Office of Lawyer Regulation v. Voss (In re Voss)

• Citation: 365 Wis.2d 442,871 N.W.2d 859
• Decision Date: 08 December 2015
• Docket Number: No. 2014AP2086–D.,2014AP2086–D.
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Richard W. VOSS, Attorney at Law. Office of Lawyer Regulation, Complainant, v. Richard W. Voss, Respondent.
• Court: Wisconsin Supreme Court

365 Wis.2d 442

871 N.W.2d 859

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Richard W. VOSS, Attorney at Law.

Office of Lawyer Regulation, Complainant,

v.Richard W. Voss, Respondent.

No. 2014AP2086–D.

Supreme Court of Wisconsin.

Decided Dec. 8, 2015.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶ 1 We review a stipulation filed by Richard W. Voss and the Office of Lawyer Regulation (OLR), pursuant to Supreme Court Rule (SCR) 22.12,¹ which sets forth findings of fact and conclusions of law regarding Attorney Voss's six counts of professional misconduct. Attorney Voss is already under suspension pursuant to the 18–month suspension ordered in In re Disciplinary Proceedings Against Voss, 2014 WI 75, 356 Wis.2d 382, 850 N.W.2d 190, which runs until February 22, 2016.

¶ 2 The parties' stipulation did not contain an agreement regarding the appropriate level of discipline to be imposed. The parties agreed to brief the issue of sanctions before the referee, James R. Erickson.

¶ 3 The referee accepted the stipulation and found, based on the stipulation, that the stipulated facts supported a conclusion of misconduct on all six counts. The referee recommended that the court suspend Attorney Voss for a 60–day period, consecutive to the 18–month suspension Attorney Voss is currently serving. The referee also recommended that the court assess the OLR's full costs against Attorney Voss, which total $2,801.98 as of July 30, 2015.

¶ 4 Because no appeal has been filed from the referee's report and recommendation, we review the matter pursuant to SCR 22.17(2).² We adopt the findings of fact and conclusions of law to which the parties have stipulated and as adopted by the referee. We agree that the seriousness of Attorney Voss's misconduct warrants a 60–day suspension of his license to practice law, consecutive to the 18–month suspension he is currently serving, together with costs.

¶ 5 Attorney Voss was admitted to the practice of law in Wisconsin in 1976.

¶ 6 Attorney Voss has been disciplined previously for misconduct. In 2004, Attorney Voss was privately reprimanded for failing to provide competent representation and failing to keep a client reasonably informed. Private Reprimand No. 2004–24.³ In 2006, Attorney Voss received a public reprimand for various trust account violations. Public Reprimand of Richard W. Voss, 2006–7. In 2014, Attorney Voss received an 18–month suspension for his conduct as the court-appointed guardian of the person and estate of an individual suffering from mental illness. This court determined that Attorney Voss committed 11 counts of misconduct by, among other things, converting at least $48,791.73 of his client's funds either for his own use or to cover expenditures for other client matters, committing various trust account violations, and making misrepresentations to the circuit court regarding his client's assets. Voss, 356 Wis.2d 382, 850 N.W.2d 190.

¶ 7 This disciplinary matter involves six counts of misconduct, four of which concern Attorney Voss's work in bankruptcy matters, and two of which concern Attorney Voss's trust account practices. We take the following facts from the parties' stipulation.

¶ 8 Attorney Voss was hired to file bankruptcies for his clients, J.M. and L.R. In both cases, before doing any work, Attorney Voss had the client pay approximately $500 in attorney fees and approximately $300 in filing fees. Attorney Voss placed these funds into his client trust account. It is undisputed that while the funds remained in trust, they remained an asset of the client.

¶ 9 Attorney Voss, or his staff under his direction, told J.M. and L.R. that the firm would file a fee waiver application with the appropriate United States Bankruptcy Court. Attorney Voss's office would prepare the fee waiver application, along with the bankruptcy petition. When drafting these documents, Attorney Voss failed to disclose to the bankruptcy court that the filing fee had already been paid by the client and that Attorney Voss was holding the funds in trust.

¶ 10 Attorney Voss, or his staff under his direction, had J.M. and L.R. sign the bankruptcy documents under penalty of perjury. In signing the bankruptcy documents, J.M. and L.R. verified that the documents were accurate, including a statement that they could not afford to pay the filing fee, and including an asset disclosure that did not disclose the filing fee payments held in Attorney Voss's firm's trust account.

¶ 11 In the J.M. bankruptcy case, the bankruptcy court denied the filing fee waiver application on September 25, 2013. The court ordered that J.M. pay the filing fee in installments beginning on October 25, 2013. Neither Attorney Voss nor his staff contacted J.M. to let her know of the denial of her filing fee waiver application. J.M. first learned that the bankruptcy court had denied her waiver application and that her filing fee remained unpaid at the meeting of creditors on October 17, 2013. J.M. was upset upon learning this information because she had paid the filing fee to Attorney Voss months earlier and had not been told of the denial of her filing fee waiver application.

¶ 12 On October 25, 2013—the date the first installment of J.M.'s filing fee was due—Attorney Voss's secretary paid the filing fee in full. Before this date, Attorney Voss's secretary had experienced difficulties determining from the bankruptcy court's website how much was owed as a filing fee and how to pay it. Because Attorney Voss's secretary did not inform him of her difficulties in paying the filing fee, Attorney Voss was unaware of the problems until he received a letter from the OLR about the matter.

¶ 13 In the L.R. bankruptcy case, the bankruptcy court approved L.R.'s filing fee waiver application. When Attorney Voss received the notice of the approval, he refunded to L.R. the filing fee which was held in trust.

¶ 14 Attorney Voss has submitted filing fee waiver applications for bankruptcy clients other than J.M. and L.R. after having collected filing fees from those other clients. In all of those cases, the filing fee held in trust was not disclosed as an asset of the debtor in the bankruptcy documents. If the bankruptcy court waived the filing fee, Attorney Voss's office returned the filing fee to the clients. If the bankruptcy court did not waive the filing fees, Attorney Voss's office paid the filing fee to the bankruptcy court.

¶ 15 The remaining conduct at issue concerns Attorney Voss's continued inability or unwillingness to comply with the trust account rules. Since at least 1986, Attorney Voss has used a particular bank account at M & I Bank (n/k/a BMO Harris Bank) as his client trust account. Attorney Voss has designated this account as his client trust account. However, the account is not an Interest on Lawyer Trust Accounts (IOLTA) account and does not accrue interest to be paid to the Wisconsin Trust Account Foundation, Inc.¶ 16 Attorney Voss has long been on notice that he must rectify his handling of trust account funds. In 2006, Attorney Voss received a public reprimand for misconduct that, in part, related to his failure to maintain accurate records of his trust account activity and his failure to maintain an IOLTA trust account. In 2012, the OLR filed a disciplinary complaint seeking to discipline Attorney Voss for misconduct that included his failure to maintain an IOLTA trust account; this complaint culminated in the 18–month suspension which Attorney Voss is currently serving. Attorney Voss continued, throughout these prior matters, and throughout the OLR's investigation of the present matter, to use the non-IOLTA account at M & I Bank (n/k/a BMO Harris Bank) as his client trust account.

¶ 17 In late 2013, the OLR requested a copy of Attorney Voss's trust account transaction register for the period of time in which he was holding J.M.'s filing fee in trust. Attorney Voss provided to the OLR a list of deposits and a separate list of disbursements, which did not separately or collectively meet the requirements for compliant trust account documents.

¶ 18 On the basis of these facts, the parties stipulated, and the referee concluded, that Attorney Voss committed the following acts of misconduct:

• Count One: By filing or causing his staff to file applications for filing fee waivers with the United States Bankruptcy Courts on behalf of clients that failed to disclose the amounts being held by Attorney Voss on behalf of the clients for payment of their filing fees, and thereby failing to comply with applicable Federal Rules of Bankruptcy Procedure, Attorney Voss violated SCR 20:3.4(c).⁴

• Count Two: By filing or causing his staff to file on behalf of clients applications for filing fee waivers with United States Bankruptcy Courts that failed to disclose the funds being held in trust by Attorney Voss on behalf of the clients for payment of their filing fees, Attorney Voss violated SCR 20:8.4(c).⁵

• Count Three: By failing to adequately supervise his staff so as to ensure that documents prepared and filed by his staff on behalf of clients conformed in all respects with applicable law and court rules and were in all respects accurate, Attorney Voss violated SCR 20:5.3(a) and (b).⁶

• Count Four: By failing to take reasonable steps to ensure his staff timely informed him and/or clients of case developments, including the payment status of filing fees, Attorney Voss violated SCR 20:5.3(a) and (b).

• Count Five: By (i) failing to maintain a pooled interest bearing account; (ii) failing to participate in the Interest on Trust Accounts Program; and (iii) depositing client and third party funds that are nominal in amount and/or intended to be held for a short period of time in a non-interest-bearing account, Attorney Voss violated SCR 13.04⁷ and SCR 20:1.15(c)(1).⁸

• Count Six: By failing to provide the OLR with a copy of his trust account transaction register for the period requested of him by the OLR, Attorney Voss violated SCR 20:1.15(e)(7

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