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

396 Wis.2d 14

955 N.W.2d 405

2021 WI 21

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Mark M. DITTER, Attorney at Law:

Office of Lawyer Regulation, Complainant, v. Mark M. Ditter, Respondent.

No. 2020AP148-D

Supreme Court of Wisconsin.

Opinion Filed: March 9, 2021

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 We review the report and recommendation of Referee Sue E. Bischel. Based on a stipulation by the parties, Referee Bischel determined that Attorney Mark M. Ditter committed four counts of professional misconduct. The referee, however, concluded that the level of discipline jointly requested by the parties, a 60-day suspension, was insufficient under the circumstances. Referee Bischel recommended that this court impose a 120-day suspension. She also recommended that the court require Attorney Ditter to pay the full costs of this disciplinary proceeding, which are $3,896.68 as of August 26, 2020.

¶2 As neither party has appealed the referee's report and recommendation, we review this matter pursuant to Supreme Court Rule (SCR) 22.17(2). ¹ We agree with the referee's conclusion that Attorney Ditter committed the four counts of professional misconduct alleged in the complaint filed by the Office of Lawyer Regulation (OLR). We conclude that Attorney Ditter's conduct in this matter requires a 90-day suspension of his license to practice law in this state. Because the Office of the State Public Defender (SPD) has already recouped the funds that Attorney Ditter failed to forward to a third party, we do not impose any restitution award in this matter. Finally, because Attorney Ditter did not enter into a stipulation until after both the OLR and the referee had expended time and money in proceeding with this matter, we require Attorney Ditter to pay the full costs of this disciplinary proceeding.

¶3 The referee found the facts set forth below. In addition to the facts to which Attorney Ditter stipulated, the referee made factual findings regarding Attorney Ditter's interactions with the OLR during its investigation and events that occurred during this disciplinary proceeding. The referee gave Attorney Ditter the opportunity to object to any of her proposed factual findings, but he did not object.

¶4 We will begin with the stipulated facts regarding Attorney Ditter's underlying conduct and his response to the OLR's investigation. Then we will set forth the pertinent facts regarding Attorney Ditter's conduct during this disciplinary proceeding.

¶5 Attorney Ditter was initially admitted to the practice of law in this state in May 1983. He most recently operated a small law practice in Kaukauna.

¶6 Attorney Ditter has been the subject of professional discipline on two previous occasions, both of which were quite some time ago. In 1994 Attorney Ditter's law license was suspended for 60 days for engaging in the practice of law while his license had been administratively suspended for failure to comply with continuing legal education requirements. In re Disciplinary Proceedings Against Ditter, 187 Wis. 2d 337, 523 N.W.2d 105 (1994). In 1996 Attorney Ditter consented to the imposition of a private reprimand for failing to act with reasonable diligence and for failing to communicate with a client. Private Reprimand No. 1996-17 (electronic copy available at https://compendium.wicourts.gov/app/raw/000179.html).

¶7 Attorney Ditter's license is currently suspended for multiple reasons. First, this court temporarily suspended his license as of May 14, 2019, due to his willful failure to cooperate with the OLR's investigation of his conduct that is the subject of this disciplinary proceeding. Second, Attorney Ditter's license is also administratively suspended due to his non-payment of bar dues, his failure to file a trust account certification, and his noncompliance with continuing legal education requirements. See SCRs 10.03(6), 20:1.15(i)(4), and 31.02.

¶8 The facts underlying the counts of misconduct in this matter relate to Attorney Ditter's handling of funds in two cases in which he was appointed to represent indigent criminal defendants in the Outagamie County circuit court by the SPD. In both cases Attorney Ditter hired an investigator to prepare alternative pre-sentence reports. The investigator completed his work, and the alternative reports were filed with the circuit court in those two cases.

¶9 In the first case the SPD approved payment to Attorney Ditter and issued a check to Attorney Ditter in the amount of $2,463.70 on June 29, 2018. That amount included $1,200 for the work performed by the investigator, which Attorney Ditter was obligated to forward to him.

¶10 In the second case the SPD also approved payment to Attorney Ditter and issued a check to Attorney Ditter in the amount of $3,227.62 on July 20, 2018. That amount again included $1,200 for the work performed by the investigator, which Attorney Ditter was obligated to forward to him.

¶11 Attorney Ditter did not deliver to the investigator the $2,400 that he had received from the SPD and that he owed to the investigator. The investigator and the SPD made repeated requests for payment to Attorney Ditter by email, letter, and telephone calls. Attorney Ditter, however, did not respond. Ultimately, the investigator filed a grievance with the OLR regarding Attorney Ditter's failure to forward the funds he had received from the SPD.

¶12 Members of the OLR's intake department attempted to contact Attorney Ditter regarding the grievance. On December 7, 2018, Attorney Ditter sent an email to an OLR intake representative, in which he made the following statement: "I am working to get [the investigator] paid quickly. I sent him a payment this week towards one of the two outstanding bills, and expect to be able to take care of the rest very soon." Attorney Ditter's claim that he had sent a payment to the investigator was a false statement. He did not ever send a payment to the investigator for his work on the two cases. He converted to his own use the funds due to the investigator.

¶13 The OLR opened a formal investigation of the grievance against Attorney Ditter. On December 19, 2018, the OLR Trust Account Program Administrator, Travis Stieren, sent a letter to Attorney Ditter via first class mail advising him of the formal investigation and giving him a deadline of January 14, 2019, to provide a written response to the grievance against him. Attorney Ditter did not respond.

¶14 On January 29, 2019, Mr. Stieren sent a second letter, via both first class and certified mail, seeking a written response to the grievance by February 8, 2019. The January 29, 2019 letter also advised Attorney Ditter that in the event he failed to respond, the OLR Director was authorized to file a motion seeking the temporary suspension of his license for a willful failure to cooperate. The certified letter was returned to the OLR unclaimed. The letter sent via first class mail was not returned. Attorney Ditter again did not respond.

¶15 On February 15, 2019, Mr. Stieren sent an email to Attorney Ditter. He attached copies of his prior letters and requested a written response to the grievance by February 22, 2019. Attorney Ditter still did not respond.

¶16 Attorney Ditter finally spoke with Mr. Stieren via telephone on February 22, 2019. During that call, Attorney Ditter confirmed that he had received at least one of the OLR's letters. He stated that he would prepare and submit to the OLR a written response to the grievance by the following week. Later that same day, Attorney Ditter sent an email to Mr. Stieren, in which he stated, "Pursuant to our phone conversation this AM, I have prepared a response and have mailed it." Attorney Ditter's representation was false, as the OLR never received any written response to the grievance against him.

¶17 On March 12, 2019, the OLR filed a motion seeking the temporary suspension of Attorney Ditter's license to practice law in Wisconsin due to his willful failure to cooperate with its investigation. This court subsequently issued an order directing Attorney Ditter to show cause in writing by April 3, 2019, why the OLR's motion should not be granted. Attorney Ditter did not respond to the court's order to show cause. Accordingly, on May 14, 2019, this court issued an order temporarily suspending Attorney Ditter's license to practice law in Wisconsin.

¶18 On March 27, 2019, due to Attorney Ditter's conversion of the funds, the SPD sent $2,400 directly to the investigator to pay him for the work he had performed on the two matters. In order to recoup the $2,400 owed to the investigator that Attorney Ditter had wrongfully converted, the SPD withheld that sum from subsequent payments made to Attorney Ditter on other cases.

¶19 The OLR filed a formal complaint against Attorney Ditter in this court on January 23, 2020. The referee's report contains additional factual findings regarding events that occurred during the disciplinary proceeding.

¶20 Attorney Ditter was personally served with the complaint and the order to answer on February 20, 2020. The order to answer required him to file an answer to the complaint within 20 days. Attorney Ditter did not file an answer or otherwise respond to the complaint.

¶21 After Referee Bischel was appointed, she sent an email to the parties on April 14, 2020, advising them of a telephonic scheduling conference to take place on April 22, 2020. Attorney Ditter did not respond to the referee's email, nor did he appear for the telephonic scheduling conference. At that conference, the OLR's counsel advised the referee that he had made multiple attempts to contact Attorney Ditter, but had received no response.

¶22 Although Attorney Ditter's time for filing an answer had expired, the referee issued a scheduling order that granted him a period of additional eight days to file an answer. Attorney Ditter never filed an answer. Accordingly, the OLR filed a motion for a default.

¶23 The...