Disciplinary Proceedings Against Sosnay, Matter of, 95-0814-D

• Decision Date: 01 May 1997
• Docket Number: No. 95-0814-D,95-0814-D
• Citation: 209 Wis.2d 241,562 N.W.2d 137
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Robert S. SOSNAY, Attorney at Law.
• Court: Wisconsin Supreme Court

Page 137

562 N.W.2d 137

209 Wis.2d 241

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Robert S. SOSNAY, Attorney at Law.

No. 95-0814-D.

Supreme Court of Wisconsin.

Submitted on Briefs April 10, 1997.

Decided May 1, 1997.

For Robert S. Sosnay there was a brief by Martin E. Kohler and Kohler & Hart, Milwaukee.

For the Board of Attorneys Professional Responsibility there was a brief by Jeananne L. Danner, counsel.

¶1 PER CURIAM.

Attorney disciplinary proceeding. Attorney's license revoked.

Attorney Robert S. Sosnay appealed from the referee's recommendation that the court revoke his license to practice law in Wisconsin as discipline for professional misconduct. That misconduct consisted of conversions of client funds in his trust account, misrepresentations to clients concerning the results of matters he pursued on their behalf, paying clients money under false pretenses, failing to exercise his professional judgment on behalf of clients and neglecting their legal matters, repeatedly ignoring clients' requests for information concerning their legal matters, and numerous failures to respond to requests for information from the Board of Attorneys Professional Responsibility (Board) and from the district professional responsibility committee investigating client grievances.

¶2 In this appeal, Attorney Sosnay did not contest the referee's findings of fact and conclusions of law concerning his misconduct. He contended, however, that the referee erred in determining that his psychological condition--dysthymia--was not a factor properly to be considered in mitigation of discipline to be imposed for that misconduct.

¶3 The determination that Attorney Sosnay's psychological condition did not constitute a mitigating factor is based on the referee's factual finding that the condition was not established as a cause of that misconduct. Absent a causal connection between an attorney's medical condition and that attorney's professional misconduct, the medical condition may not be considered a factor mitigating either the seriousness of the misconduct or the severity of discipline to be imposed for it. Disciplinary Proceedings Against LeRose, 182 Wis.2d 595, 603-04, 514 N.W.2d 412 (1994).

¶4 On appeal, we will not reject a referee's finding of fact unless it is clearly erroneous. Here, the referee's finding that the evidence failed to establish that Attorney Sosnay's dysthymia caused most, if not all, of his professional misconduct has ample support in the record. Accordingly, we adopt that finding and accept the referee's consequent determination that Attorney Sosnay's psychological condition was not a factor to be considered in mitigation of the severity of discipline to impose for that misconduct. Before addressing that determination at greater length, we set forth the referee's findings of fact and conclusions of law concerning Attorney Sosnay's professional misconduct, findings and conclusions that are not contested in this appeal.

¶5 Attorney Sosnay was admitted to practice law in Wisconsin in 1973 and practices in Milwaukee. He has been disciplined for professional misconduct three times. In 1984, the Board privately reprimanded him for dishonesty in having accepted full payment of a mortgage and disbursing that payment to his client but failing for 10 months thereafter to respond to the mortgagor's request for a mortgage satisfaction. In 1988, the court suspended his license to practice law for 90 days as discipline for neglect of client legal matters, failure to respond to numerous inquiries from the Board during its investigation of client grievances and appear before the Board in those matters, and continuing to practice law while ineligible to do so as a result of nonpayment of State Bar dues. In re Disciplinary Proceedings Against Sosnay, 146 Wis.2d 709, 431 N.W.2d 673 (1988). In 1991, after the Board had commenced a disciplinary proceeding against him, Attorney Sosnay consented to a Board-imposed public reprimanded for his neglect of a client's legal matter and failure to respond to the client's numerous telephone and written requests for information concerning it.

¶6 The referee in this instant proceeding, Attorney Jean DiMotto, found that Attorney Sosnay engaged in professional misconduct in several matters, based on the allegations of the Board's third amended complaint, to which he pleaded no contest, and the parties' stipulation. The first matter concerned Attorney Sosnay's representation of a client on a personal injury claim, for which he was retained in November, 1987. Despite his belief that he would not be able to prove the client's claim, Attorney Sosnay filed an action on the client's behalf in September, 1990. When he failed to furnish a witness list, a permanency report, and an itemization of special damages required by the court's scheduling order, the court precluded him from calling any witnesses at trial or asserting any claim for permanency or medical expenses and dismissed the action, awarding costs to the defendants. Attorney Sosnay then misrepresented to his client that he had obtained $7500 in the action and would pay it to the client in $250 monthly installments. He paid the client some $5000 under that arrangement and testified that he had done so because he felt sorry for the client, thought he would be unable to accept the outcome of the litigation, and wanted to encourage the client to resume his education.

¶7 In April, 1988, that same client had asked Attorney Sosnay to represent him on another personal injury claim. Notwithstanding advice he had obtained from another attorney to the effect that the client had no cause of action against the purported defendants and similar advice from an assistant district attorney he had asked to review the police file, Attorney Sosnay, assertedly "against his better judgment," commenced an action on the client's claim in September, 1990.

¶8 In March, 1993, the client filed a grievance with the Board asserting that he had not learned of the dismissal of the first personal injury action for two and one-half years and after Attorney Sosnay had paid him thousands of dollars and that Attorney Sosnay would not give him his file in the matter after he discharged him. The client also asserted in a separate grievance that Attorney Sosnay would not give him copies of the court papers in the second action and, despite numerous requests, refused to return his file. Attorney Sosnay did not respond to the Board's request for a reply to the grievances or to the letters from the district professional responsibility committee to which the matter had been referred for investigation. He ultimately replied at the end of September, 1993 but, despite two letters from the committee's investigator, delayed turning over the client's file until the middle of November, 1993.

¶9 The referee concluded that by filing a lawsuit on a claim knowing it was unprovable, Attorney Sosnay knowingly advanced a factual position which had no basis, in violation of SCR 20:3.1(a)(2). ¹ His filing the second action contrary to his own professional judgment and then failing to prosecute it constituted a failure to exercise independent professional judgment in representing a client, in violation of SCR 20:2.1. ² His payments to the client purporting to be settlement proceeds from the first action constituted conduct involving dishonesty, deceit and misrepresentation, in violation of SCR 20:8.4(c). ³ His failure to inform the client for a period of 15 months of the dismissal of the second action violated SCR 20:1.4(a) ⁴ as a failure to keep a client reasonably informed of the status of a matter. His failure to release the client's files despite repeated requests to do so violated SCR 20:1.16(d). ⁵ Finally, his repeated failure to respond to inquiries from the Board and his delay in turning over the client's files constituted a failure to cooperate with and provide information to the Board during its investigation of a grievance, in violation of SCR 21.03(4) ⁶ and 22.07(2) and (3). ⁷

¶10 In another matter, Attorney Sosnay was retained in July, 1989 to investigate a claim of defects in a home a couple had purchased. The following month, he told the clients they had a cause of action against the sellers and that he could recover at least $12,000 in damages for them. He provided no written fee agreement, but the clients paid him $600 for filing fees and inspection costs in addition to the $50 they had given him for his initial investigation of their claim, all of which he deposited into his law office account.

¶11 For the next two years, Attorney Sosnay did not return numerous telephone calls from the clients or meet with them as they had arranged. The few times they reached him, he said he needed more time to proceed with the case. After the couple left the country in August, 1992, the person to whom they had given power of attorney was unsuccessful in attempting to reach Attorney Sosnay, although the clients had given him that person's name and address. Attorney Sosnay did not respond to an April, 1993 registered letter the clients sent him from overseas asking about their lawsuit and expressing concern that they had not heard of any progress during the preceding four years.

¶12 It was not until they filed a grievance with the Board in November, 1993, that the clients learned that Attorney Sosnay had not commenced an action on their behalf. Attorney Sosnay did not respond to the Board's request for information concerning that grievance or to the district committee asking for a response. At the hearing in this disciplinary proceeding, Attorney Sosnay gave the clients a check for $1200 in repayment of the $650 they had paid him in 1989, plus interest.

¶13 The referee concluded that Attorney Sosnay's failure to reduce to writing his fee agreement with the client stating the method by which his fee was to be determined violated SCR 20:1.5(c). ⁸ His failure to perform...