Constant v. Constant
| Decision Date | 23 November 2022 |
| Docket Number | 2021AP33-D |
| Citation | 2022 WI 78 |
| Parties | In the Matter of Disciplinary proceedings Against Terry L. constant, Attorney at Law: v. Terry L. constant, Respondent. office of Lawyer Regulation, complainant, |
| Court | Wisconsin Supreme Court |
ATTORNEY disciplinary proceeding. Attorney's license revoked.
JUSTICES: ZIEGLER, C.J., filed a concurring opinion in which REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. NOT PARTICIPATING:
¶1 We review Referee Charles H. Barr's report recommending that the court declare Attorney Terry L. Constant in default and revoke his license to practice law in Wisconsin for 13 counts of professional misconduct. The referee also recommends that Attorney Constant make restitution to the Wisconsin Lawyers' Fund for Client protection (the Fund) and to certain clients and that Attorney Constant pay the full costs associated with this proceeding.
¶2 No appeal has been filed so we review the referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).[1] After careful review of the matter, we agree with the referee that, based on Attorney Constant's failure to answer the Office of Lawyer Regulation's (OLR) complaint or otherwise appear in the proceeding, Attorney Constant is in default. We conclude that revocation of Attorney Constant's license is an appropriate sanction for his professional misconduct. We agree that Attorney Constant should be required to make restitution to the Fund and certain clients. And finally, we conclude that he should be assessed the full costs of this proceeding, which total $4,135.06 as of June 20, 2022.
¶3 Attorney Constant was admitted to practice law in Wisconsin in 1968. His professional disciplinary history consists of a six-month suspension of his license to practice law in 2020. In re Disciplinary Proceedings Against Constant 2020 WI 4, 390 Wis.2d 1, 937 N.W.2d 599 (Constant I). That case involved nine counts of misconduct involving numerous trust account violations, conversion, co-mingling of funds, and mishandling a personal injury settlement. Id., ¶24.[2]
¶4 On January 7, 2021, the OLR filed a complaint against Attorney Constant alleging 13 counts of attorney misconduct relating to three clients, S.C., M.R., and S.R., between 2014 and 2020, along with an order to answer. Referee Charles H. Barr was appointed on March 22, 2021. On March 1, 2021, Attorney Constant filed a verified Petition to Voluntarily Surrender a Wisconsin License, in which he stated that he "cannot successfully defend" against the grievances pending against him and that he wished to surrender his license "permanently."[3]
¶5 The OLR made multiple failed attempts at personal service at Attorney Constant's Kenosha address on file with the State Bar of Wisconsin (State Bar). On March 9, 2021, the OLR sent the complaint by certified mail to that address, and tracking information indicated that it was delivered in Henderson, Nevada. The referee ultimately concluded that substitute service was accomplished on March 16, 2021, and Attorney Constant's answer was due April 5, 2021. Attorney Constant did not file an answer.
¶6 Attorney Constant failed to appear for a telephonic scheduling conference on April 22, 2021, at which time the OLR informed the referee that Attorney Constant's wife indicated a health issue prevented his attendance. Attorney Constant failed to appear for a subsequent scheduling conference, and the OLR again informed the referee that Attorney Constant's wife stated medical issues prevented his participation. The referee ordered Attorney Constant to execute medical releases so the OLR could determine if he had a medical incapacity that made defense of the proceeding impossible. See SCR 22.16(4)(a). Attorney Constant returned medical releases to the OLR. The OLR obtained some of Attorney Constant's medical records but ultimately advised the referee that the OLR could not reach a conclusion on whether Attorney Constant had a medical incapacity.
¶7 The OLR indicated its intent to file a motion for default and invited Attorney Constant to provide further information to support any claim of medical incapacity. Attorney Constant did not respond and did not assert a medical incapacity defense.
¶8 The OLR filed a motion for default on February 21, 2022, along with an affidavit showing proof of substitute service. On March 1, 2022, the referee issued an order concluding that "justice is best served by providing Respondent an additional and final opportunity to assert his incapacity claim as a matter of record in response to the motion for default." He therefore ordered that Attorney Constant had 30 days to file a response to the motion for default, "in which he may allege incapacity and any other reason why the motion should not be granted." No response was filed.
¶9 Following a hearing, the referee issued an order recommending that this court find Attorney Constant in default and that the factual allegations in the complaint be accepted as true. The order also concluded Attorney Constant had been properly served, recited several facts indicating that Attorney Constant had actual notice of the proceeding, and noted that he had been copied on notices of all hearings, orders, and correspondence. The referee also ordered the OLR to submit a brief as to the appropriate level of discipline and allowed Attorney Constant to do the same.
¶10 The OLR filed a brief advocating that that the referee recommend that this court should revoke Attorney Constant's license to practice law and that he be ordered to pay restitution. Attorney Constant did not file a response.
¶11 On May 31, 2022, the referee issued a report and recommendation with findings of fact and conclusions of law as to default and the underlying misconduct allegations. As to default, the referee found that the OLR unsuccessfully attempted personal service on Attorney Constant at his State Bar address in Kenosha on five different dates and thereafter mailed a certified copy of the complaint, which was ultimately delivered to an address in Henderson, Nevada. Attorney Constant filed a signed and notarized petition to voluntarily surrender his law license, in which he indicated his residence was a P.O. Box in Henderson, Nevada. Attorney Constant left a voicemail with the OLR's counsel early in the proceeding "in which Attorney Constant referred to service on him of documents in the proceeding." Attorney Constant's wife had multiple communications with counsel for the OLR acknowledging awareness of the proceeding and she provided a residential address in Henderson, Nevada, to the OLR. All of the referee's written communications with the OLR's counsel, as well as all notices and orders, were copied to Attorney Constant at the e-mail address on file for him with the State Bar, and none of them bounced back. The March 1, 2022 order allowing Attorney Constant to oppose the motion for default and assert a medical incapacity defense was mailed to the Henderson, Nevada address that Attorney Constant's wife provided, in addition to being mailed to the address in Kenosha and e-mailed. Counsel for the OLR also e-mailed a copy of the order to Attorney Constant's wife in response to an e-mail from her. The referee found that these facts constituted "substantial indicia of Attorney Constant's awareness of this proceeding throughout its pendency."
¶12 Based on these findings, the referee concluded that Attorney Constant was properly served with the complaint, failed to timely file an answer or otherwise appear in the proceeding, and therefore was in default. The referee further concluded that neither Attorney Constant nor anyone on his behalf claimed as a matter of record that he possessed a medical incapacity that made defense of the proceeding impossible. The referee further concluded that it was "implausible" that Attorney Constant could not have done so if he intended to pursue such a claim based on his filing of a petition to surrender his law license during the same time period. Accordingly, the referee recommended that this court find Attorney Constant in default.
¶13 Having concluded that Attorney Constant was in default for failing to answer, the referee adopted and accepted the salient factual allegations of the complaint. Those allegations are summarized as follows.
¶14 In 2011, SC hired Attorney Constant to represent her in a personal injury action after a January 2011 car accident (first accident). Attorney Constant settled the case and provided no further services relating to the matter after April 15, 2015, but retained $3,756.86 in his trust account. However, by April 10, 2016, his trust account held only $34.21 pertaining to the first accident.
¶15 On April 15, 2015, SC was involved in another car accident and hired Attorney Constant to represent her (second accident). Attorney Constant was entitled to one-third of any recovery, plus reimbursements of costs.
¶16 On January 31, 2018, Attorney Constant received a partial insurance payment for S.C.'s medical payments (medpay) claim in the second accident in the amount of $1,205.89. Attorney Constant deposited the check into his trust account on February 7, 2018, and disbursed $401.96 (one-third) of that amount to himself. The same day, he issued another check from the trust account to himself for $800, which indicated it was for legal fees relating to the first accident. The following day, he wrote another trust account check payable to himself for $700, again indicating it was for legal fees relating to the first accident. These withdrawals extinguished S.C.'s balance in Attorney Constant's trust account. In the next two months, Attorney Constant disbursed seven more checks from his trust account to...
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