Office of Lawyer Regulation v. Schwedler (In re Schwedler), 2016AP1770-D

• Decision Date: 01 June 2017
• Docket Number: No. 2016AP1770-D,2016AP1770-D
• Citation: 895 N.W.2d 409,2017 WI 54,375 Wis.2d 426
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Carl J. SCHWEDLER, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Carl J. Schwedler, Respondent.
• Court: Wisconsin Supreme Court

375 Wis.2d 426

895 N.W.2d 409

2017 WI 54

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Carl J. SCHWEDLER, Attorney at Law:Office of Lawyer Regulation, Complainant,

v.Carl J. Schwedler, Respondent.

No. 2016AP1770-D

Supreme Court of Wisconsin.

Opinion Filed: June 1, 2017

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 On September 12, 2016, the Office of Lawyer Regulation (OLR) filed a complaint and motion pursuant to Supreme Court Rule (SCR) 22.22, requesting this court suspend Attorney Carl J. Schwedler's license to practice law in Wisconsin for a period of six months, as discipline reciprocal to that imposed by the United States Patent and Trademark Office (USPTO). The OLR asked that we order restitution as described herein and impose costs on Attorney Schwedler. Upon review, we agree that it is appropriate to suspend Attorney Schwedler's law license for a period of six months. Consistent with the terms of the decision rendered by the USPTO, if Attorney Schwedler seeks reinstatement of his license to practice law in Wisconsin, reinstatement may require Attorney Schwedler to demonstrate that he has made restitution to the client. We decline to impose costs on Attorney Schwedler.

¶2 Attorney Schwedler was admitted to practice law in Wisconsin in 1990. He was registered as a patent attorney by the USPTO on April 19, 1993. He was admitted to practice law in California in 2006 and resides in California.

¶3 On October 31, 2009, Attorney Schwedler's Wisconsin law license was suspended for failure to pay State Bar of Wisconsin dues. On June 8, 2011, his Wisconsin law license was further suspended for failure to comply with continuing legal education requirements. Attorney Schwedler's Wisconsin law license remains administratively suspended. In 2015, the State Bar of California transferred Attorney Schwedler to "inactive enrollment" for his failure to timely file a response to then pending disciplinary charges. He was subsequently disbarred. On March 18, 2015, Attorney Schwedler was administratively suspended from practice before the USPTO. He was later excluded from practice before the USPTO.¹

¶4 On September 12, 2016, the OLR filed a complaint against Attorney Schwedler alleging that, by virtue of the public sanction imposed by the USPTO on March 21, 2016, Attorney Schwedler is subject to reciprocal discipline in Wisconsin pursuant to SCR 22.22.² On November 30, 2016,³ this court directed Attorney Schwedler to inform the court in writing within 20 days of any claim by him, predicated upon the grounds set forth in SCR 22.22(3), that the imposition of discipline reciprocal to that imposed by the USPTO would be unwarranted, and of the factual basis for any such claim. Attorney Schwedler did not file a response. On March 23, 2017 this court issued an order directing the OLR to respond to a series of questions regarding this matter. The OLR filed a response on April 6, 2017.

¶5 We first observe that the USPTO, a federal agency with its own licensing and disciplinary proceedings, is appropriately considered "another jurisdiction" for purposes of our reciprocal discipline rule, SCR 22.22(1). See In Re Discipline of Peirce , 122 Nev. 77, 78, 128 P.3d 443, 443 (2006), reinstatement granted sub nom. In re Reinstatement of Peirce , No. 62091, 2014 WL 4804214 (Nev. Sept. 24, 2014) ; People v. Hartman , 744 P.2d 482 (Colo. 1987) ; People v. Bode , 119 P.3d 1098, 1100 (Colo. O.P.D.J. 2005) ; In Disciplinary Counsel v. Lapine , 2010-Ohio-6151, ¶¶12-14, 128 Ohio St.3d 87, 89-90, 942 N.E.2d 328, 330-31.

¶6 Accordingly, we consider the following facts, which are taken from the OLR's complaint and from the certified documents attached to the OLR's complaint relating to the underlying disciplinary proceeding.

¶7 On October 6, 2015, the United States Office of Enrollment and Discipline (OED) for the USPTO filed a disciplinary complaint against Attorney Schwedler. Attorney Schwedler failed to respond and the OED eventually sought a default judgment. On March 21, 2016, the USPTO issued an order finding Attorney Schwedler in default, such that he was deemed to have admitted the allegations in the OED's complaint. The USPTO then sanctioned Attorney Schwedler for numerous violations of the USPTO Rules of Professional Conduct. Essentially, Attorney Schwedler undertook to represent a client, G.Y., in a patent application, accepted a $1,500 retainer, and then abandoned the client and the patent application, failing to take any action on the client's behalf. The Administrative Law Judge (ALJ) concluded that Attorney Schwedler violated USPTO Rules of Professional Conduct, as follows:

1. C.F.R § 11.103 proscribes failing to act with reasonable diligence and promptness in representing a client. Respondent agreed to take over the representation of a Client on a [patent] application and told the Client that he would file a response to the June 10, 2013, Final Office Action before September 10, 2013. Respondent failed to file that response allowing the [patent] application to become abandoned. After the [patent] application became abandoned, Respondent made no efforts to revive it. These lapses constitute violations of 37 C.F.R. § 11.103.

2. 37 C.F.R. § 11.104(a)(3) proscribes failing to keep the client reasonably informed about the status of a matter. Respondent agreed to submit the appropriate filings to the USPTO by September 10, 2013, but failed to do so. This resulted in the [patent] application becoming abandoned. Respondent did not inform the Client of this development or that Respondent had not filed the response. It was only after the Client was notified by Respondent's former firm of the status that Respondent resumed communications with the Client. Such conduct constitutes a violation of 37 C.F.R. § 11.104(a)(3).

3. 37 C.F.R. § 11.104(a)(4) proscribes failing to promptly comply with reasonable requests for information. As noted [above], Respondent did not resume communications with the Client until after the Client's son began to ask about the status of the [patent] application. The Client's inquiries into the status of the [patent] application were reasonable, especially in light of the fact that the Client was notified that the application had become abandoned. However Respondent's responses, though prompt, were not compliant with the Client's requests for information, because Respondent purposely gave the Client's son incorrect information by indicating that 'everything is normal here' when in fact the [patent] application had become abandoned.

4. 37 C.F.R § 11.115(d) proscribes failing to promptly deliver to a client any funds or property that the client is entitled to receive. After the Client informed Respondent that responsibility for the prosecution of the [patent] application had been transferred to another registered practitioner, the Client requested that the prototype for the invention be returned to the Client. Respondent, however, did not return the prototype to Respondent [sic] as requested. Accordingly, Respondent violated 37 C.F.R. § 11.115(d).

5. 37 C.F.R § 11.116(d) proscribes failing to surrender papers and property to which the client is entitled and to refund any advance payment of fee or expense that has not been earned or incurred upon termination of the practitioner-client relationship. The Client agreed to pay Respondent $1,500 in advance for patent legal services to be rendered. Respondent sent a retention letter noting the $1,500 fee to the Client, who promptly paid the fee. Respondent also sent the Client a September 18th invoice for $1,500, and described in the September 18th invoice the services rendered for the [patent] application as follows: 'Response to Office Action from USPTO and filing continued prosecution application.' However Respondent never earned this fee, because he never performed the services agreed to, and described by, the September 18th invoice. After the Client informed Respondent that his responsibility for the prosecution of the [patent] application had been transferred to another registered practitioner, Respondent did not return the $1,500 fee that the Client prepaid. Accordingly, Respondent violated 37 C.F.R § 11.116(d).

6. 37 C.F.R. § 11.804(c) proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation. Respondent agreed to represent the Client and file a response to the June 10, 2013, Final Office Action. He did not do so. Yet, Respondent sent the Client an invoice suggesting that he had filed the response and was continuing with the prosecution of the application. Then after the Client's son contacted Respondent regarding the status of the [patent] application, Respondent sent an e-mail to the son stating, 'I have everything in order for filing the response' when in fact, the [patent] application had become abandoned. Such statements were misleading and constitute conduct involving dishonesty and misrepresentation in violation of 37 C.F.R. § 11.804(c).

7. 37 C.F.R. § 11.801(b) proscribes knowingly failing to respond to lawful demands for information from a disciplinary authority. The OED sent Respondent an RFI that was never answered despite two subsequent communications prompting Respondent that his response to the RFI was due. The OED has provided documentation indicating that Respondent received all three pieces of correspondence. By failing to respond to the RFI and subsequent demands for a response, Respondent violated 37 C.F.R. § 11.801(b).

8. 37 C.F.R. § 11.804(d) proscribes conduct that is prejudicial to the administration of justice. Respondent failed to respond to the RFI. Respondent's conduct undermines the public's confidence in the profession's ability to regulate itself and is, therefore, prejudicial to the administration of justice in violation of 37 C.F.R. § 11.801(d).

¶8 The USPTO decision deemed Attorney Schwedler's actions "knowing and intentional" and stated that they caused "actual injury" to the client and warranted "a...