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

385 Wis.2d 565

923 N.W.2d 869

2019 WI 17

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Melinda ALFREDSON, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Melinda Alfredson, Respondent.

No. 2018AP520-D

Supreme Court of Wisconsin.

Opinion Filed: February 26, 2019

ATTORNEY disciplinary proceeding. Attorney’s license suspended.

PER CURIAM.

¶1 We review the report of the referee, Attorney John Nicholas Schweitzer, recommending that the court suspend the Wisconsin law license of Attorney Melinda Alfredson for 90 days and order her to pay the full costs of this disciplinary proceeding. The referee wrote the report after Attorney Alfredson and the Office of Lawyer Regulation (OLR) entered into a stipulation concerning Attorney Alfredson's misconduct in two client matters and her failure to cooperate with the OLR's investigation into her misconduct. Neither party has appealed from the referee's report and recommendation, and thus our review proceeds under Supreme Court Rule (SCR) 22.17(2).¹

¶2 We agree that Attorney Alfredson's professional misconduct warrants a 90-day suspension. We further agree that Attorney Alfredson should pay the full costs of this matter, which total $2,649.59 as of November 15, 2018. No restitution was sought and none is ordered.

¶3 Attorney Alfredson obtained her Wisconsin law license in 2009. In 2017, this court suspended her law license for 60 days based on 16 counts of misconduct arising out of her representation of two clients, her various trust account violations, and her failure to cooperate with the OLR's investigation into her misconduct. See In re Disciplinary Proceedings Against Alfredson, 2017 WI 6, 373 Wis. 2d 79, 890 N.W.2d 13 ("Alfredson I").

¶4 In March 2018, the OLR filed the underlying complaint against Attorney Alfredson. The OLR alleged that Attorney Alfredson had engaged in six counts of misconduct based on her work for clients R.R. and M.T., as well as her failure to cooperate with the OLR's investigation into her misconduct. The OLR sought a four-month suspension of Attorney Alfredson's law license.

¶5 In mid-October 2018, following the filing of an answer and the appointment of the referee, the parties executed a stipulation in which Attorney Alfredson withdrew her answer and stipulated to the factual allegations and misconduct charges of the complaint, as amended in the stipulation. Both the OLR and Attorney Alfredson agreed that a 90–day suspension was appropriate. The parties further agreed that the stipulation was not the result of plea bargaining; that Attorney Alfredson's entry into the stipulation was knowing and voluntary; and that she understood the misconduct allegations as amended by the stipulation, her right to contest those allegations, and the ramifications of her entry into the stipulation.

¶6 In late October 2018, the referee filed his report and recommendation. The referee accepted the parties' stipulation and found, based on the stipulation, that the following facts were true.

Representation of R.R. (Counts 1-4)

¶7 In February 2015, R.R. and his wife divorced. R.R. was represented by counsel other than Attorney Alfredson at the time.

¶8 In approximately September 2015, R.R. hired Attorney Alfredson to represent him after he had fallen behind on certain post-divorce obligations. R.R. owed his ex-wife past-due maintenance and attorney's fees. In addition, R.R. had not yet attempted to sell a boat that he and his ex-wife had owned during their marriage, even though the divorce judgment required that the boat be placed on the market for sale.

¶9 In mid-October 2015, a family court commissioner found R.R. in contempt and imposed a $2,405.95 purge condition.

¶10 On October 20, 2015, R.R. informed Attorney Alfredson that he had sold the boat for $7,500. Attorney Alfredson and R.R. agreed that the proceeds from the sale would be deposited into Attorney Alfredson's trust account; that the proceeds would be used to pay the $2,405.95 purge amount; and that the remainder of the proceeds ($5,094.05) would be held in trust pending documentation of receipts for storage and the bank payoff for the boat, for which R.R.'s ex-wife was partially responsible.

¶11 Attorney Alfredson never deposited the boat sale proceeds into a trust account. Rather, on October 22, 2015, she deposited the check that R.R. had received for the boat in a non-trust account held by the law firm where she worked at the time. Attorney Alfredson subsequently transferred a portion of the funds to a second non-trust account held by the firm, and transferred another portion of the funds to a third non-trust account held by the firm.

¶12 In November 2015, Attorney Alfredson provided R.R.'s ex-wife's lawyer with a check, drawn from one of these non-trust accounts, for the $2,405.95 purge amount. Attorney Alfredson also used some of R.R.'s funds for her own personal use.

¶13 In April 2016, R.R. terminated Attorney Alfredson and retained a new lawyer. In a May 9, 2016 letter to R.R., Attorney Alfredson agreed to forward the remaining proceeds from the boat sale to R.R.'s new lawyer. Later in May 2016, Attorney Alfredson provided the OLR with a carbon copy of a purported check that she allegedly wrote to R.R.'s new lawyer in the amount of the boat sale proceeds left after the $2,405.95 purge payment; i.e., $5,094.05.

¶14 In early June 2016, the circuit court ordered that $5,000 of the proceeds from the boat sale were to be paid to R.R.'s ex-wife's lawyer within ten business days. In mid-June 2016, R.R.'s ex-wife's lawyer wrote R.R.'s new lawyer, inquiring about the status of the $5,000 payment and stating that "Attorney Alfredson advises that she sent the monies from her trust to you." Attorney Alfredson was copied on this letter. In response, R.R.'s new lawyer wrote Attorney Alfredson to say that she had not received any trust funds from Attorney Alfredson. Almost four months after receiving this letter, in October 2016, Attorney Alfredson delivered a $5,094.95 check made payable to R.R.'s ex-wife's lawyer. The check was drawn from a non-trust account.

¶15 In April 2016, R.R. filed a grievance with the OLR against Attorney Alfredson. In mid-July 2016, the OLR notified Attorney Alfredson of the investigation of R.R.'s grievance and requested certain information and records from her. She did not respond.

¶16 In August 2016, the OLR sent Attorney Alfredson a second request for information and records via certified mail. Although Attorney Alfredson signed the return receipt for the letter, she did not respond.

¶17 In early September 2016, the OLR personally served Attorney Alfredson with a letter in which it threatened to move for a temporary license suspension for failure to cooperate with its investigation. In late September 2016, the OLR received a letter response from Attorney Alfredson to R.R.'s grievance. Attorney Alfredson failed to disclose in her letter that there was any issue with respect to the delivery of the remaining proceeds from the boat sale.

¶18 In April 2017, Attorney Alfredson wrote a letter to the OLR stating that in May 2016, she had sent a $5,094.05 check to R.R.'s new lawyer, but she stopped payment on the check when that lawyer informed her that she had never received the check.

¶19 In May 2017, the OLR sent a letter to Attorney Alfredson requesting additional information and documents. Attorney Alfredson did not respond.

¶20 In June 2017, the OLR wrote Attorney Alfredson again, reminding her of her duty to cooperate. In a July 2017 telephone conversation with OLR staff, Attorney Alfredson stated that her response was in the mail and that she would fax a copy of the response to the OLR. The OLR received nothing from Attorney Alfredson.

¶21 In August 2017, the OLR personally served Attorney Alfredson with a letter in which it threatened to move for a temporary license suspension for failure to cooperate with its investigation. In late August 2017, the OLR received Attorney Alfredson's faxed response to the OLR's May 2017 letter.

Representation of M.T. (Counts 5-6)

¶22 In October 2015, M.T. hired Attorney Alfredson to represent him in a divorce. In a May 9, 2016 letter to Attorney Alfredson, M.T.'s wife's lawyer identified certain personal property items that her client wanted to retrieve from the marital residence but that M.T. had allegedly prevented her from retrieving. Attorney Alfredson did not directly communicate with M.T. regarding this issue. M.T.'s wife moved for contempt based on M.T.'s failure to return some of the items on the personal property list.

¶23 In June 2016, M.T. retained a new lawyer. That same month, M.T.'s new lawyer asked Attorney Alfredson to provide him with M.T.'s file as soon as possible. His office followed-up that request with numerous written requests and phone calls asking for the file. Attorney Alfredson did not provide M.T.'s file until September 2016, over three months after the new lawyer's initial request for the file.

¶24 The referee reviewed the complaint and stipulation and concluded that, in connection with her work for R.R. and M.T., Attorney Alfredson had committed the following forms of misconduct:

• Count One: By failing to hold R.R.'s funds in trust, Attorney Alfredson violated SCR 20:1.15(b)(1).²

• Count Two: By failing to promptly deliver funds that she collected in connection with her representation of R.R. to R.R.'s ex-wife's lawyer, Attorney Alfredson violated former SCR 20:1.15(d)(1), and SCR 20:1.15(e)(1).³

• Count Three: By converting R.R.'s funds that she received in connection with her representation of R.R. for her own personal use, Attorney Alfredson violated SCR 20:8.4(c).⁴

• Count Four: By failing to timely provide the OLR with a written response to R.R.'s grievance, and by failing to timely provide the OLR with a response to the OLR's additional request for information, Attorney Alfredson violated SCR 22.03(2),⁵ enforced via SCR 20:8.4(h).⁶

• Count Five: By failing to address with M.T. the personal property issue set forth in his

...