Attorney Discipline — Part II

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What does it take for attorneys in Wisconsin to have their license suspended or revoked?

It depends on a variety of factors, according to Office of Lawyer Regulation Director Keith Sellen, including the severity of the action, aggravating circumstances and previous sanctions.

“There really is no set of benchmarks when it comes to what it takes, but a lot of times there is some application of precedent,” said Sellen.

In 2007, violations varied greatly for the 43 lawyers who were issued a dozen different degrees of discipline by the Supreme Court ranging from public reprimand to disbarment.

Year to year, the Office of Lawyer Regulation (OLR), the appointed referee and the court strive for consistency when assigning the appropriate level of punishment, but no two cases are precisely the same.

Out of Practice

Last year, nine attorneys lost their Wisconsin licenses because of misconduct, all of which involved significant ethical or criminal indiscretions.

In the majority of cases, attorneys had been previously disciplined or consensually agreed to revocation. In two instances, attorneys from Iowa and Illinois had their licenses reciprocally revoked in Wisconsin.

Attorney Mark J. Pierquet consented to revocation based on 32 alleged counts of misconduct in 12 different client matters. Several charges pertained to Pierquet’s inability to properly protect client interests and failure to keep clients informed.

In addition to the revocation, the court required Pierquet, whose license was suspended at the time of the ruling, to repay more than $14,000 to the State Bar of Wisconsin Lawyers’ Fund for Client Protection.

Similarly, attorney Daniel R. Grade stipulated to 36 counts of alleged misconduct and his license had been suspended since 2004.

In the ruling, referee Stanley F. Hack noted that a recommendation for revocation stemmed from “very serious” allegations including neglect of many probate matters, misrepresentations to clients, failure to cooperate with the OLR, and a lack of effort to return funds owed to clients.

Grade also admitted to abandoning his law practice without any notification to clients or the courts and, as a result, breached his fiduciary duties to his clients, the court and the OLR.

A history of disciplinary action for professional misconduct was not a precursor for revocation. Prior to 2006, attorney Arthur L. Schuh had practiced without incident since his admission in 1982.

But he pled guilty to federal charges of conspiring to distribute cocaine and knowingly possessing a firearm in furtherance of the drug trafficking crime. Schuh was sentenced to 10 years in prison and his license was summarily suspended in 2006 and revoked in 2007.

Though he was never found to have ever engaged in client misrepresentation during his legal career, the court and Schuh stipulated that his actions reflected “adversely on his honesty, trustworthiness and fitness as a lawyer.”

Temporary Setback

While revocations revealed extreme levels of wrongdoing, the majority of disciplined attorneys received significantly less severe penalties in 2007.

Of the 31 attorneys who were suspended, almost half received sanctions of three-months or less for an array of indiscretions including misrepresentation in personal injury cases, trust account violations and Continuing Legal Education credit delinquency.

The most common suspension was 60 days, which was imposed on nine attorneys.

In all but two of the 60-day suspensions, OLR alleged fewer than 10 counts of misconduct and only one attorney had previously been suspended, though four had received reprimands.

OLR Director Keith Sellen said that generally, past indiscretions are taken into account when recommending proper punishment.

Attorney James J. Ermert had been cited on five previous occasions prior to his second 60-day suspension in 2007. Ermert, who sought a public reprimand, was charged with failure to act with reasonable diligence and promptness in representing a client in a divorce proceeding and, in a separate case, failure to file a quit claim deed in a timely fashion.

In its decision, the court ruled that the 60-day sanction was appropriate, given the level of neglect in the two client matters were “serious failings,” coupled with Ermert’s “rather extensive” prior disciplinary history.

Slightly more substantial suspensions often included allegations of willful fraud and deception. Four attorneys received 90-day suspensions and as many earned six-month suspensions.

Attorney Kristin J. Gernetzke was suspended six months for improper and undocumented billings submitted to the Office of the State Public Defender. Though she stipulated to the suspension, the OLR found Gernetzke was paid more than $5,000 for time she termed “develop legal theory” while working on 26 cases for the SPD.

The parties agreed that restitution be paid to OLR and potentially to the law firm O’Flaherty, Heim & Egan, Ltd., where Gernetzke was fired from in 2005 for her actions.

Long-Term Trouble

A handful of actions warranted multi-year suspensions, many of which involved criminal conduct or reluctance to cooperate with OLR.

Of the seven attorneys who received suspensions of 18 months or more, five were convicted of or pled guilty to criminal charges.

Attorney Michael A. Gral was sentenced to two years in prison for federal mail fraud. His law license was subsequently suspended for three years.

Both Gral and OLR stipulated that the action reflected “adversely on the lawyer’s honesty, trustworthiness or fitness,” but it was also noted that Gral had no history of discipline; he fully cooperated with OLR throughout the proceedings and expressed remorse for his actions.

That was not the case for attorney Patrick Michael Cooper who was charged with 33 counts of misconduct by OLR, including the issuance of at least 17 bad checks totaling more than $25,000 and client misrepresentation.

Though he also had no history of discipline, Cooper failed to cooperate with OLR during the investigation, as noted by the court in its opinion. Attorney Cooper’s own dealings with the OLR are a significant aggravating factor, stated the court, which considered revocation.

As the referee observed: “In simple terms, [Attorney Cooper] attempted to obstruct and thwart the OLR’s investigation through lies and ‘stonewalling.’”