In The Matter Of Constant

390 Wis.2d 1, 937 N.W.2d 599 (2020)

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Nature of the Case

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Facts

D was admitted to practice law in Wisconsin in 1968. He has no prior disciplinary history. P filed a complaint alleging nine counts of misconduct. In 2009, M.B. hired D to represent her in a personal injury case. In 2010 and 2011, D disbursed 13 checks from his trust account at U.S. Bank in connection with M.B.'s claim. AD had not deposited any funds into the trust account for his representation of M.B. when he wrote the checks. D filed a lawsuit on behalf of M.B. and D settled M.B.'s claim for $175,000. Between June 14 and July 5, 2013, D disbursed six checks from his client trust account totaling $3,144 in connection with M.B.'s case. One of the checks was payable to D in the amount of $1,000. During this time period, D had not deposited any funds into his trust account for M.B.'s case. On July 9, 2013, D deposited the $175,000 settlement check into his trust account. He did not promptly notify M.B. in writing. D's settlement statement showed he was entitled to $50,000 in attorney's fees and $5,290.93 in costs. Between July 11, 2013, and October 10, 2013, D disbursed $57,300 in attorney fees and $2,028.71 for costs in the M.B. matter out of funds in his trust account. After these disbursements, the trust account held $178,359.13, of which $115,421.29 was attributable to M.B.'s case. During November and December of 2013, D transferred $16,200 from his trust account to his business account without identifying the client matter. D then withdrew $4,600 in cash from the trust account without identifying the purpose or client matter. On December 31, 2013, the trust account had a balance of $86,386.58. It should have held $115,421.29 in the M.B. matter alone. The $175,000 settlement amount was subject to numerous liens, and D negotiated settlements with the lienholders so that M.B. would recover a portion of the $175,000. On January 10, 2014, D disbursed a $21,882.35 trust account check to the federal government in the M.B. matter. The trust account held $70,108.53. Attorney Constant should have been holding $93,538.94 for the M.B. matter alone. On January 21, 2014, D issued a check for $40,000 to M.B. in partial payment of the settlement funds. At that point, his trust account should have held $53,538.94 in remaining funds for M.B., but the entire balance in the trust account was $19,021.16. On January 2, 2015, D's trust account had a balance of $363.11. On January 13, 2015, D deposited $800,000 into the trust account which was unrelated to the M.B. matter. Attorney Constant's trust account records show that on January 14, 2015, he disbursed $25,000 from the trust account to himself for reimbursement of costs in the M.B. matter. On January 16, 2015, D issued a $10,000 trust account check to M.B. Without the $800,000 deposit a few days earlier, which was not related to M.B.'s case, the trust account did not have enough funds to cover the $10,000 check. On February 7, 2015, D paid M.B. $4,540.58. As of the date that P filed its complaint, D retained $2,100.65 in settlement proceeds due to M.B. D made full restitution to M.B. On April 22, 2014, Dt transferred $15,000 in personal funds from his business account to his trust account, raising the balance of the trust account to $15,759.57. On October 29, 2014, D deposited $9,500.94 into his trust account in connection with the K.C. matter. After this deposit, the trust account had a balance of $9,548.98. On October 30, 2014, D withdrew $4,300 in attorney fees from his trust account and deposited that amount into his business account. The remaining balance in the trust account was then $5,248.98. On October 31, 2014, D wrote two trust account checks, one for $68.30 for a lien in the K.C. case and $1,467.32 to K.C. On November 3, 2014, D transferred $2,000 from his trust account to his business account. On November 4, 2014, D withdrew $500 in cash from the trust account. On November 5, 2014, D withdrew $1,500 in cash from the trust account, leaving a balance of $1,248.98. That same day, the Bank denied payment on D's October 31, 2014 check in the amount of $1,467.32 due to insufficient funds. On November 7, 2014, the Bank denied payment on the check again, as D had not deposited any additional funds into the trust account. D wrote a replacement check payable to K.C. in the amount of $1,467.32. The replacement check cleared the trust account on November 17, 2014. D made 13 cash withdrawals totaling $11,730 from his trust account. D made eight electronic transfers from the trust account into his business account. He had made other electronic transfers from the trust account to the business account since July 2013. D's transaction register did not include accurate balances following his transactions; the date, payee, and amount of all disbursements; a $500 transfer from the trust account to the business account; various checks that were issued; return of the K.C. checks that caused the overdrafts; the identity of all clients for whom D disbursed funds; and accurate dates for the transactions. The client ledgers did not consistently contain accurate dates, amounts of deposits, and disbursements nor did it consistently contain balances of funds remaining in the trust account pertaining to each client. The Bank informed P of the overdrafts. D's trust account and client records were inconsistent with each other and incomplete. After investigation, the Referee issued his report and finding that D committed eight counts of misconduct. The Referee concluded that a five-month suspension was an appropriate sanction. The Referee stated that D has avoided responsibility for his actions throughout P's investigation. D blamed the Quicken software program he used; he blamed unnamed employees at U.S. Bank who he claimed gave him incorrect instructions on how to operate his trust account. D excused his misconduct in that no one suffered any loss with 'no harm/no foul.' The Referee also recommended that D should be ordered to attend and successfully complete 12 hours of continuing legal education (CLE) courses approved in advance by P; at least six hours of which should be in P-approved courses relating to proper trust account management. D should also have his trust account monitored by the P for at least two years. P argues that a five-month suspension is inadequate due to the nature and severity of D's misconduct. P advocates for a suspension of a least one year.