and verify that they are identical:

         1. The balance that appears in the transaction
    register as of the reporting date;

         2. the total of all subsidiary ledger balances
    for IOLTA accounts and other pooled trust accounts,
    determined by listing and totaling the balances in the
    individual client ledgers and the ledger for account
    fees and charges, as of the reporting date; and

         3. the adjusted balance, determined by adding
    outstanding deposits and other credits to the balance
    in the financial institution's monthly statement and
    subtracting outstanding checks and other deductions
    from the balance in the monthly statement.
    8
       SCR 20:1.15(e)(4)a provides: "No disbursement of cash
shall be made from a trust account or from a deposit to a trust
account, and no check shall be made payable to 'Cash.'"
    9
        SCR 20:1.15(e)(7) provides:

         (7) All trust account records have public aspects
    related to a lawyer's fitness to practice. Upon
    request of the office of lawyer regulation, or upon
    direction of the supreme court, the records shall be
    submitted to the office of lawyer regulation for its
    inspection, audit, use, and evidence under any
    conditions to protect the privilege of clients that
    the court may provide.    The records, or an audit of
    file records, shall be produced at any disciplinary
    proceeding involving the lawyer, whenever material.
    Failure    to   produce    the   records   constitutes
    unprofessional conduct and grounds for disciplinary
    action.


                                 8
                                                                              No.    2016AP358-D



      ¶12     In August 2016, the OLR and Attorney Bishop executed

the     stipulation          now     before      the       court.        In     addition       to

stipulating       to    the        facts    as    set      forth     above,     the    parties

stipulated to discipline in the form of a 60-day suspension of

Attorney Bishop's Wisconsin law license.

      ¶13     The stipulation provides that it is not the result of

a plea bargain.              Attorney Bishop also verifies that he fully

understands the allegations of misconduct, the ramifications if

this court should impose the stipulated level of discipline, his

right    to   contest        the    matter,       and      his   right   to    consult      with

counsel.         He     further          verifies       that       his   entry       into     the

stipulation      was     made       knowingly        and    voluntarily,       and     that    it

represents his admission of all misconduct and his assent to the

level and type of discipline sought by the OLR director.

      ¶14     The      OLR     filed       a     memorandum         in   support       of     the

stipulation.           The    memorandum         discusses         attorney     disciplinary

cases     that      resulted        in     60-day       suspensions      for        misconduct,

including In re Disciplinary Proceedings Against Grogan, 2011 WI
7, 331 Wis. 2d 341, 795 N.W.2d 745.                         Attorney Grogan received a

60-day suspension for misconduct that is virtually identical to

the   facts      alleged       in    the       complaint         filed   against      Attorney

Bishop.       Attorney Grogan failed to maintain a business account;

commingled funds; made cash withdrawals from the trust account

and failed to maintain certain trust account records.                                  Attorney

Grogan also failed to cooperate with the OLR's investigations.

In addition, Attorney Grogan, like Attorney Bishop, had a prior
public reprimand.             It also bears noting that the court imposed
                                                 9
                                                                              No.    2016AP358-D



several      conditions         on   Attorney       Grogan,       one    of    which     was      a

requirement        that     he       provide        the     OLR    with       "documentation

establishing that [he] has a business account."                           Id. at 349.

       ¶15    We adopt the stipulation and the stipulated facts and

conclusions of law, and we impose the stipulated discipline.                                     We

agree    that      the    seriousness      of        Attorney      Bishop's          misconduct

warrants the suspension of his Wisconsin law license for 60

days.     The OLR does not seek restitution, so we impose none.

The    OLR    also       does    not   seek     costs,       and,       mindful      that    the

stipulation obviates the need for a referee, we do not impose

costs.

       ¶16    In   its     complaint,      the       OLR     recommended         that,      as   a

condition of his reinstatement, Attorney Bishop provide the OLR

with     documentation          establishing         that     he    has       established         a

separate      business      account.           The        stipulation      and       supportive

memorandum      do    not       address   this        condition,        but     we    deem       it

appropriate to impose this requirement to better ensure Attorney

Bishop's prospective compliance with the trust account rules.
       ¶17    IT IS ORDERED that the license of Michael F. Bishop to

practice law in Wisconsin is suspended for a period of 60 days,

effective November 28, 2016.

       ¶18    IT IS FURTHER ORDERED that Michael F. Bishop 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.

       ¶19    IT IS FURTHER ORDERED that, as a condition of his
reinstatement, and no later than two weeks prior to the date he
                                               10
                                                             No.   2016AP358-D



is eligible for reinstatement, Michael F. Bishop shall provide

the OLR with written notice and evidence that he has established

a business account.

    ¶20   IT      IS   FURTHER    ORDERED   that    compliance     with   all

conditions   of    this   order   is   required    for   reinstatement.   See

SCR 22.28(2).

    ¶21   IT IS FURTHER ORDERED that no costs will be imposed in

this matter.




                                       11
    No.   2016AP358-D




1
