Office of Lawyer Regulation v. Buchanan (In re Disciplinary Proceedings Against Brandon Buchanan), 2017AP1899-D
| Decision Date | 19 April 2018 |
| Docket Number | No. 2017AP1899-D,2017AP1899-D |
| Citation | 381 Wis.2d 64,2018 WI 41,911 N.W.2d 122 |
| Parties | In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Brandon BUCHANAN, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Brandon Buchanan, Respondent. |
| Court | Wisconsin Supreme Court |
ATTORNEY disciplinary proceeding. Attorney's license suspended.
¶ 1 We review Referee Allan E. Beatty's recommendation that the court declare Attorney Brandon Buchanan in default and suspend his Wisconsin law license for a period of 60 days for professional misconduct in connection with his work on one client matter and his non-cooperation with the Office of Lawyer Regulation's (OLR) investigation into that misconduct. The referee also recommended that Attorney Buchanan be required to make restitution to a former client in the amount of $335, and to pay the full costs of this proceeding, which total $410.44 as of February 12, 2018.
¶ 2 Because no appeal has been filed, we review the referee's report pursuant to Supreme Court Rule (SCR) 22.17(2). After conducting our independent review of the matter, we agree with the referee that, based on Attorney Buchanan's failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. We also agree with the referee that Attorney Buchanan's professional misconduct warrants a 60–day suspension of his Wisconsin law license. Finally, we agree with the referee that Attorney Buchanan should be ordered to pay the full costs of the proceeding, as well as $335 in restitution.
¶ 3 Attorney Buchanan was admitted to practice law in Wisconsin in 2014. His law license is currently subject to administrative and temporary suspensions. It is administratively suspended due to his failure to pay mandatory bar dues, failure to file a trust account certification, and failure to comply with continuing legal education requirements. It is temporarily suspended due to his failure to cooperate in the OLR's investigation of this matter.
¶ 4 On September 28, 2017, the OLR filed the current complaint against Attorney Buchanan. The complaint alleges five counts of professional wrongdoing. The following facts are taken from the OLR's complaint.
¶ 5 In 2014, S.L.L. filed for divorce from her husband. In September 2015, Attorney Daniel R. Freund referred S.L.L. to Attorney Buchanan to represent her and her husband, K.C.L., in a Chapter 7 bankruptcy action. In November 2015, the L.s hired Attorney Buchanan and paid him a $1,835 advanced fee, which included funds to pay the $335 bankruptcy filing fee. Consistent with a request by S.L.L., Attorney Freund asked Attorney Buchanan to keep him informed about the bankruptcy proceedings in light of the ongoing divorce action.
¶ 6 Attorney Buchanan did not deposit the L.s' payment into a trust account; indeed, he did not have a client trust account. The retainer agreement between the L.s and Attorney Buchanan stated that he would deposit the fee into his general account.
¶ 7 Attorney Buchanan failed to keep in regular contact with the L.s. He did not respond to the L.s' requests for information for a number of months after his retention. In late February 2016, Attorney Buchanan communicated with the L.s, but his responsiveness was short-lived. In May 2016, he again stopped responding to the L.s' requests for information, which included e-mails and telephone calls.
¶ 8 Attorney Buchanan performed some legal work in the matter, but never filed a Chapter 7 bankruptcy petition for the L.s.
¶ 9 In June 2016, the L.s fired Attorney Buchanan and instructed him to deliver their file to Attorney Freund. Attorney Buchanan did not deliver the L.s' file to Attorney Freund, or refund any unearned portion of their advanced fee, or provide them with an accounting.
¶ 10 Both Attorney Freund and S.L.L. filed grievances with the OLR against Attorney Buchanan. The OLR wrote to Attorney Buchanan informing him of the grievances and requesting a response. Attorney Buchanan never responded. In January 2017, the OLR personally served Attorney Buchanan at his home address with correspondence from the OLR asking him to respond to Attorney Freund's and S.L.L.'s grievances. Attorney Buchanan did not respond.
¶ 11 In February 2017, based on an OLR motion, this court ordered Attorney Buchanan to show cause why his license should not be suspended for failure to cooperate with the OLR's investigation. Attorney Buchanan did not respond. On April 10, 2017, this court temporarily suspended Attorney Buchanan's license.
¶ 12 The OLR's complaint alleged the following counts of misconduct with respect to Attorney Buchanan's representation of the L.s.
¶ 13 On November 9, 2017, the OLR filed a motion for default judgment asking the referee to determine that the OLR had properly served Attorney Buchanan with its complaint by personal service, and that Attorney Buchanan had defaulted by failing to timely file an answer to the complaint. The motion sought an order for default judgment and the issuance of a report making findings of fact and conclusions of law consistent with the allegations in the complaint.
¶ 14 The referee issued an order advising the parties that the OLR's default judgment motion would be considered at an upcoming scheduling conference. Attorney Buchanan did not participate in the scheduling conference.
¶ 15 The referee filed his report on January 24, 2018, recommending that this court grant the OLR's motion for default judgment. The referee deemed the allegations of the OLR's complaint established. The referee recommended that this court suspend Attorney Buchanan's Wisconsin law license for 60 days; order him to pay the full costs of this proceeding; and order him to pay $335 in restitution to the L.s.¶ 16 Attorney Buchanan has not filed an appeal from the referee's report and recommendation. Accordingly, our review proceeds pursuant to SCR 22.17(2).
¶ 17 A referee's findings of fact are affirmed unless clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction it sees fit, regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 18 We agree with the referee that Attorney Buchanan should be declared in default. Although the OLR effected personal service of its complaint, and although Attorney Buchanan was given notice of the hearing on the OLR's motion for default judgment, he failed to appear or present a defense. He has, therefore, defaulted. We also accept the referee's findings of fact based on the allegations of the complaint, and agree with the referee that those findings support a determination of misconduct on the five counts alleged in the OLR's complaint.
¶ 19 We further agree that a 60-day suspension of Attorney Buchanan's license to practice law in Wisconsin is an appropriate sanction for his misconduct. Although no two disciplinary matters are precisely the same, a 60-day suspension is generally consistent with the sanction imposed in somewhat similar cases. See, e.g., In re Disciplinary Proceedings Against Kingsley, 2006 WI 5, 287 Wis. 2d 91, 708 N.W.2d 321 (); see also In re Disciplinary Proceedings Against Collins, 2004 WI 9, 268 Wis .2d 441, 674 N.W.2d 566 (...
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