A Wausau lawyer’s third disciplinary action is coming in the form of a public reprimand and more than $26,000 in costs.
The Wisconsin Supreme Court on Wednesday ruled in an Office of Lawyer Regulation case against Jeffery J. Drach of Drach Elder Law Center in Wausau.
In 2018, the OLR charged Drach with three counts of misconduct for allegedly double-billing a couple who had hired him to handle estate-planning affairs, failing to enter a written fee agreement and violating a trust-account rule. The OLR later amended the complaint to include a fourth violation for working on another client’s estate-planning and trust-administration matters without a written fee agreement.
Drach denied the allegations at first, but he later admitted to all four counts of misconduct in a stipulation with the OLR. He also agreed to make a $1,540 restitution payment to one of the clients.
However, a referee dismissed the charge of double-billing. He recommended a public reprimand, payment of full costs of the proceeding and an additional restitution payment of $1,204 plus interest as punishment for the remaining three counts of misconduct.
Drach then appealed the recommendation. His attorney, Dean R. Dietrich of Dietrich VanderWaal, argued that Drach’s misconduct only warranted a private reprimand, the costs should be reduced by 50% and that Drach should not have to pay the additional restitution.
In Drach’s view, the counts of misconduct were simply “technical” violations of ethics rules. He said the reason he didn’t enter into a fee agreement with the clients was that he feels “care and compassion” for families dealing with gravely ill loved ones.
The OLR cross-appealed and argued that the referee should not have dismissed one of the four misconduct charges. The agency advocated for a public reprimand and an award of full costs, but did not seek additional restitution.
The state Supreme Court agreed that the fourth charge should be dismissed, writing that it appeared undisputed that it was a clerical mistake and noting that Drach reimbursed the family for the overpayment.
The justices found a public reprimand to be the appropriate punishment for the remaining violations. The opinion said Drach’s failure to enter a fee agreement with his clients was the result of misconduct, not compassion.
“Illness, death, and the family turmoil associated with these events are integral parts of Attorney Drach’s practice,” the opinion said. “They do not give him an excuse to bypass explicit ethical requirements.”
The high court called Drach’s request for a 50% reduction in costs “undeveloped” and ordered him to pay the full costs of the proceeding, which came to $26,449.93.
“His request for a 50 percent reduction came only at oral argument, unsupported by any explanation as to why this figure is reasonable beyond a claim that the OLR engaged in overbroad litigation against him— a perplexing argument given his stipulation to all of the counts that the OLR charged,” the opinion said.
The court did not require Drach to pay any additional restitution, citing the OLR’s decision not to seek restitution beyond what Drach had already paid.
Drach’s previous disciplinary history includes a public reprimand in 2002 and a private reprimand in 2008.
Dietrich, who spoke to the Law Journal about Drach’s case in the past, did not immediately return a message for comment on the decision.
Justice Ann Walsh Bradley did not participate in the decision on Wednesday.Follow @WLJReporter