Office of Lawyer Regulation v. Biester (In re Disciplinary Proceedings Against Mary K. Biester), 2012AP385–D.

• Decision Date: 22 October 2013
• Docket Number: No. 2012AP385–D.,2012AP385–D.
• Citation: 350 Wis.2d 707,2013 WI 85,838 N.W.2d 79
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Mary K. BIESTER, Attorney at Law. Office of Lawyer Regulation, Complainant, v. Mary K. Biester, Respondent.
• Court: Wisconsin Supreme Court

350 Wis.2d 707

838 N.W.2d 79

2013 WI 85

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Mary K. BIESTER, Attorney at Law.

Office of Lawyer Regulation, Complainant,

v.Mary K. Biester, Respondent.

No. 2012AP385–D.

Supreme Court of Wisconsin.

Decided Oct. 22, 2013.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶ 1 We review the report filed by the referee, Dennis J. Flynn, recommending the court suspend Attorney Mary K. Biester's license to practice law in Wisconsin for one year for 30 counts of professional misconduct. No appeal has been filed so we review the referee's report and recommendation pursuant to SCR 22.17(2).¹ Upon careful review of the matter, we adopt the referee's findings of fact and conclusions of law. We agree that Attorney Biester's professional misconduct warrants a one-year suspension of her license to practice law. We also find it appropriate to order her to make restitution and to successfully complete 20 hours of continuing legal education (CLE) ethics courses. We further find it appropriate to require her to pay the full costs of this proceeding, which were $25,584.50 as of April 1, 2013.

¶ 2 Attorney Biester was admitted to the practice of law in Wisconsin in 1979 and practices in Beloit. She has no prior disciplinary history.

¶ 3 On February 23, 2012, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Biester alleging 16 counts of misconduct. An amended complaint alleging 31 counts of misconduct was filed on August 15, 2012. Attorney Biester filed an answer to the amended complaint on September 18, 2012. On December 18, 2012, the referee granted Attorney Biester's motion for a stay of proceedings as to Count Two of the amended complaint.

¶ 4 The final hearing in this matter took place on February 18, 2013. At that time, the parties presented the referee with a written stipulation and no contest plea agreement whereby Attorney Biester withdrew her answer to the amended complaint and pled no contest to Counts One and Three through Thirty–One of the OLR's amended complaint. Attorney Biester agreed that the referee could use the allegations of the amended complaint as an adequate factual basis in the record for a determination of misconduct as to those counts. The parties jointly recommended the referee determine that an appropriate sanction would be a one-year suspension of Attorney Biester's license to practice law in Wisconsin. The parties agreed that if the referee's order staying proceedings relating to Count Two of the amended complaint was no longer in effect, the OLR was free to continue the prosecution of Count Two and seek an appropriate sanction and restitution. The parties also agreed that any additional sanction relating to Count Two should run consecutive to any sanctions imposed as a result of the stipulation and should commence on the day following the last day of the sanction imposed in the instant matter.

¶ 5 The referee concluded that the OLR had met its burden of proof on the 30 counts to which Attorney Biester pled no contest. The referee agreed that a one-year suspension was an appropriate sanction. The referee also recommended that Attorney Biester make restitution in the amount of $900 to one client, that she be ordered to successfully complete 20 hours of CLE ethics courses, and that she pay the full costs of this proceeding. Rather than detail the extensive allegations and findings in this matter, we will instead briefly summarize the six client matters that gave rise to Attorney Biester's misconduct.

Matter of L.T. (Counts One and Three through Seven)

¶ 6 L.T. hired Attorney Biester to represent her in a divorce case in the summer of 2008. Attorney Biester's nonlawyer assistant, J.M., had L.T. write a $3,500 check to J.M. for attorney fees. J.M. cashed the check without depositing it in Attorney Biester's trust account.

¶ 7 Attorney Biester was experiencing financial problems. She filed a chapter 7 bankruptcy proceeding and her home was the subject of a foreclosure action. L.T. inherited a large sum of money. Attorney Biester advised L.T. she should protect those funds from her husband. In February 2009 J.M. convinced L.T. to transfer $78,000 of her inherited funds into Attorney Biester's client trust account for safekeeping. Attorney Biester wire-transferred over $70,000 from her client trust account to the bank that held the first mortgage on Attorney Biester's home. Attorney Biester never notified L.T. of the receipt of L.T.'s funds, nor did she deliver any of those funds to L.T. or provide L.T. with a full accounting. The OLR's investigative audit of Attorney Biester's trust account showed numerous trust account violations.

Matter of L.R. (Counts Eight through Eleven)

¶ 8 In July of 2009, L.R. hired Attorney Biester to represent her in a divorce case. During the pendency of the matter $3,886 was forwarded to Attorney Biester, which represented L.R.'s half of a tax refund. Although L.R. repeatedly contacted Attorney Biester in the fall of 2009 about the status of the case, Attorney Biester never responded. L.R. then decided to represent herself and asked Attorney Biester to return the case file and the $3,886. In October 2009 Attorney Biester informed L.R. that police had seized L.R.'s divorce file since it was part of an investigation by the OLR into the actions of an employee at Attorney Biester's law firm.

Matter of J.F. (Counts Twelve through Sixteen)

¶ 9 J.F. retained Attorney Biester to represent her in a bankruptcy matter in July 2010. J.F. paid a $750 retainer. There was no written retainer agreement and no receipt was given to J.F. Attorney Biester requested additional money to handle the matter, and J.F. paid another $150. Attorney Biester never deposited the funds into any client account, and no funds were set aside to pay the bankruptcy filing fee. Attorney Biester filed a chapter 7 voluntary bankruptcy petition on behalf of J.F. in December 2010 and filed a request for a waiver of the filing fee. The waiver of filing fees was denied but options were given for installment payments. Attorney Biester never informed J.F. about the bankruptcy court's fee waiver decision. The filing fee was never paid, and in April 2011 the bankruptcy court entered an order dismissing the petition for failure to pay the filing fee. Attorney Biester never informed J.F. about the dismissal.

Matter of J.H. and D.H. (Counts Seventeen through Twenty–Four)

¶ 10 In April 2007 J.H. and D.H. retained Attorney Biester to represent them in a potential medical malpractice claim. A contingent retainer agreement was signed calling for Attorney Biester to receive one-third of any amount recovered. In addition, J.H. and D.H. paid $1,500 for anticipated costs. The $1,500 check was deposited into Attorney Biester's client trust account.

¶ 11 J.H. and D.H. made multiple trips to Attorney Biester's office to discuss the case, but Attorney Biester was never there. Attorney Biester failed to file any malpractice lawsuit or otherwise advance the claim before the expiration of the statute of limitations.

¶ 12 J.M. was authorized as Attorney Biester's nonlawyer assistant to perform client services to J.H. and D.H. Attorney Biester failed to make reasonable efforts to ensure that J.M. was compatible with Attorney Biester's professional obligations. J.M. took client files and paperwork to her home or other locations and failed to return them to Attorney Biester's law office. J.H. and D.H. eventually terminated their representation by Attorney Biester and requested the return of their case file materials. Attorney Biester failed to comply.

Matter of J.M. (Counts Twenty–Five through Thirty)

¶ 13 J.M., Attorney Biester's nonlawyer assistant, hired Attorney Biester in early July 2007 relating to a financial matter regarding a loan on a pickup truck with J.S. J.M. and J.S. signed an agreement whereby J.S. would pay J.M. $7,900 for a pickup truck, and J.M. agreed to accept the $7,900 as full and final payment for the truck. J.M. also agreed to release the title to the truck. J.S.'s sister loaned him the $7,900. That sum was wire-deposited to Attorney Biester's client trust account. Attorney Biester did not notify J.M. of her receipt of the money. The OLR's audit of Attorney Biester's client trust account revealed that Attorney Biester used the funds belonging to J.M. by making disbursements to herself for $5,400 and paying $400 in office rent. During the course of the representation, J.M. was associated with the Biester Law Office and engaged in conduct that was incompatible with the professional obligations of Attorney Biester, including having Attorney Biester's business and client trust account checkbooks at her home. The checkbooks were seized by police in the execution of a search warrant of J.M.'s home.

Matter of M.W. (Count Thirty–One)

¶ 14 M.W. hired Attorney Biester to represent her in custody and paternity matters. She tried without success to contact Attorney Biester regarding the status of her case. M.W. verbally filed a grievance with the OLR. The OLR sent Attorney Biester several letters but Attorney Biester did not respond. Attorney Biester did finally respond after this court issued an order to show cause why her license should not be temporarily suspended for failing to cooperate in the investigation.

¶ 15 The referee concluded that Attorney Biester committed the misconduct alleged in Counts One and Three through Thirty–One of the amended complaint. That misconduct consisted of: One violation of SCR 20:1.2(a); ² three violations of SCR 20:1.3; ³ one violation of SCR 20:1.4(a)(2); ⁴ three violations of SCR 20:1.4(a)(3); ⁵ two violations of SCR 20:1.4(a)(4); ⁶ one violation of SCR 20:1.4(b); ⁷ one violation of SCR 20:1.6; ⁸ four violations of SCR 20:1.15(b)(1); ⁹ two violations of SCR 20:1.15(b)(4); ¹⁰ one violation of SCRs 20:1.15(d)(1) and (2); ¹¹ three violations of SCR 20:1.15(f)(1)e.; ¹² two violations of SCR...