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Referee recommends second license suspension for Appleton patent attorney

A referee is recommending that an Appleton patent attorney’s license be suspended a second time in less than a year.

The recommendation stems from a complaint the Office of Lawyer Regulation filed on June 16 alleging that Alan Stewart had committed three counts of misconduct, including practicing before the U.S. Patent and Trade Office despite his license being suspended. The OLR alleges he filed four patent applications in 2015 while his license was temporarily suspended for failing to respond to the OLR’s inquiries about his conduct in a separate disciplinary case.

Generally, lawyers may practice before the USPTO so long as their license is in good standing in at least one state. However, Stewart’s licenses in Kentucky and Minnesota had been administratively suspended since 2013 because he hadn’t paid dues, according to the OLR.

Moreover, Stewart, who graduated from the University of Wisconsin Law School in 2012, continued to be listed as the Wisconsin attorney of record on those applications and did not respond to the OLR’s inquiries about the matter, according to the complaint.

The OLR sought a 60-day suspension of Stewart’s license that would run concurrent with the nine-month suspension the court imposed on him in April for refusing to refund thousands of dollars in fees he had never earned.

Stewart failed to answer the OLR’s complaint, and the OLR sought a default judgment against Stewart. During a scheduling conference in August, Stewart, representing himself, did not object to the default judgment but asked permission to discuss what discipline was appropriate.

Stewart, in a brief, admitted to the three counts of misconduct but contended that the behavior was negligent and not intentional. Stewart asked that the court impose the 60-day license suspension concurrent with the nine-month suspension instead of tacking it onto the end of the nine-month suspension, which expires in January. The OLR agreed.

The referee in the case, John Murphy, agreed with Stewart and the OLR in a report filed on Sept. 22. He found that Stewart had committed all three counts of misconduct.

Murphy noted that three considerations supported his call for showing some leniency in Stewart’s case regarding two of the three counts of misconduct, although they did not explain his failure to respond to the OLR during its investigation. For one, Stewart had admitted to the three counts of misconduct alleged in the OLR’s complaint. Second, Stewart had alleged that he had misunderstood the terms of his license suspension and did not intend to disregard the court’s order. Third, Stewart had suggested that at the time of the misconduct, he had been suffering from depression. Stewart, though, did not present evidence to back up that final contention.

Murphy found the 60-day license suspension appropriate, noting that practicing law during a license suspension is a major violation of the Supreme Court Rules because it undermines the Wisconsin Supreme Court’s authroity as well as the suspension’s purpose of protecting the public and deterring future rule violations.

Tacking on the 60-day suspension to Stewart’s current suspension is justified, Murphy wrote, but a concurrent suspension is more appropriate given the facts in the case.

Stewart may choose to appeal Murphy’s report. The Wisconsin Supreme Court will review Murphy’s findings and issue a final decision in the matter.

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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