Office of Lawyer Regulation v. Hudec (In re Hudec)

391 Wis.2d 150

942 N.W.2d 327

2020 WI 37

In the MATTER OF the DISCIPLINARY PROCEEDINGS AGAINST Patrick J. HUDEC, Attorney at Law:

Office of Lawyer Regulation, Complainant, v. Patrick J. Hudec, Respondent.

No. 2019AP1173-D

Supreme Court of Wisconsin.

Opinion Filed: April 16, 2020

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 We review a report filed by Referee James J. Winiarski, accepting a stipulation executed by Attorney Patrick J. Hudec and the Office of Lawyer Regulation (OLR), in which Attorney Hudec pled no contest to four counts of professional misconduct and agreed that the allegations of the OLR's complaint were established by clear, satisfactory, and convincing evidence. Consistent with the terms of the stipulation the referee recommends we suspend Attorney Hudec's law license for 60 days and require Attorney Hudec to attend an OLR trust account seminar within one year. The referee also recommends we order Attorney Hudec to pay the full costs of this proceeding, which total $3,991.10 as of January 29, 2020. The OLR did not request restitution and no restitution is ordered.

¶2 We adopt the referee's findings of fact and conclusions of law as derived from the parties' stipulation. We agree that a 60-day suspension is appropriate and we direct Attorney Hudec to attend an OLR trust account seminar within one year of the date of this order as a condition of his continued practice of law. We impose the full costs of this proceeding on Attorney Hudec.

¶3 Attorney Hudec was admitted to the practice of law in Wisconsin in 1979. As the referee observed, Attorney Hudec has an extensive disciplinary history.

• In November 1989, Attorney Hudec consented to a private reprimand for misconduct that included accepting a representation that was adverse to a former client and which constituted a conflict of interest. Private Reprimand No. 1989-27 .

• In March 1993, Attorney Hudec consented to a second private reprimand for misconduct that included entering into a business transaction that was adverse to the financial interests of a client; engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and withholding material evidence in failing to cooperate with the investigation of the Board of Attorneys Professional Responsibility. Private Reprimand No. 1993-4 (electronic copy available at https://compendium.wicourts.gov/app/raw/002076.html ).

• In May 2001, a third consensual private reprimand was imposed on Attorney Hudec for misconduct that included failing to obtain written consent to a potential conflict of interest in representing two clients and drafting a letter that contained a false statement of fact. Private Reprimand No. 2001-15 .

• In 2008, Attorney Hudec received a consensual public reprimand for misconduct that included failing to act with reasonable diligence; failing to communicate with his client; and failing to cooperate with the OLR's investigation. Public Reprimand of Patrick J. Hudec, No. 2008-2 (electronic copy available at https://compendium.wicourts.gov/app/raw/002005.html ).

• In July 2014, we publicly reprimanded Attorney Hudec for four counts of misconduct to which Attorney Hudec had stipulated, including breach of his duty of competence, submitting a brief with inappropriate facts, and engaging in an ex parte communication. In re Disciplinary Proceedings Against Hudec, 2014 WI 46, 354 Wis. 2d 728, 848 N.W.2d 287.

• On April 18, 2019, this court suspended Attorney Hudec's Wisconsin law license for 60 days, effective May 30, 2019, for six counts of misconduct to which Attorney Hudec pled no contest. In re Disciplinary Proceedings Against Hudec, 2019 WI 39, 386 Wis. 2d 371, 925 N.W.2d 540. His misconduct involved shortcomings in his fee agreements; lack of diligence; failure to communicate with clients; and failure to comply with discovery rules.

¶4 This disciplinary matter commenced on June 27, 2019, when the OLR filed a complaint against Attorney Hudec alleging four counts of professional misconduct. Referee Winiarski was appointed on August 7, 2019. Attorney Hudec failed to file a timely answer in this matter, so on October 1, 2019, the OLR sought a default judgment.

¶5 On October 28, 2019, Attorney Hudec and the OLR entered into a stipulation in which Attorney Hudec pled no contest to all the allegations of misconduct. In the stipulation Attorney Hudec stated that his delays in responding to and/or cooperating with the OLR were medically related as a result of a lengthy illness during the summer of 2019, and major back surgery in January of 2018. The parties confirmed that the stipulation was not the result of plea bargaining but reflects Attorney Hudec's voluntary decision not to contest this matter. Attorney Hudec represents and verifies that he fully understands the allegations to which he stipulated in this disciplinary matter; he fully understands his right to contest this matter; he fully understands the ramifications of his entry into the stipulation; he fully understands that he has the right to consult counsel; and that his entry into the stipulation was made knowingly and voluntarily.

¶6 The referee requested briefing from the parties regarding Attorney Hudec's previous misconduct; caselaw supporting the recommended 60-day license suspension; and evidence and/or agreement regarding Attorney Hudec's medical conditions. After consideration of the OLR's supplemental brief, the referee issued his report on January 9, 2020. No appeal from that report was filed so we consider this matter pursuant to SCR 22.17(2).¹

¶7 The facts found by the referee derive from the parties' stipulation. On January 17, 2017, the OLR received a notice of an overdraft on Attorney Hudec's trust account. The OLR subsequently received notice of several additional overdrafts. A review of Attorney Hudec's trust account statements revealed that Attorney Hudec disbursed funds from his trust account dozens of times to pay personal and/or law firm expenses. During the same period of time, Attorney Hudec made trust account checks payable to "cash" and/or made cash withdrawals from his trust account on multiple occasions.

¶8 Attorney Hudec then failed to cooperate with the OLR. On September 6, 2017, the OLR sent a letter to Attorney Hudec requesting that he submit a written response to its investigation. Attorney Hudec did not timely respond. He requested extensions of time to respond, but then repeatedly failed to meet the extended deadlines and failed to provide the OLR with the requested information despite the OLR's multiple attempts to contact him. In January 2018, at the OLR's request, this court issued an order to show cause as to why Attorney Hudec's license should not be temporarily suspended for failing to cooperate with the OLR's investigation. This apparently prompted Attorney Hudec to provide the OLR with enough information, so at the OLR's request, the motion was withdrawn.

¶9 In June 2018, the OLR sought additional information from Attorney Hudec and again, he failed to timely respond, requested extensions of time, and then again failed to respond. In September 2018, at the request of the OLR, we issued another order requiring Attorney Hudec to show cause why his law license should not be temporarily suspended for failure to cooperate with the OLR investigation. Attorney Hudec requested and received two extensions of time from this court but nonetheless failed to timely respond to our order. On November 8, 2018, Attorney Hudec finally provided the OLR with sufficient information so the OLR withdrew its motion.

¶10 The referee concluded that Attorney Hudec committed four counts of professional misconduct:

• Count 1 : By depositing and retaining funds belonging to himself or his law firm in his trust account, Attorney Hudec violated SCR 20:1.15(b)(3).²

• Count 2 : By making trust account checks payable to "cash" and by making cash withdrawals from his trust account, Attorney Hudec violated SCR 20:1.15(f)(2)a.³

• Count 3 : By having trust account checks returned for insufficient funds, and therefore disbursing funds from his trust account without the funds being available for disbursement, Attorney Hudec violated SCR 20:1.15(f)(4)a.⁴

• Count 4 : By willfully failing to provide the OLR with a timely initial written response to the OLR Matter no. 2017MA1283, and by willfully failing to provide the OLR a timely response to its June 26, 2018 request for additional information, Attorney Hudec violated SCR 22.03(2)⁵ and 22.03(6),⁶ enforceable via SCR 20:8.4(h).⁷

¶11 Determining appropriate discipline for professional misconduct involves: (1) the seriousness, nature, and extent of the misconduct; (2) the level of discipline needed to protect the public, the courts, and the legal system from repetition of the attorney's misconduct; (3) the need to impress upon the attorney the seriousness of the misconduct; and (4) the need to deter other attorneys from committing similar misconduct. In re Disciplinary Proceedings Against Hammis, 2011 WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884.

¶12 It is clear from the report that the referee...