Disciplinary Proceedings against Crandall, 2006AP2058-D.

• Decision Date: 04 March 2008
• Docket Number: No. 2006AP2058-D.,2006AP2058-D.
• Citation: 745 N.W.2d 679,2008 WI 14
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Eric L. CRANDALL, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Eric L. Crandall, Respondent.
• Court: Wisconsin Supreme Court

745 N.W.2d 679

2008 WI 14

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Eric L. CRANDALL, Attorney at Law:

Office of Lawyer Regulation, Complainant, v. Eric L. Crandall, Respondent.

No. 2006AP2058-D.

Supreme Court of Wisconsin.

March 4, 2008.

¶ 1 PER CURIAM.

We review the report and recommendation of the referee that Attorney Eric L. Crandall be publicly reprimanded for his professional misconduct, that he pay restitution to a client, and that he pay the full costs of this disciplinary proceeding, which were $3,321.81 as of October 5, 2007.

¶ 2 Attorney Crandall initially filed an answer that denied the substantive allegations of the complaint filed by the Office of Lawyer Regulation (OLR). He later stipulated, however, to the truthfulness of those factual allegations and to having committed each of the six counts of alleged professional misconduct. The stipulation he executed acceded to the OLR's request that the referee, Attorney Stanley F. Hack, recommend the imposition of a public reprimand and the payment of costs. The referee issued a report that essentially tracked the OLR's complaint and the parties' stipulation, except that the referee also recommended that Attorney Crandall make a restitution payment to his former clients.

[¶ 3] Attorney Crandall attempted to file an appeal from the referee's report and recommendation, but the court previously ruled that his appeal was untimely. Thus, the court's review proceeds under SCR 22.17(2).¹ In conducting our review, we uphold a referee's findings of fact unless they are shown to be clearly erroneous, but we review the referee's conclusions of law 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; In re Disciplinary Proceedings Against Sosnay, 209 Wis.2d 241, 243, 562 N.W.2d 137 (1997). Having established the proper factual and legal setting, we determine the appropriate level of discipline to be imposed under the circumstances, independent of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis.2d 45, 660 N.W.2d 686.

¶ 14 Attorney Crandall was admitted to the practice of law in Wisconsin in September 1991. He has been the subject of professional discipline on one prior occasion. In February 2006 his license to practice law in Wisconsin was suspended for three months as discipline reciprocal to that imposed by the Minnesota Supreme Court. In re Disciplinary Proceedings Against Crandall, 2006 WI 6, 287 Wis.2d 102, 708 N.W.2d 690. The conduct leading to that suspension involved neglecting client matters, failing to communicate with clients and to appear at their court proceedings, failing to comply with discovery rules, and failing to cooperate with the investigation conducted by Minnesota's Office of Lawyers Professional Responsibility.

¶ 5 The current disciplinary proceeding grows out of Attorney Crandall's representation of M.J. and C.J., a married couple. According to the factual findings in the referee's report, as stipulated by Attorney Crandall, M.J. and C.J. hired Attorney Crandall to help them remove inaccuracies from their credit report following their filing of a Chapter 7 bankruptcy petition.

¶ 6 When Attorney Crandall reviewed M.J. and C.J,'s credit report, he noted that M.J.'s credit report had been requested on several occasions by Direct Merchants Credit Card Bank (Direct Merchants). M.J., however, did not believe that he had an account with Direct Merchants.

¶ 7 Attorney Crandall told M.J. and C.J. that Direct Merchants' actions constituted a violation of the federal Fair Credit Reporting Act (FCRA). In February and March 2002 he sent two letters to Direct Merchants requesting any credit application or authorization in which M.J. had authorized Direct Merchants to obtain access to his credit report.

¶ 8 On April 12, 2002, Direct Merchants sent a response to Attorney Crandall. That letter asserted that in response to a telemarketing call in January 2001, M.J. had authorized Direct Merchants to review his credit report. The letter also stated that Direct Merchants had subsequently ordered credit cards for M.J., which he should have received in February or March 2001.

¶ 9 Attorney Crandall then sent two letters to M.J. in which he asked M.J. to respond to the statements in Direct Merchants' response. M.J. did not respond to Attorney Crandall's letters.

¶ 10 Despite not having heard from M.J., Attorney Crandall replied to. Direct Merchants' April 12, 2002, letter. Attorney Crandall's letter stated that M.J. had insisted that he had not given Direct Merchants permission to review his credit report, and that M.J. had never received any credit cards from Direct Merchants. Attorney Crandall demanded that. Direct Merchants provide copies of all records relating to its alleged telephone call with M.J. If such records were not provided, Attorney Crandall threatened to bring an action against Direct Merchants. Attorney Crandall sent a copy of this letter to M.J.

¶ 11 Although he still had not received any response from M.J., on June 28, 2002, Attorney Crandall proceeded to file an action against Direct Merchants in the United States District Court for the Western District of Wisconsin. The complaint alleged that Direct Merchants had violated the FCRA by accessing M.J.'s credit report on three occasions without having a lawful basis to do so.

¶ 12 On August 8, 2002, Attorney Crandall sent a settlement letter to Direct Merchants. Attorney Crandall asserted that Direct Merchants faced possible financial exposure of $389,000, which included $200,000 for potential punitive damages and $150,000 for attorney fees. Attorney Crandall offered to settle the matter with Direct Merchants for a payment of $150,000. Attorney Crandall sent a copy of this letter to M.J.

¶ 13 On August 13, 2002, counsel for Direct Merchants sent a letter to Attorney Crandall. That letter indicated that Direct Merchants had a tape recording of the January 2001 telemarketing call in which M.J. had applied for a credit card and had authorized Direct Merchants to review his credit report. The letter also stated that Direct Merchants had subsequently approved M.J.'s credit application and had ordered credit cards to be sent to him. Enclosed with the letter was a copy of a March 2002 statement relating to M.J.'s account with Direct Merchants. The letter further advised that if M.J. no longer wished to allow Direct Merchants to review his credit report, he could submit a written request to cancel his account. Finally, the letter requested that M.J. voluntarily dismiss his federal court complaint.

¶ 14 The next day Direct Merchants provided a tape recording of the telemarketing call. Direct Merchants informed Attorney Crandall that the recording showed that his client had no valid basis for continuing the lawsuit. It stated that if M.J. proceeded further with the action, it would "avail itself of all legal options."

¶ 15 Attorney Crandall sent a copy of the letter and the tape recording to M.J. and C.J. They have subsequently stated that they believed that the lawsuit would be terminated at that point. Attorney Crandall, however, continued prosecuting the federal claim. On August 26, 2002, Attorney Crandall wrote to Direct Merchants' counsel. He acknowledged that it was M.J.'s voice on the recording of the telemarketing call, but denied that M.J. had ever received a credit card or a March 2002 account statement from Direct Merchants. Attorney Crandall alleged that the telemarketing call had authorized Direct Merchants to review M.J.'s credit report on only one occasion. Thus, he claimed that Direct Merchants' access of M.J.'s credit report on subsequent occasions had still constituted a FCRA violation.

¶ 16 Because Attorney Crandall refused to dismiss the action, Direct Merchants filed a motion for summary judgment and for sanctions against. M.J. On December 12, 2002, M.J. signed an affidavit in opposition to the summary judgment motion. In the affidavit, M.J. averred that he had initially told Attorney Crandall that he had not had direct contact with Direct Merchants and that he had believed that statement to be true at the time. He now admitted that he had in fact applied for a Direct Merchants' credit card during a January 2001 telemarketing call and acknowledged that Direct Merchants had lawfully accessed his credit report on one occasion in response to his application. The affidavit stated, however, that M.J. had never received any credit card from Direct Merchants, that Direct Merchants' access of his credit report on subsequent occasions had therefore been unlawful, and that on the day prior to executing the affidavit M.J. had tried to make two purchases with his Direct Merchants credit card number, but had been unsuccessful because the card number had been rejected.

¶ 17 Although M.J.'s affidavit had been designed to oppose Direct Merchants' summary judgment motion, Attorney Crandall did not file it with the court. Indeed, he filed nothing in opposition to the summary judgment motion. The U.S. District Court scheduled the motion for a hearing, but Attorney Crandall failed to inform either M.J. or C.J. of that proceeding.

¶ 18 Since no opposition to the motion had been filed, on December 31, 2002, the court granted summary judgment to Direct Merchants and dismissed M.J.'s claims. The court, however, denied Direct Merchants' request for sanctions against M.J. Attorney Crandall failed to inform M.J. and C.J. of the dismissal of M.J.'s complaint.

¶ 19 On January 8, 2003, Direct Merchants filed a motion for reconsideration of the denial of their motion for sanctions. Although he had filed nothing in opposition to the summary judgment motion, Attorney Crandall now filed a brief in opposition to the renewed request for sanctions and attached the summary judgment affidavit that M.J. had previously executed on December 12, 2002. The court...