Selecting just the right item to write about is not easy. This is not going to be an instance of accomplishing it. This is going to be an instance of writing something just because I truly find the outcome astounding (or at least I found the outcome astounding when I first read a blurb about the situation, but now having read the full Court opinion I’m less astounded).
A little less than a week ago, the Wisconsin Supreme Court released an opinion in which it accepted a lawyer’s effort at consenting to the revocation of his law license. An outcome that is, as I understand Wisconsin procedure, technically not a disbarment, but also not quite the same thing as the surrender of a law license that we have here in Tennessee.
The headlines/blurbs I encountered as a first way of hearing about the story were of the Law360 variety — Atty’s Scanty Records Preclude Client Repayment, Court Says. The disheartening takeaway one gets from reading that story reporting on the opinion is that a lawyer got away with trust account malfeasance by failing to keep the records that would be necessary to prove up the wrongdoing. Knowing how tough disciplinary authorities can be on trust accounting violations, this was one where I had to find the time to read the actual opinion.
You can do so right here. If you want to do so right now, I’ll wait until you get back.
Ok. So now that you’ve read it too, what about the one client and his $1,500? The second part of the complaint/investigation?
Attorney Walsh agreed to represent O.B. in attempting to have his felony convictions expunged or to seek a pardon for those convictions. According to his fee agreement with O.B., Attorney Walsh accepted an advanced flat fee of $1,500 at or near the time of entering into the representation and deposited the advanced fee into his law firm’s business account. Attorney Walsh claimed to the [Office of Lawyer Regulation] that he had done work on O.B.’s behalf and was able to describe some of that work. According to the OLR’s summary Attorney Walsh promised O.B. in July 2015 that he would be following up on a lead that required research, but warned that O.B. would likely be out of luck if the research did not yield favorable results. Attorney Walsh, however, failed to communicate the results of his research to O.B. He then failed to provide O.B. with any of the notices that were required when an attorney placed an advanced fee into the attorney’s business account and utilized the alternative advanced fee procedure outlined in [a particular Wisconsin rule]. Indeed, Attorney Walsh failed to provide O.B. with a final accounting that showed how he had earned the $1,500 flat fee.
For a while I thought I could manage to work through the giant, headline-grabbing angle given that none of the clients associated with any of the things involving fluctuations in the bank records contend they are out money and since there weren’t sufficient records available to truly prove what was what, the Wisconsin disciplinary counsel opted not to seek restitution. so while not quite “no harm, no foul,” but “definitely a foul, and he’s offering to give up his license without a fight so we’ll just take it and be done with it.” Though it does appear that the lawyer first tried an approach that would be more like Tennessee’s law license surrender approach by first filing a petition for the voluntary resignation of his license. Like surrender here, the existence of a pending disciplinary investigation can thwart that in Wisconsin so he tacked to filing a petition for consensual revocation.
But, there was at least that one client standing right there in these proceedings saying that they were out $1,500 as a result of this character. How could the Wisconsin disciplinary counsel not pursue getting that person their money back? And how could the Wisconsin Supreme Court manage to shrug its shoulders at that outcome?
Similarly, given the lack of billing records, the [Office of Lawyer Regulation] cannot determine with any reasonable certainty that [the client] should receive a refund of any particular amount of his advanced fee from Attorney Walsh.
Talk about the opposite of a “tie goes to the runner,” kind of ruling.
Which leads me back full circle to being astounded at that outcome up Wisconsin-way. It’s an outcome that sends a really clear – but unfortunate – message to Wisconsin attorneys that are truly willing to just disregard obligations — make sure you don’t keep records as well.