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

384 Wis.2d 51

918 N.W.2d 418

2018 WI 96

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Michele A. TJADER, Attorney at Law:

Office of Lawyer Regulation, Complainant

v.Michele A. Tjader, Respondent.

No. 2017AP411-D

Supreme Court of Wisconsin.

Opinion Filed: October 16, 2018

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

¶ 1 We review the supplemental report filed by Referee John Nicholas Schweitzer, adopting an amended stipulation entered between the Office of Lawyer Regulation (OLR) and Attorney Michele A. Tjader.

¶ 2 After careful review, we accept the referee's recommendation and parties' stipulation wherein Attorney Tjader stipulates that she does not contest six counts of misconduct alleged in the OLR's complaint and the OLR seeks dismissal of three counts. We agree with the parties and the referee that a public reprimand is an appropriate level of discipline for Attorney Tjader's misconduct, that restitution is not required, and that Attorney Tjader should be assessed the full costs of the proceeding, which are $3,298.19 as of June 26, 2018.

¶ 3 Attorney Tjader was admitted to practice law in Wisconsin in 1996. She practices in Madison. She has been disciplined by this court on three prior occasions. In 2002, we publicly reprimanded Attorney Tjader for lack of competence, lack of diligence, failing to comply with reasonable requests for information, failing to promptly return an advance payment of fees that had not been earned, and conduct involving dishonesty, deceit, and misrepresentation.

In re Disciplinary Proceedings Against Tjader, 2002 WI 37, 252 Wis. 2d 94, 643 N.W.2d 87. In 2006, Attorney Tjader received a private reprimand for failing to comply with reasonable requests for information and failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Private Reprimand No. 2006-2 (electronic copy available at https://compendium.wicourts.gov/app/raw/001855.html). In 2014, Attorney Tjader received another private reprimand for committing a criminal act that reflected adversely on her honesty, trustworthiness or fitness as a lawyer in other respects as a result of being convicted of operating while intoxicated (OWI)—second offense. Private Reprimand No. 2014-20 (electronic copy available at https://compendium.wicourts.gov/app/raw/002709.html).

¶ 4 This disciplinary proceeding commenced on March 7, 2017, when the OLR filed a complaint alleging that Attorney Tjader committed nine counts of professional misconduct involving three clients.¹ The OLR initially recommended a 60-day suspension and that Attorney Tjader be ordered to pay restitution in one client matter, for failure to reimburse an expert for an accident report. During the course of litigation, the OLR concluded that it would not be able to meet its burden of proof as to three of the nine alleged counts. Accordingly, the OLR reduced the recommended sanction to a public reprimand.

¶ 5 On January 22, 2018, the parties executed an initial stipulation in which the OLR recommended dismissal of three counts, Attorney Tjader stated she did not contest the remaining six counts, and the parties agreed a public reprimand was appropriate. However, this stipulation failed to address restitution.

¶ 6 The referee issued a report on February 13, 2018, in which he accepted the recommendations in the stipulation but further recommended that this court order Attorney Tjader to refund each of the three clients the full amount of fees paid, an amount that would exceed $34,000. He recommended the court place the burden on Attorney Tjader to demonstrate what, if anything, she earned if she wanted to reduce this amount.

¶ 7 After the referee's initial report was filed, the OLR filed a restitution statement stating that it does not seek restitution in this matter because restitution with respect to the first two clients was "not reasonably ascertainable" and the OLR had determined that the expert who prepared the accident report has since been paid.² In view of this discrepancy, we remanded the matter with directions to the parties to amend their stipulation to address restitution and directed the OLR to explain the basis for the recommended discipline.

¶ 8 An amended stipulation was filed on May 8, 2018. In the amended stipulation the OLR again recommends the court dismiss three of the alleged counts of misconduct.

Attorney Tjader states that she does not contest the remaining six misconduct counts, which alleged violations of former SCR 20:1.15(b)(4m)b³ and SCR 20:1.16(d),⁴ stemming from her representation of three clients.

¶ 9 The relevant facts are as follows. In 2013 and 2014, Attorney Tjader represented N.B. in a criminal OWI matter; K.D. in a civil OWI matter; and L.H. in a felony matter. Each of those clients paid advance fees to Attorney Tjader. N.B. paid Attorney Tjader $3,500 in advanced fees, K.D. paid her $4,500, and L.H. paid her $25,000. Attorney Tjader deposited all these fees directly into her business account. Nevertheless, at the conclusion of her representation of each client, Attorney Tjader failed to provide them with the notices required under former SCR 20:1.15(b)(4m)b. Attorney Tjader also failed to provide each of the clients with a refund of unearned fees, if any, or sufficient information to show that no such refund was owing, in violation of SCR 20:1.16(d).

¶ 10 In the amended stipulation, Attorney Tjader avers that the stipulation did not result from plea-bargaining, that she does not contest the facts and misconduct alleged by the OLR in counts 2, 3-5, and 8-9, and that the facts alleged in the complaint form a basis for the discipline requested. Attorney Tjader further represents that she fully understands the misconduct allegations; fully understands the ramifications should this court impose the stipulated level of discipline; fully understands her right to contest the matter; fully understands her right to consult with counsel; that her entry into the stipulation is made knowingly and voluntarily; and that the stipulation represents her decision not to contest the level and type of discipline sought by the OLR director.

¶ 11 The referee filed a supplemental report on May 31, 2018, adopting the stipulation.

The referee agreed that a public reprimand was an appropriate sanction for the misconduct described above, and acceded to the parties' recommendation that no restitution is warranted.

¶ 12 No appeal has been filed so we review this matter pursuant to SCR 22.17(2).⁵ A referee's findings of fact are affirmed unless clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction it sees fit regardless 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 There is no showing that any of the referee's findings of fact, based on the parties' amended stipulation, are clearly erroneous. Accordingly, we adopt them. We agree that dismissal of counts 1, 6, and 7 is appropriate, and we agree that Attorney Tjader violated supreme court rules noted above.⁶

¶ 14 With respect to the appropriate sanction, this court follows a general policy of progressive discipline. In re Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296 Wis. 2d 47, 719 N.W.2d 501. Attorney Tjader's record of three previous reprimands makes another public reprimand somewhat lenient, but we are persuaded by the referee's recommendation.

¶ 15 The referee observed that Attorney Tjader's failure to comply with SCR 20:1.15(b)(4m)b "amounted to technical violations of essentially a failure to provide appropriate notice to her clients" citing In re Disciplinary Proceedings Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439. In light of this precedent, the referee agreed that, notwithstanding the policy of progressive discipline, a public reprimand is appropriate here. See In re Disciplinary Proceedings Against Shepherd, 2017 WI 66, 376 Wis. 2d 129, 897 N.W.2d 44 (concluding a public reprimand was warranted where, in addition to other allegations, an attorney failed to provide notices and refunds of unearned fees); In re Disciplinary Proceedings Against Smead, 2013 WI 19, 345 Wis. 2d 625, 827 N.W.2d 81 (imposing a public reprimand for seven counts of misconduct including failing to deposit fees into a trust account and failing to return unearned fees).

¶ 16 The OLR assured the court in its memorandum in support of the amended stipulation that it carefully considered Attorney Tjader's disciplinary history when determining the OLR's recommendation for a public reprimand. Consistent with Rajek, Attorney Tjader's misconduct in these matters, absent her disciplinary history, might have warranted a diversion or private reprimand. The OLR explains that it maintained pursuit of a public reprimand, rather than private discipline, precisely because of Attorney Tjader's disciplinary history.

¶ 17 Moreover, with respect to restitution, although the parties have stipulated that Attorney Tjader violated SCR 20:1.16(d), the OLR does not dispute that Tjader performed the services each of these clients hired her to do. The OLR notes that to the extent that any of these clients believe the fees they were charged were not reasonable, the State Bar of Wisconsin offers fee arbitration to address such concerns. In the amended stipulation, Attorney Tjader has explicitly confirmed her willingness to participate in fee arbitration if initiated by any of her clients and has agreed that she would comply with any arbitration award.

¶ 18 Finally, we agree with the referee that, consistent with our general policy, Attorney Tjader should be required to pay the full costs of the proceeding, which are $3,298.19. SCR 22.24(1m).

¶ 19 IT IS ORDERED that Michele A. Tjader is publicly...