Professional Liability — trust account misappropriation – misrepresentation — sanction and costs

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Wisconsin Supreme Court

Civil

Professional Liability — trust account misappropriation – misrepresentation — sanction and costs

A six-month suspension of an attorney’s law license is warranted, as well as restitution to Wisconsin Lawyers’ Fund for Client Protection, rather than revocation sought by the Office of Lawyer Regulation, where without his knowledge the attorney’s spouse/office manager misappropriated $30,000 held in trust pursuant to the administration of an estate, but there is no evidence that the attorney intimidated his client or made knowing misrepresentations to the probate court.

“We readily acknowledge that circumstantial evidence may support a finding of misrepresentation. See, e.g., In re Disciplinary Proceedings Against Marks, 2003 WI 114, 265 Wis. 2d 1, 665 N.W.2d 836. Here, however, the referee considered the extensive documentary and testimonial evidence and found that Attorney Goluba did not know his wife had misappropriated the money. In making this finding, the referee referenced and considered the documentary evidence; it cannot be said that the referee did not consider the voluminous record prepared by the OLR.… Even if the referee’s finding that Attorney Goluba did not endorse some of these checks is error, it does not make the referee’s finding regarding Attorney Goluba’s knowledge of the misappropriation clearly erroneous. Considering the proper standard of misrepresentation applicable in disciplinary cases, together with the referee’s clear factual findings, we accept the referee’s factual findings, but reject the conclusion that Attorney Goluba violated SCR 20:8.4(c) as alleged in Count 1 because the referee found Attorney Goluba lacked actual knowledge of the misappropriation when he made the representations at issue to the court.”

The OLR additionally appeals the recommended sanction and seeks full costs of $45,676.

“We reject the OLR’s request for revocation. Attorney Goluba has, indeed, committed serious misconduct that warrants suspension of his license. However, the referee decisively rejected the OLR’s assertion that Attorney Goluba had ongoing knowledge of the misappropriation of funds or that he manipulated R.L. into writing him a check to cover that misappropriation. Upon learning of the misappropriation, Attorney Goluba promptly took steps to ensure The Salvation Army was paid. His mother-in-law, R.L., has disavowed any claim that she was manipulated into paying Attorney Goluba. Accordingly, the most serious ethical charges against Attorney Goluba fail. …

“Although we do not reduce costs based solely on the fact that a lawyer prevailed on certain charges, here, the OLR opted to engage in a thorough, time-consuming, and ultimately very expensive endeavor to convince the referee of Attorney Goluba’s ongoing knowledge of and involvement with the misappropriation of client funds. This effort was unsuccessful.”

Instead, we impose one-half of the costs of this proceeding.

2010AP1348-D In the Matter of Disciplinary Proceedings Against Goluba, per curiam

Attorneys: For appellant Office of Lawyer Regulation: Sheryl St. Ores, Madison; For respondent: David A. Goluba, Ripon