IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST CARROLL

• Citation: 2001 WI 130,636 N.W.2d 718,248 Wis.2d 662
• Decision Date: 06 December 2001
• Docket Number: No. 00-1462-D.,00-1462-D.
• Parties: IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST John Miller CARROLL, Attorney at Law. BOARD OF ATTORNEYS PROFESSIONAL RESPONSIBILITY, Complainant-Appellant, v. John Miller CARROLL, Respondent-Respondent.
• Court: United States State Supreme Court of Wisconsin

248 Wis.2d 662

2001 WI 130

636 N.W.2d 718

IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST John Miller CARROLL, Attorney at Law.

BOARD OF ATTORNEYS PROFESSIONAL RESPONSIBILITY, Complainant-Appellant, v. John Miller CARROLL, Respondent-Respondent.

No. 00-1462-D.

Supreme Court of Wisconsin.

Submitted on briefs September 17, 2001.

Decided December 6, 2001.

For the complainant-appellant there were briefs by Gregg Herman, Matthew J. Price and Loeb & Herman, S.C., Milwaukee.

For the respondent-respondent there was a brief by John Miller Carroll, Wind Lake.

¶ 1. PER CURIAM.

The Board of Attorneys Professional Responsibility (the Board)¹ has appealed from the findings of fact, conclusions of law, and disciplinary recommendation of a referee that the license to practice law in Wisconsin of Attorney John Miller Carroll be suspended for six months.

¶ 2. The referee's findings and conclusions addressed ten separate counts of professional misconduct set forth in the Board's complaint in this proceeding. One count was dismissed on stipulation of the parties and the referee found that misconduct had occurred with respect to seven of the remaining nine counts, dismissing the remaining two counts.

¶ 3. We adopt the referee's findings of fact and conclusions of law with respect to the seven counts on which misconduct was found to have occurred, as well as count nine which she recommended be dismissed. However, we reject the referee's findings of fact and conclusions of law with respect to count then which she recommended be dismissed after finding that no misconduct had occurred. Finally, we agree with the referee that the seriousness of Attorney Carroll's professional misconduct warrants the suspension of his license to practice law in this state, although we do not follow her recommendation as to the length of the suspension.

¶ 4. Attorney John Miller Carroll was admitted to practice law in Wisconsin in 1987 and currently practices in Wind Lake. He has been disciplined for professional misconduct on three previous occasions: (1) a 1992 private reprimand for failing to hold funds in trust in which both he and his former law firm claimed an interest; (2) a 1997 private reprimand for performing work for a client after his services were terminated and for misrepresenting that he had filed a motion on behalf of the client; and (3) a public reprimand in 1999 for neglect of a matter, for failing to communicate with a client, and failing to return a retainer; see 72 Wisconsin Lawyer at 45-46 (July 1999). ¶ 5. The Board filed the instant disciplinary complaint against Carroll on April 28, 2000. Attorney Joan F. Kessler was appointed to act as a referee in the matter. In Attorney Carroll's answer to the complaint, he admitted some, and denied other, of the factual allegations contained in the complaint and sought either a dismissal of the matter in its entirety or, in the alternative, a sanction that was commensurate with the severity of the conduct that was found to have taken place.

¶ 6. The Board's allegations of misconduct and the referee's findings dealt with ten counts, involving four separate clients: H.H., J.J., L.L., and R.A.

CLIENT H.H.

¶ 7. Attorney Carroll represented H.H. who was injured in 1997 in an automobile rear end collision. The matter was ultimately settled with the other party paying $2500 plus a medical bill of $292. Attorney Carroll charged H.H. one-third of the $2500 plus costs of approximately $432 covering filing and service fees for the two lawsuits commenced, the first lawsuit having been improperly served and therefore dismissed.

¶ 8. Count one of the Board's complaint alleged that Attorney Carroll violated SCR 20:1.3,² failure to diligently pursue the client's claim, by virtue of having permitted the first lawsuit to expire without service. The referee concluded that misconduct had occurred with respect to this count. ¶ 9. Count two alleged a violation of SCR 20:1.4(a),³ failure to keep the client reasonably informed about the status of the matter and failure to promptly comply with reasonable requests for information, by virtue of Attorney Carroll's failure to keep H.H. adequately informed, despite her numerous requests for information, during the course of the litigation. The referee concluded that misconduct had occurred with respect to this count.

¶ 10. Count three alleged a violation of SCR 20:1.5(c),⁴ failing to enter into a written contingent fee agreement with the client, by virtue of the alleged absence of such an agreement in this instance. This count was dismissed by the referee upon stipulation of the parties.

¶ 11. Count four alleged a violation of SCR 22.07(2),⁵ failure to fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct upon investigation by the Board, by virtue of Attorney Carroll's failure to disclose to the Board during its investigation that he had filed the earlier lawsuit that was ultimately dismissed and in general misrepresenting the nature of his representation of H.H. The referee concluded that misconduct had occurred with respect to this counts⁶

¶ 12. Neither Attorney Carroll nor the Board have raised on appeal any matters pertaining to the counts involving the representation of H.H., and we adopt the referee's findings and conclusions with respect to these counts.

CLIENT J.J.

7para; 13. Attorney Carroll represented J.J. in 1998 on a claim against an insurance company involving a motorcycle loss. The company issued a check listing J.J., Attorney Carroll, and the lien holder on the motorcycle as payees. Attorney Carroll's office unsuccessfully attempted to deposit the check without obtaining an endorsement from the lien holder. After that Attorney Carroll asked the company to issue a new check deleting the lien holder's name, which it refused to do. Attorney Carroll then gave the original check to J.J., instructing him to obtain the lien holder's signature. J.J. returned it to Carroll with an illegible signature purporting to be that of the lien holder which Attorney Carroll then deposited in his trust account. It was later determined that the lien holder had not actually endorsed the check.

¶ 14. Attorney Carroll testified in the disciplinary proceeding before the referee that he had been told by J.J. that the lien would be satisfied and that is why the lien holder signed the check. However, the referee found that Attorney Carroll should have known that this likely was untrue because he knew that his client had previously lied to him about the status of the lien and he also should have been suspicious when the check was returned with the illegible signature.

¶ 15. The referee found that once Attorney Carroll discovered that his client had lied to him about a significant financial matter, it was unreasonable and irresponsible to deliver a negotiable instrument to him, given the obvious high risk of forgery. The referee further stated that Attorney Carroll should not escape responsibility for the fraudulent conduct he set in motion under these circumstances. Thus the referee concluded that Carroll had committed professional misconduct under SCR 20:8.4(c),⁷ engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, count five.⁸

¶ 16. Neither the Board nor Attorney Carroll have appealed any aspect of the referee's determination with respect to this count, and we adopt the referee's findings and conclusions.

CLIENT L.L.

¶ 17. L.L. had hired Attorney Carroll's firm in 1998 to represent her husband on criminal charges. She assigned $5000 of the $10,000 bail she had posted, upon its release, to Attorney Carroll to cover his retainer. However, she also later paid a $5000 retainer directly to him. When her husband was eventually convicted, $9468 of the bail was released and sent to Attorney Carroll which he deposited in its entirety in his client trust account. On the same day he returned $4468 to L.L. and moved the remaining $5000 of the bail to his business operations account. L.L. demanded return of the $5000 and four months later Attorney Carroll returned $4589.75 to her. (The $410.25 still retained by Attorney Carroll was apparently not a subject of dispute).

¶ 18. Attorney Carroll testified that in his view both the $5000 bail assignment and the $5000 paid directly were supposed to have been a retainer. The referee found to the contrary and concluded that prossional misconduct had occurred with respect to four counts alleged by the Board with reference to L.L.

¶ 19. The referee concluded that a violation of count six had occurred, involving a violation of SCR 20:1.15(a),⁹ failing to hold client funds in trust, by virtue of Attorney Carroll moving what the client considered to be refunded bail from his trust account into his business operations account. ¶ 20. The referee further concluded that a violation of count seven had occurred, involving SCR 20:1.15(b),¹⁰ failing to render a full accounting of trust property and failing to properly return client trust funds, by virtue of Attorney Carroll's failure to respond to the client's request to return the refunded bail and to account for the funds within a reasonable period.

¶ 21. Next, the referee concluded that a violation of count eight had occurred, relating to SCR 20:1.15(d),¹¹ involving the proper treatment of disputed funds as trust property pending resolution of the dispute with a client, by virtue of Attorney Carroll's failure to retain the disputed bail amount in the client's trust account. ¶ 22. Finally the referee recommended dismissal of count nine, pertaining to a violation of SCR 20:8.4(f),¹² declaring professional misconduct to have occurred when an attorney violates a supreme court rule or decision, again relating to Attorney Carroll's retention of the refunded bail after there was a dispute. The referee concluded that this count was duplicative of the other three counts.¹³

¶ 23. Neither Attorney Carroll nor the Board...