Office of Lawyer Regulation v. Burton (In re Disciplinary Proceedings Against Diann P. Burton)

386 Wis.2d 39

924 N.W.2d 817

2019 WI 30

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Diann P. BURTON, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Diann P. Burton, Respondent.

No. 2018AP1397-D

Supreme Court of Wisconsin.

Opinion Filed: March 22, 2019

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

¶1 We review Referee Kim M. Peterson's recommendation that the court declare Attorney Diann P. Burton in default and publicly reprimand her for professional misconduct in connection with her practice of law while her law license was suspended, and her improper use of a firm name for her solo practice. The referee also recommended that Attorney Burton pay the full costs of this proceeding, which total $533 as of January 15, 2019.

¶2 Because no appeal has been filed, we review the referee's report pursuant to Supreme Court Rule (SCR) 22.17(2).¹ After conducting our independent review of the matter, we agree with the referee that, based on Attorney Burton's failure to answer the complaint filed by the Office of Lawyer Regulation (OLR), the OLR is entitled to a default judgment. We also agree with the referee that Attorney Burton's professional misconduct warrants a public reprimand. Finally, we agree with the referee that Attorney Burton should be ordered to pay the full costs of the proceeding.

¶3 Attorney Burton was admitted to practice law in Wisconsin in 1997. Her law license is currently subject to administrative and temporary suspensions. On October 31, 2016, Attorney Burton's law license was administratively suspended due to her failure to pay mandatory bar dues and her failure to file a trust account certification. On May 22, 2018, her law license was administratively suspended due to her failure to comply with continuing legal education requirements. On July 10, 2018, her law license was temporarily suspended due to her failure to cooperate in an OLR investigation unrelated to the misconduct at issue in this case.

¶4 On July 26, 2018, the OLR filed the current complaint against Attorney Burton. The complaint alleges four counts of professional wrongdoing. The following facts are taken from the OLR's complaint.

¶5 In August 2014, M.B. and Y.B. hired Attorney Burton to file a petition for a Chapter 7 bankruptcy and paid her a $1,000 flat fee for her representation. Attorney Burton continued to provide legal advice to M.B. and Y.B. after her law license was administratively suspended in October 2016, though she never filed a bankruptcy petition on their behalf.

¶6 In addition, at the time of her administrative license suspension in October 2016, Attorney Burton had at least eight open bankruptcy cases pending in the United States Bankruptcy Court for the Eastern District of Wisconsin. Attorney Burton did not notify her clients or the bankruptcy court of the suspension of her license and continued as counsel of record in the pending cases while her license was suspended. Legal work that Burton performed while her law license was suspended included:

• filing a Chapter 7 bankruptcy petition in February 2017 on behalf of a client, and representing that client through the bankruptcy discharge granted in May of 2017;

• filing amended Chapter 13 plans;

• filing responses to and stipulations resolving trustees' motions to dismiss; and

• filing a petition for voluntary amortization of debts in February 2017 on behalf of another client in a Wisconsin circuit court.

¶7 Finally, while operating as a solo practitioner, Attorney Burton used a law firm name and letterhead that listed several partners, one of whom had a suspended law license.

¶8 The OLR's complaint alleged the following four counts of misconduct arising out of the matters described above:

• By practicing law while her license was suspended, Attorney Burton violated SCR 10.03(6)² and SCR 22.26(2),³ enforceable via SCR 20:8.4(f)⁴ (Count 1).

• By failing to provide proper written notice of the suspension of her law license to clients and to courts before which she had pending matters, Attorney Burton violated SCR 22.26(l),⁵ enforceable via SCR 20:8.4(f) (Count 2).

• By using a law firm name that listed several partners despite operating as a solo practitioner, Attorney Burton violated SCR 20:7.5(d)⁶ (Count 3).

• By using the name of a suspended attorney in her firm name and letterhead, Attorney Burton violated SCR 22.27(l),⁷ enforceable via SCR 20:8.4(f) (Count 4).

¶9 According to the OLR's motion for default, to which Attorney Burton did not respond, the OLR made multiple attempts to serve Attorney Burton with the complaint and an order to answer. Specifically, in August and September 2018, a process server retained by the OLR tried to personally serve Attorney Burton with the complaint and order to answer at the home address that Attorney Burton had provided to the OLR during its investigation, as well as her office address on file with the State Bar. These attempts were unsuccessful. In October 2018, the OLR mailed the complaint and order to answer to Attorney Burton's home address and her office address on file with the State Bar, via certified mail. See SCR 22.13(1).⁸

¶10 Attorney Burton failed to file an answer. In November 2018, the OLR filed a default motion.

¶11 In her ensuing report, the referee recommended that the court find Attorney Burton in default. The referee accepted the allegations of the complaint as the findings of fact in the case and concluded that those facts established that Attorney Burton had committed professional misconduct as set forth in the four counts of the complaint. As requested by the OLR, the referee recommended that Attorney Burton be publicly reprimanded for her misconduct and that she be ordered to pay the costs of the proceeding.

¶12 Because Attorney Burton has not filed an appeal, this matter is submitted to the court for its review pursuant to SCR 22.17(2). We review a referee's findings of fact subject to the clearly erroneous standard. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's conclusions of law de novo. Id. We determine the appropriate level of discipline independent of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶13 We agree with the referee that Attorney Burton should be declared in default. Attorney Burton was given the opportunity to file an answer and present a defense to the OLR's complaint. She failed to do so, and thus may appropriately be declared in default. We also accept the referee's findings of fact based on the allegations of the complaint, and agree with the referee that those findings support a determination of misconduct on the four counts alleged in the OLR's complaint.

¶14 We also agree with the referee that a public reprimand is an appropriate sanction for Attorney Burton's misconduct. Although no two disciplinary proceedings are identical, a public reprimand is generally consistent with our precedent. See In re Disciplinary Proceedings Against Willihnganz, 2017 WI 4, 373 Wis. 2d 44, 889 N.W.2d 637 (publicly reprimanding a respondent-lawyer with a disciplinary history for, among other things, practicing law after his law license was administratively suspended); see also In re Disciplinary Proceedings Against Weigel, 2012 WI 71, 342 Wis. 2d 129, 817 N.W.2d 835 (publicly reprimanding the respondent-lawyer for, among other things, continuing to use another attorney's name in a firm name after that attorney's employment at the firm had ended). We also believe that a public reprimand will be sufficient to deter Attorney Burton and other attorneys from similar misconduct.

¶15 As to the issue of costs, it is our general practice to impose full costs on attorneys who are found to have committed misconduct. See SCR 22.24(1m). There is no reason to depart from that practice here. We therefore impose full costs.

¶16 Finally, we note that no restitution was sought and none is ordered in this proceeding.

¶17 IT IS ORDERED that Diann P. Burton is publicly reprimanded for her professional misconduct.

¶18 IT IS FURTHER ORDERED that within 60 days of the date of this order, Diann P. Burton shall pay to the Office of Lawyer Regulation the costs of this proceeding.

¶19 IT IS FURTHER ORDERED that the director of the Office of Lawyer Regulation shall advise the court if there has not been full compliance with all conditions of this decision.

¶20 IT IS FURTHER ORDERED that the license of Diann P. Burton to practice law in Wisconsin shall remain temporarily suspended pursuant to this court's July 10,...