Disciplinary Proceedings against Inglimo

• Decision Date: 18 October 2007
• Docket Number: No. 2005AP718-D.,2005AP718-D.
• Citation: 2007 WI 126,740 N.W.2d 125
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Michael R. INGLIMO, Attorney at Law: Office of Lawyer Regulation, Complainant-Appellant-Cross-Respondent, v. Michael R. Inglimo, Respondent-Respondent-Cross-Appellant.
• Court: Wisconsin Supreme Court

740 N.W.2d 125

2007 WI 126

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Michael R. INGLIMO, Attorney at Law:

Office of Lawyer Regulation, Complainant-Appellant-Cross-Respondent, v. Michael R. Inglimo, Respondent-Respondent-Cross-Appellant.

No. 2005AP718-D.

Supreme Court of Wisconsin.

Argued April 26, 2007.

Decided October 18, 2007.

For the complainant-appellant-cross-respondent, there were briefs filed by Matthew F. Anich, Ashland, and oral argument by Matthew F. Anich.

For the respondent-respondent-cross-appellant, there were briefs filed by Michael R. Inglimo, Superior, and oral argument by Michael R. Inglimo.

¶ 1 PER CURIAM.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

In this disciplinary proceeding, the referee concluded that the OLR had proven violations on 10 of the 15 counts contained in the complaint filed by the Office of Lawyer Regulation (OLR). Based on those violations, the referee recommended that Attorney Michael Inglimo's license to practice law in Wisconsin be suspended for 18 months. Both the OLR and Attorney Inglimo appeal from the referee's report and recommendation.

¶ 2 After independently reviewing the record, we determine that the facts as found by the referee demonstrate violations of the Rules of Professional Conduct for 14 of the 15 counts alleged by the OLR. We conclude that Attorney Inglimo's professional misconduct requires a three-year suspension of his license to practice law in this state. We agree with the referee's recommendation that Attorney Inglimo should be required to submit to random drug tests for a period of one year prior to the reinstatement of his license. Finally, we disagree with the referee's recommendation that the amount of the costs of this disciplinary proceeding to be paid by Attorney Inglimo should be reduced by one-fifteenth. We determine that Attorney Inglimo should be required to pay the full costs of this proceeding, which were $42,400.96 as of May 10, 2007.

¶ 3 After a lengthy period of investigation, on March 18, 2005, the OLR filed a 15-count complaint against Attorney Inglimo. Attorney Curry First was subsequently appointed as referee. After the parties conducted discovery, the OLR filed a motion for summary judgment. Ultimately, the referee granted summary judgment to the OLR on seven counts, granted summary judgment to Attorney Inglimo on one count and denied summary judgment to either party on seven counts. An evidentiary hearing was held on November 29, 2005. Both parties submitted post-hearing briefs, as well as proposed findings of fact and conclusions of law.

¶ 4 The referee submitted a lengthy report containing his findings of fact and conclusions of law, as well as his recommendations for discipline. The findings of fact and conclusions of law are summarized as briefly as possible below.

¶ 5 When reviewing the referee's report, we will affirm the referee's findings of fact unless they are clearly erroneous. See In re Disciplinary Proceedings Against Sosnay, 209 Wis.2d 241, 243, 562 N.W.2d 137 (1997). We review the referee's conclusions of law, however, on a de novo basis. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis.2d 662, 636 N.W.2d 718.

¶ 6 Attorney Inglimo was admitted to the practice of law in Wisconsin in September 1985. He practiced in the Superior area.

¶ 7 Counts 1 and 2 relate to Attorney Inglimo's representation of L.K. in a criminal case between April 2000 and January 2001. During this representation in October 2000, Attorney Inglimo had sexual relations with L.K.'s girlfriend in L.K.'s presence and with L.K. also engaging in sexual relations with his girlfriend during the sexual encounter. The referee further found, however, that there was no evidence that during the encounter there was any intimate physical contact between Attorney Inglimo and L.K.

¶ 8 Count 1 of the OLR's complaint alleged that by having sexual relations with L.K.'s girlfriend in L.K.'s presence and with L.K. participating in the encounter, Attorney Inglimo had violated SCR 20:1.8(k)(2).¹ Although the referee found that there had been a three-way sexual encounter involving L.K., his girlfriend and Attorney Inglimo, he concluded that there was no violation of SCR 20:1.8(k)(2) because there was no evidence that Attorney Inglimo and his client, L.K., had "sexual relations" as that term is defined in the rule. Specifically, there was no evidence that Attorney Inglimo and L.K. engaged in sexual intercourse or intentionally touched each other's intimate parts.

¶ 9 One of the conditions of bail in L.K.'s criminal case was that he could not use or possess any controlled substances. In addition, Wis. Stat. § 969.03(2) (1999-2000)² provided that "[a]s a condition of release in all cases, a person released under this section shall not commit any crime." Possession and use of marijuana were criminal acts in the State of Wisconsin. Wis. Stat. § 961.41(3g)(e). Beginning in 1998, Attorney Inglimo and L.K. regularly went out drinking at various taverns. In addition to drinking, Attorney Inglimo occasionally used marijuana with L.K. Specifically, in October 2000 while L.K. was out on bail, L.K. went to Attorney Inglimo's house, where the two of them used cocaine and smoked marijuana.

¶ 10 A couple of months later, a week or two before his criminal trial, L.K. returned to Attorney Inglimo's house to discuss the upcoming trial. L.K. testified that Attorney Inglimo was under the influence of drugs at the time, because his eyes were dilated, he could not focus, and he was "antsy." L.K. stated that he could tell when Attorney Inglimo had used drugs because he had previously used drugs with Attorney Inglimo on past occasions.

¶ 11 The referee found, based on L.K.'s testimony, that Attorney Inglimo had been high on drugs during L.K.'s trial, that Attorney Inglimo was not prepared, and that he had not represented L.K. adequately at the trial.

¶ 12 The referee concluded that this conduct by Attorney Inglimo constituted a violation of SCR 20:8.4(b).³ The referee acknowledged that using marijuana is a crime under Wisconsin law, but he did not believe that marijuana use, by itself, reflected adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects. He believed that the OLR had to prove a nexus between Attorney Inglimo's criminal act of marijuana use and his provision of legal services to L.K. With respect to Count 2, the referee concluded that the evidence showed that Attorney Inglimo had been high during L.K.'s criminal trial and that Attorney Inglimo's performance as an attorney had been affected thereby. He did not base his legal conclusion of a violation of SCR 20:8.4(b) on the fact that Attorney Inglimo, by using marijuana with L.K., had aided and abetted L.K. to violate a condition of his bail. The referee stated that Count 2 was drafted as alleging a criminal act of using drugs, rather than as alleging a criminal act of aiding and abetting L.K. to violate his bail condition.

¶ 13 Counts 3 through 6 relate to Attorney Inglimo's use of his client trust account and his failure to maintain proper trust account records. The referee's factual findings on these counts include that Attorney Inglimo wrote two checks out of his client trust account totaling $1,327 to purchase a car for himself. Attorney Inglimo claimed that these funds belonged to his mother, for whom he had previously handled a real estate matter, and that she gave the funds to him so that he could purchase the car. Based on the OLR's reconstruction of Attorney Inglimo's client trust account transactions, however, the referee found that Attorney Inglimo's trust account checks for the car had exceeded any trust account funds belonging to his mother by at least $150. Thus, Attorney Inglimo had drawn on funds belonging to other clients.

¶ 14 In addition, OLR's reconstruction demonstrated that as of December 31, 2001, several clients and Attorney Inglimo himself had negative balances in the trust account. Indeed, between January 1, 1999, and December 31, 2001, Attorney Inglimo used funds on deposit for clients with positive balances to cover at least $386.05 of disbursements for those with negative balances.

¶ 15 For many years Attorney Inglimo maintained personal funds in his client trust account to act as a "cushion" against overdrafts. Prior to May 2004, Attorney Inglimo kept no written records that would show what amounts of personal funds were in the client trust account. He made more than $1,500 in disbursements from his trust account for personal expenses when he had no way to determine whether he had sufficient personal funds in the trust account to cover those disbursements.

¶ 16 Attorney Inglimo also did not maintain subsidiary client ledgers for individual clients and did not keep a running balance of receipts, disbursements and the amount remaining in the trust account for each client. He did not record deposits in the trust account checkbook register and kept no other receipts journal showing the sources and dates of deposits. Attorney Inglimo did not keep a running balance for his trust account and did not perform monthly reconciliations between his trust account balance and the bank statements.

¶ 17 Despite his failure to keep the trust account records required by former SCR 20:1.15(e),⁴ Attorney Inglimo certified on his annual state bar dues statements for fiscal years 1999-2004 that he had complied with each of the trust account recordkeeping requirements. Each of these certifications was false.

¶ 18 Based on these factual findings, the referee concluded that Attorney Inglimo had violated former SCR 20:1.15(a)⁵ (Counts 3 and 4) by failing to hold in trust at least $386.05 in funds belonging to clients or third persons and by depositing and co-mingling his personal funds with client funds in his trust account. The referee also concluded that Attorney Inglimo had failed to keep the necessary...