2007AP1281-D OLR v. Hupy

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Professional Responsibility
Public reprimand

Where attorney Michael F. Hupy sent mass mailings that contained a false statement, a public reprimand is appropriate.

“We conclude that the facts as found by the referee show that Attorney Hupy did violate SCR 20:8.4(c) by mailing to prospective clients in 2006 a brochure containing the statement that an attorney, who was clearly Attorney Hausmann, ‘is still practicing law pending his appeal.’”

“We first address Attorney Hupy’s contention that the brochure article did not identify Attorney Hausmann by name. Although the article did not use Attorney Hausmann’s name, it clearly identified him by giving the address of the Hausmann-McNally law firm and referring to him as the attorney who had pled guilty to defrauding personal injury clients. Indeed, Attorney Hupy’s opening brief to this court acknowledged that the article referred to Attorney Hausmann.”

“We also do not agree with Attorney Hupy’s claim that he cannot be disciplined for using the article in 2006 because the article contained only a technical inaccuracy. We acknowledge that the ‘still practicing’ statement in the article was accurate when it was first disseminated in 2003. Attorney Hupy acknowledges, on the other hand, that the statement was not true when the article was reprinted verbatim in 2006 because by that time Attorney Hausmann’s criminal appeal had been completed and his license to practice law in Wisconsin had been suspended. The statement was clearly a misrepresentation of fact when it was made again in 2006. That it was a repetition of a formerly true statement does not change its nature as a false statement in 2006.”

“We further reject Attorney Hupy’s argument that the false statement cannot be a violation of SCR 20:8.4(c) because it was not substantial enough and did not relate to Attorney Hupy’s fitness to practice law. The statement in the article made in 2006 asserted that Attorney Hausmann was still practicing law. This is not a de minimis accusation. Since Attorney Hausmann’s license to practice law in this state was suspended at that time, Attorney Hupy’s statement was an accusation that Attorney Hausmann was violating this court’s suspension order, a serious allegation of professional misconduct.”

“Moreover, without deciding whether a misrepresentation must relate to an attorney’s fitness to practice law in order to be a violation of SCR 20:8.4(c), we conclude that Attorney Hupy’s misrepresentation here does implicate his fitness to practice law. Thus, even under the standard Attorney Hupy desires, his statement in the brochure article violates the rule. He made a clearly false statement about one of his primary competitors in a brochure that was part of a direct mail advertising package sent to a targeted audience of potential clients. Making false statements about a competing lawyer in order to obtain more clients for one’s self clearly implicates one’s fitness to exercise the privilege of practicing law in this state.”

2007AP1281-D OLR v. Hupy

Per Curiam.

Attorneys: For Appellant: Levinson, Jeremy P., Milwaukee; Peltz, Joseph M., Milwaukee; For Respondent: Spoke, Julie Marie, Madison

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