Office of Lawyer Regulation v. Boyle (In re Boyle)

• Decision Date: 23 December 2015
• Docket Number: No. 2014AP482–D.,2014AP482–D.
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Gerald P. BOYLE, Attorney at Law. Office of Lawyer Regulation, Complainant–Respondent, v. Gerald P. Boyle, Respondent–Appellant.
• Court: Wisconsin Supreme Court

365 Wis.2d 649

872 N.W.2d 637

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Gerald P. BOYLE, Attorney at Law.Office of Lawyer Regulation, Complainant–Respondent,

v.Gerald P. Boyle, Respondent–Appellant.

No. 2014AP482–D.

Supreme Court of Wisconsin.

Argued Oct. 12, 2015.

Submitted Dec. 23, 2015.

For the respondent-appellant, there were briefs by Gerald P. Boyle, and Boyle, Boyle & Boyle, S.C., Milwaukee, and oral argument by Gerald P. Boyle.

For the complainant-respondent, there was a brief by Robert G. Krohn, and Roethe Pope Roeth, LLP, Edgerton, and oral argument by Robert G. Krohn.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶ 1 Attorney Gerald P. Boyle appeals the report of Hannah C. Dugan, referee, who recommended that this court suspend Attorney Boyle's Wisconsin law license for 60 days; require him to complete six continuing legal education (CLE) credits in law office management and/or trust account practices; require him to provide quarterly trust account reports to the Office of Lawyer Regulation (OLR) for one year; and require him to pay the full costs of this disciplinary proceeding. The referee found that Attorney Boyle committed all six charged counts of misconduct, which included trust account violations; a failure to explain in writing the nature of his proposed fee and subsequent fee changes, the purpose and effect of the advanced fees he accepted, and the scope of the legal services he would provide in exchange for those fees; a failure to promptly comply with a client's reasonable requests for information; and a failure to act with reasonable diligence and competence.

¶ 2 We adopt the referee's findings of fact and conclusions of law. We conclude that the referee's reasoning with respect to discipline is persuasive. Accordingly, this court concludes that a 60–day suspension of Attorney Boyle's license to practice law in Wisconsin is an appropriate sanction for his violations. We also agree with the referee's recommendations to require Attorney Boyle to provide quarterly trust account reports to the OLR for one year; to require him to complete six CLE credits in law office management and/or trust account practices; and to require him to pay the full costs of this disciplinary proceeding, which total $24,917.89 as of November 2, 2015.

¶ 3 Attorney Boyle has held a Wisconsin law license since 1962. He has been privately reprimanded three times.

¶ 4 In 2002, Attorney Boyle was privately reprimanded for violating Supreme Court Rule (SCR) 20:1.3, SCR 20:1.4(b), and SCR 20:1.16(d) for failing to act diligently with respect to a criminal defendant's request for post-conviction relief, failing to explain matters to the client so that the client could make informed decisions, and failing to return the client's file. See Private Reprimand 2002–09.

¶ 5 In 2009, Attorney Boyle was privately reprimanded for violating SCR 20:1.3, SCR 20:1.4(a), SCR 20:1.16(d), and former SCR 20:5.1(a) and (b). The violations involved multiple cases assigned to associate attorneys working for Attorney Boyle. The associates failed to take any meaningful action on those cases. After Attorney Boyle became aware of significant problems in the law firm's representation, he failed to take remedial action on the cases. Attorney Boyle also delayed returning the file and unearned fees of one of the clients for more than two years. See Private Reprimand 2009–10.

¶ 6 In 2012, Attorney Boyle was privately reprimanded for violating SCR 20:1.5(b)(1) and (2) for failing to prepare a written fee agreement and failing to explain the purpose and effect of any advanced fee received. See Private Reprimand 2012–23.

¶ 7 In its underlying complaint in this case, the OLR charged Attorney Boyle with six counts of misconduct. Attorney Boyle denied the misconduct charges in his answer.

¶ 8 Counts One through Five arise out of Attorney Boyle's representation of D.P. in a consumer law/fraud matter. D.P. collects John Lennon memorabilia. D.P. paid over $191,000 to a gallery in Hawaii for various pieces of John Lennon memorabilia, including drawings and a microphone supposedly used by Lennon. D.P. paid over $95,000 to a gallery in Florida for various drawings by Lennon. D.P. paid over $21,000 to a gallery in New York for a drawing and handwritten letter by Lennon.

¶ 9 D.P. came to suspect the authenticity of the purchases. In 2008 and early 2009, D.P. learned that that the purchased items were counterfeit and/or not resalable.

¶ 10 D.P. retained a Waukesha County attorney who successfully recovered the amount paid to the Hawaii gallery for the microphone supposedly used by Lennon. This recovery still left over $131,000 in Lennon drawings sold by the Hawaii gallery that D.P. suspected were inauthentic.

¶ 11 D.P. consulted with an ink specialist to evaluate the authenticity of his collection of Lennon drawings. The ink specialist believed that many of the drawings were fraudulent, as many of the inks used for the drawings were not commercially available on the purported dates of the drawings. The ink specialist referred D.P. to Attorney Boyle, with whom the specialist had worked on a different, earlier matter.

¶ 12 In November 2009, D.P. sought legal representation from Attorney Boyle regarding all of the remaining purchases. Attorney Boyle initially told D.P. that he would handle the purchases with all three galleries for a flat fee of $25,000. Attorney Boyle did not prepare a written fee agreement, nor did he communicate in writing the purpose and effect of any advanced fees received from D.P.

¶ 13 In mid-November 2009, D.P. charged $10,000 to his credit card in partial payment of Attorney Boyle's $25,000 advanced fee. Attorney Boyle did not deposit the $10,000 advanced fee payment into his client trust account but instead deposited the payment into his law firm's operating account.

¶ 14 Not long thereafter, Attorney Boyle told D.P. that he would need more money to handle the case(s) against all three galleries. In January 2010, Attorney Boyle asked D.P. to send $35,000 immediately, and told D.P. that he would need another $35,000 in about six weeks. D.P. agreed to the proposal and promptly gave Attorney Boyle a cashier's check for $35,000. Attorney Boyle did not deposit the $35,000 advanced fee payment into his client trust account but instead deposited the payment into his law firm's operating account. Attorney Boyle did not prepare a written fee agreement modifying his original oral fee agreement with D.P., nor did he communicate in writing to D.P. any changes in the basis or rate of the fee. Attorney Boyle also did not explain in writing the purpose and effect of the $35,000 advanced fee payment.

¶ 15 In January 2011, D.P. paid Attorney Boyle another $20,000 to continue representation against the three galleries. Attorney Boyle did not deposit the $20,000 advanced fee payment into his trust account but instead deposited the payment into his law firm's operating account. As with the payments twice before, Attorney Boyle did not prepare a written fee agreement, nor did he communicate in writing to D.P. any changes in the basis or rate of the fee. Attorney Boyle also did not explain in writing the purpose and effect of the $20,000 advanced fee payment.

¶ 16 In December 2009, Attorney Boyle wrote letters to two of the three galleries (the Hawaii and New York galleries), alleging that the Lennon sketches that D.P. had purchased were forgeries and stating that D.P. wanted to recover his investment. In January 2010, Attorney Boyle wrote the Hawaii and New York galleries again, noting that he had not received any response from them. Attorney Boyle asked for the names of their respective law firms and the existence of any insurance coverage.

¶ 17 In May 2010, D.P. sought to discontinue Attorney Boyle's representation due to frustration over the pace at which the matters were progressing. Attorney Boyle ultimately convinced D.P. to allow him to stay on the case.

¶ 18 In early June 2010, Attorney Boyle arranged for another lawyer, outside of his firm, to meet with D.P. and write a memo discussing potential lawsuits against one or more of the three galleries. Attorney Boyle also met with the ink specialist with whom D.P. had consulted and who had referred D.P. to Attorney Boyle.

¶ 19 In June 2010, Attorney Boyle informed D.P. that the statute of limitations for his claim under Wis. Stat. § 100.18 (the "Deceptive Trade Practices Act" or "DTPA") had expired as to 10 of the 30 items he had purchased. The following day, D.P. noted in an email to Attorney Boyle that the statute of limitations would expire for additional items on July 3, 2010.

¶ 20 On July 2, 2010, Attorney Boyle filed a single lawsuit against the Hawaii gallery in the United States District Court for the Eastern District of Wisconsin. The lawsuit listed six causes of action, including the DTPA cause of action.

¶ 21 Certain defendants to the Eastern District lawsuit filed summary judgment motions that slowed the progress of the lawsuit. D.P. sent Attorney Boyle multiple emails seeking information about the case. Attorney Boyle and/or his firm responded minimally to these requests. Attorney Boyle cancelled various meetings D.P. had arranged, and failed to return many of D.P.'s phone calls.

¶ 22 At Attorney Boyle's request, D.P. began an effort to obtain print copies of his phone records for all outgoing and incoming long-distance calls since 2007. Attorney Boyle had told D.P. these records were critical to obtain personal jurisdiction of the out-of-state galleries. When the phone company informed D.P. that its policy required that the records could be obtained only by subpoena, D.P. asked Attorney Boyle in a July 2010 email to request a subpoena. D.P. asked Attorney Boyle about the status of the subpoena in two subsequent emails sent that same month. Attorney Boyle did not respond to D.P.'s email inquiries. After continued inquiries from D.P., Attorney Boyle's daughter (Attorney Bridget Boyle)...