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

394 Wis.2d 53

949 N.W.2d 571

2020 WI 81

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Michael M. RAJEK, Attorney at Law:

Office of Lawyer Regulation, Petitioner,

v.Michael M. Rajek, Respondent.

No. 2018AP1418-D

Supreme Court of Wisconsin.

Opinion Filed: October 20, 2020

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

PER CURIAM.

¶1 We review Referee Allan Beatty's report recommending we publicly reprimand Attorney Michael M. Rajek for professional misconduct and require him to pay the full costs of this proceeding, which are $8,151.08 as of February 20, 2020. Attorney Rajek has filed an objection to the recommended costs.

¶2 We adopt the referee's findings of fact and conclusions of law. We agree that Attorney Rajek's professional misconduct warrants a public reprimand and we deny Attorney Rajek's objection to costs and order him to pay the full costs of this proceeding. The Office of Lawyer Regulation (OLR) did not seek restitution in this matter and none is ordered.

¶3 Attorney Rajek was admitted to practice law in Wisconsin in 1974. He has previously been disciplined for professional misconduct. In 1986, he received a private reprimand for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Private Reprimand 1986-5. In 2006, he received a public reprimand for committing a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Public Reprimand of Michael J. Rajek, No. 2006-4 (electronic copy available at https://compendium.wicourts.gov/app/raw/001848.html). In 2015, he was found to have committed five counts of professional conduct, but we imposed no discipline because of the technical nature of the violations. In re Disciplinary Proceedings Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439.

¶4 On July 30, 2018, the OLR filed a disciplinary complaint alleging four counts of professional misconduct stemming from Attorney Rajek's representation of D.W. in a criminal proceeding. D.W. was charged in August 2011 with three felonies and a misdemeanor in Sawyer County. In September 2011, D.W. hired Attorney Rajek to represent him. There was an oral agreement that D.W. would pay Attorney Rajek a retainer fee of $30,000. No fee agreement was signed at that time. On September 22, 2011, D.W.'s wife paid Attorney Rajek a $5,000 advanced fee for D.W.'s representation. D.W.'s cash bond of $25,000 was pledged as payment of the balance of Attorney Rajek's fee.¹ At some point, a fee agreement was signed, dated September 25, 2012.

¶5 On September 24, 2012, D.W. pled no-contest to one felony count and the misdemeanor and the State dismissed the other two felony counts. D.W. was convicted and sentenced to two years of incarceration and four years of extended supervision on the felony, and to nine months of jail time for the misdemeanor.

¶6 On January 28, 2013, Attorney Rajek filed a notice of intent to pursue postconviction relief on D.W.'s behalf. On May 13, 2013, Attorney Rajek filed a notice of appeal. In mid-July of 2013, a friend of D.W.'s family who is an Illinois attorney, contacted Attorney Rajek at the family's behest to ask about the status of D.W.'s appeal.

¶7 On July 22, 2013, Attorney Rajek filed a motion in the court of appeals seeking a briefing extension. The motion mentions the Illinois lawyer's request to review D.W.'s file. The court extended the deadline until September 24, 2013. Attorney Rajek then failed to timely file an appellate brief. On October 10, 2013, the court of appeals issued an order stating that unless the brief was filed within five days, or an extension requested, the court would dismiss D.W.'s appeal. On October 14, 2013, Attorney Rajek requested another briefing extension and also moved to withdraw as D.W.'s counsel, stating that D.W.'s family intended to retain the Illinois lawyer as appellate counsel. However, the Illinois attorney had not agreed to represent D.W.

¶8 On October 17, 2013, the court of appeals denied Attorney Rajek's motion to withdraw, noting that the prospective lawyer was not licensed in Wisconsin. The court granted another briefing extension until December 16, 2013. On December 13, 2013, Attorney Rajek requested and received yet another briefing extension.

¶9 On December 26, 2013, Attorney Rajek filed the appellate brief, in which he challenged an aspect of D.W.'s sentencing. The State moved to dismiss the appeal because Attorney Rajek had not first filed a postconviction motion. Attorney Rajek did not respond and on February 6, 2014, the appeal was dismissed because a postconviction motion was a prerequisite to the sentencing challenge.

¶10 Attorney Rajek then filed a motion for reconsideration which the court of appeals granted, extending the time for filing a postconviction motion until April 11, 2014. On April 11, 2014, Attorney Rajek filed a postconviction motion. The circuit court conducted a hearing on that motion in July 2014. The court corrected an error relating to pre-sentence credit and adjusted the sentence structure in a manner favorable to D.W.

¶11 Two years later, D.W. filed a grievance against Attorney Rajek. In August 2016, the OLR contacted Attorney Rajek, requiring a written response to D.W.'s grievance and a copy of the entire case file in the D.W. matter. For essentially the next year, Attorney Rajek either failed to respond or submitted only partial responses to the OLR's repeated requests for information. Attorney Rajek took the position that D.W. was making false representations. Eventually, the OLR filed a complaint and Referee Beatty was appointed.

¶12 Litigation ensued. On May 17, 2019, while the parties were preparing for an evidentiary hearing in this matter, Attorney Rajek notified the referee that he needed to take an immediate six-week medical leave. The referee acceded to the request, canceled the scheduled evidentiary hearing, and suspended other deadlines. At a July 2019 teleconference, Attorney Rajek requested another 30-day delay to address medical needs.

¶13 The evidentiary hearing in this matter was conducted on October 28, 2019. D.W. had died during the pendency of this disciplinary proceeding. D.W.'s wife testified at the evidentiary hearing. As relevant here, D.W.'s wife acknowledged that the signature on the fee agreement was D.W.'s, but she disputed that he had signed the fee agreement on September 25, 2012. D.W.'s wife also testified that she had drafted correspondence so D.W. could request his file from Attorney Rajek. She testified that D.W. never received his file. For his part, Attorney Rajek flatly disputed the OLR's charges and denied receiving a written request for his file from D.W. D.W.'s successor counsel testified that he only received a "thin" quantity of documents regarding D.W.'s case from Attorney Rajek.

¶14 After the evidentiary hearing, both parties filed post-hearing briefs. On January 31, 2020, Referee Beatty filed a report. After making certain factual findings, the referee concluded that Attorney Rajek had violated three of the four counts of misconduct alleged by the OLR. Specifically, the referee concluded that:

By failing to communicate to D.W., in writing, the scope of his representation and the basis or rate of his fee or expenses for which D.W. would be responsible, before or within a reasonable time after commencing the representation, Attorney Rajek violated SCR 20:1.5(b)(1)² (Count One).

By failing to make a timely filing of a motion for postconviction relief, resulting in the dismissal of D.W.'s appeal, Attorney Rajek violated SCR 20:1.3³ (Count Two).

By failing to timely provide the OLR with a written response to D.W.'s grievance and by willfully failing to furnish requested documents, Attorney Rajek violated SCR 22.03(2)⁴ and SCR 22.03(6)⁵ , enforced via SCR 20:8.4(h)⁶ (Count Four).

¶15 However, the referee concluded that the OLR failed to prove Count Three, which alleged that Attorney Rajek violated SCR 20:1.16(d).⁷ The referee determined there was not sufficient evidence that D.W. had sent Attorney Rajek the letter demanding his file.

¶16 The referee then considered the appropriate discipline for Attorney Rajek's misconduct. Determining appropriate discipline for professional misconduct requires an assessment of: (1) the seriousness, nature, and extent of the misconduct; (2) the level of discipline needed to protect the public, the courts, and the legal system from repetition of the attorney's misconduct; (3) the need to impress upon the attorney the seriousness of the misconduct; and (4) the need to deter other attorneys from committing similar misconduct. In re Disciplinary Proceedings Against Hammis, 2011 WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884. On balance the referee agreed that a public reprimand was appropriate, together with the imposition of costs.

¶17 No appeal was filed so our review proceeds pursuant to SCR 22.17(2).⁸ In conducting our review, we affirm the referee's findings of fact unless they are found to be clearly erroneous, and we review the referee's conclusions of law on a de novo basis. See In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We may impose whatever sanction we see 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.

¶18 Based upon our review, we accept the referee's findings of fact and conclusions of law in this matter and agree that Attorney Rajek committed the three counts of professional misconduct, as determined by the referee. We dismiss Count Three.

¶19 In recommending a public reprimand, the referee stated that it was "understandable that Attorney Rajek was frustrated by the [D.W.] grievance and the subsequent investigation." The referee acknowledged that D.W. "was a difficult and troubled person who committed a very serious...