Office of Lawyer Regulation v. Harris (In re Disciplinary Proceedings Against Benjamin J. Harris)

396 Wis.2d 374

956 N.W.2d 891

2021 WI 31

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Benjamin J. HARRIS, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Benjamin J. Harris, Respondent.

No. 2020AP1082-D

Supreme Court of Wisconsin.

Opinion Filed: April 6, 2021

Motion for Reconsideration Filed April 15, 2021

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 We review the report of the referee, the Honorable Jeffrey A. Kremers, which recommends that the court suspend Attorney Benjamin J. Harris' license to practice law in Wisconsin for 60 days and order him to pay the full costs of this disciplinary proceeding, which are $1,616.83 as of February 8, 2021. Prior to the referee issuing his report, Attorney Harris and the Office of Lawyer Regulation (OLR) entered into a stipulation in which Attorney Harris pled no contest to the four counts of misconduct alleged in the OLR's complaint. Since neither party has appealed from the referee's report and recommendation, our review proceeds under Supreme Court Rule (SCR) 22.17(2).

¶2 Upon our independent review, we adopt the referee's findings of fact and conclusions of law with respect to Attorney Harris' misconduct. We agree that the misconduct warrants a 60-day suspension of Attorney Harris' license to practice law in Wisconsin. The OLR did not seek restitution, and we do not order restitution. As is our usual custom, we order Attorney Harris to pay the full costs of this disciplinary proceeding.

¶3 Attorney Harris was admitted to practice law in Wisconsin in 1996 and practices in the Milwaukee area. He has been previously disciplined on six prior occasions.¹ In 2007, he was privately reprimanded for failing to pursue the resolution of a debt collection matter; failing to keep a client informed of the status of the debt collection matter; failing to proceed with a landlord matter or file a claim on behalf of his client for one year; and failing to keep a client informed of the status of that matter. Private Reprimand No. 07-04 (electronic copy available at https://compendium.wicourts.gov/app/raw/001931.html). In 2008, Attorney Harris was publicly reprimanded for misconduct consisting of entering into a land contract with a client without written consent; failing to respond to a motion to amend a complaint and failing to attend the motion hearing; failing to inform his client of the status of the case and respond to the client's request for information; failing to timely act in furtherance of a resolution of a client's equalization payment; failing to respond to the client's telephone calls or notify the client of a proposed stipulation and order in an upcoming hearing; and failing to promptly return the client's file to him or successor counsel. Public Reprimand of Benjamin J. Harris, No. 2008-03 (electronic copy available at https://compendium.wicourts.gov/app/raw/002029.html).

¶4 In 2010, Attorney Harris' license was suspended for 60 days for misconduct consisting of failing to keep a client informed of the status of litigation; failing to attend a damages hearing and a motion hearing; failing to notify the client of the status of the case; failing to notify the client of the dismissal of the appeal; and failing to advise the client of an order granting a motion to enforce a judgment. In re Disciplinary Proceedings Against Harris, 2010 WI 9, 322 Wis. 2d 364, 778 N.W.2d 154.

¶5 In 2012, Attorney Harris was privately reprimanded for failing to have a written fee agreement and depositing a client's unearned advanced fee payment directly into his business account. Private Reprimand No. 2012-20 (electronic copy available at https://compendium.wicourts.gov/app/raw/002515.html).

¶6 In 2013, Attorney Harris' license was suspended for five months for misconduct consisting of failing to timely file a judgment of divorce and promptly prepare a QDRO; failing to respond to a client's emails and telephone calls; failing to notify a client of his license suspension; failing to consult with a client regarding the method and means of pursing the client's claim; failing to advise a client of the dismissal of a case; and failing to respond in a timely fashion to the OLR's written request for information. In re Disciplinary Proceedings Against Harris, 2013 WI 8, 345 Wis. 2d 239, 825 N.W.2d 285. In 2018, Attorney Harris received a consensual public reprimand for failing to act with reasonable diligence and promptness in representing a client and failing to keep a client reasonably informed about the status of a matter. Public Reprimand of Benjamin J. Harris, No. 2018-1 (electronic copy available at https://compendium.wicourts.gov/app/raw/002985.html).

¶7 On June 25, 2020, the OLR filed a complaint against Attorney Harris alleging four counts of misconduct arising out of two client matters. The first client matter involved Attorney Harris' representation of T.P. Attorney Harris was retained to defend T.P. in three lawsuits. Attorney Harris' conduct in two of those matters formed the basis for the misconduct charged in the OLR's complaint.

¶8 On December 14, 2017, T.P. retained Attorney Harris to defend him and a company he owned and operated in a small claims lawsuit that involved claims of breach of contract and unjust enrichment, initiated by Ramos Drywall, LLC. T.P. had hired Ramos Drywall as a subcontractor on a project, and Ramos Drywall claimed it had not been paid.

¶9 The initial return date for the small claims case was set for December 18, 2017. A small claims publication summons and notice in the case provided that defendants may have the option of filing an answer before the court date to avoid the necessity of a personal appearance on December 18, 2017. On December 14, 2017, Attorney Harris filed an answer and affirmative defenses, but he did not confirm that his filing obviated the need to personally appear on December 18, 2017. Attorney Harris did not personally appear on that date.

¶10 On December 18, 2017, a default judgment was entered against T.P. for $2,200 based on Attorney Harris' failure to personally appear. T.P. learned of the entry of default judgment in late December 2017 when he checked Wisconsin Circuit Court Access. He notified Attorney Harris that a default judgment had been entered.

¶11 On January 24 and 31, 2018, T.P. messaged Attorney Harris asking for a response; asking for the case status; expressing his frustration at the lack of communication; and saying he felt Attorney Harris was "blowing me off." On February 7, 2018, T.P. sent Attorney Harris an email saying he had not heard from the attorney and that he had emailed and texted about ten times trying to get a response.

¶12 On February 14, 2018, T.P. emailed Attorney Harris again asking about the case status. On February 20, 2018, Attorney Harris filed a motion to reopen the case. On February 27, 2018, T.P. sent Attorney Harris another message saying, "Can you let me know. I've been emailing and waiting patiently for weeks now!!!!!"

¶13 On June 12, 2018, Attorney Harris' motion to reopen the small claims case was granted. Over the next 18 months, the case was adjourned several times, and pleadings were amended. An evidentiary hearing was ultimately held on December 3, 2019, and judgment was granted in favor of the plaintiffs in the amount of $900. Attorney Harris continued to represent T.P. in the case until its conclusion.

¶14 On February 20, 2018, T.P. retained Attorney Harris to defend him and his company in a small claims lawsuit claiming breach of contract and unjust enrichment. The case was initiated by PM Construction and Restoration, LLC. Again, T.P. had hired PM Construction as a subcontractor on a project.

¶15 On March 8, 2018, Attorney Harris filed an answer and affirmative defenses. Mandatory mediation was scheduled for April 9, 2018. The mediation notice warned, "Any cancelling or rescheduling of mediation for any reason will be at the discretion of the Mediation Center and will result in an additional fee."

¶16 Attorney Harris alleges that he left a voice mail message for the Mediation Center at the end of March 2018 saying he had a conflict with the April 9, 2018 date. Attorney Harris did not confirm that the mediation would be rescheduled nor did he inform opposing counsel of his alleged request to reschedule. Mediation Center files contain no note or other indication that it received a phone message from Attorney Harris.

¶17 Neither Attorney Harris nor T.P. appeared for mediation on April 9, 2018, although the other parties did appear. On April 10, 2018, a small claims disposition notice was filed by the Mediation Center, indicating the defendant had failed to appear for the scheduled mediation. The court commissioner reviewed the notice the same day, and on April 12, 2018, a default judgment was entered in favor of the plaintiffs.

¶18 On April 13, 2018, T.P. emailed Attorney Harris informing him of the default judgment and saying, "What is going on with you? I have asked for you to represent us and respond to my emails. Why are you ignoring me and not taking care of defending us." Attorney Harris responded by saying he would work on it "this weekend."

¶19 On April 27, 2018, T.P. emailed Attorney Harris again, complaining that Attorney Harris had not responded and questioning what Attorney Harris was going to do to "rectify the issues." On April 30, 2018, two and a half weeks after the default judgment had been entered, Attorney Harris filed a motion to reopen the judgment. Over the objection of opposing counsel, the motion was granted on June 4, 2018. The case was ultimately settled in mediation, and an order for dismissal was entered on October 2, 2019.

¶20 The OLR's complaint alleged the following counts of misconduct with respect to Attorney Harris' representation of T.P.:

Count 1: By failing to respond to multiple email and text messages from T.P. requesting information in the Ramos Drywall and PM Construction cases, Attorney Harris violated SCR

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