Office of Lawyer Regulation v. Mary K. Biester
2013 WI 85
| Wis. | 2013Background
- Mary K. Biester, admitted 1979, practiced in Beloit; OLR filed amended complaint alleging 31 counts of misconduct; Biester pled no contest to 30 counts.
- Misconduct arose from six client matters (divorce, bankruptcy, medical‑malpractice intake, custody/paternity, and transactions involving her nonlawyer assistant J.M.), including misappropriation/misuse of client funds, failure to communicate, failure to prosecute, failure to safeguard and account for trust funds, improper trust‑account practices, and failure to cooperate with OLR.
- Audit revealed multiple trust‑account violations (improper disbursements, internet/cash prohibited transactions, lack of records); $78,000 from client L.T. was paid by the Lawyers’ Fund for Client Protection (Fund). Count Two remained stayed.
- Referee found the OLR met its burden as to the 30 counts, recommended a one‑year suspension, $900 restitution to J.F., 20 hours preapproved CLE in ethics/office management/trust accounting, and payment of full costs ($25,584.50 as of 4/1/2013).
- The Wisconsin Supreme Court adopted the referee's findings and conclusions, ordered a one‑year suspension effective Nov. 25, 2013, restitution to J.F. ($900), 20 CLE hours as condition of reinstatement, payment of costs, and compliance with suspension procedures; any later prosecution on stayed Count Two would run consecutive to this suspension.
Issues
| Issue | Office of Lawyer Regulation (Plaintiff) Argument | Biester (Defendant) Argument | Held |
|---|---|---|---|
| Whether referee’s findings should be adopted | Findings supported by stipulation/no‑contest plea and OLR proof | No appeal; did not challenge referee findings | Court adopted referee’s findings of fact and conclusions of law |
| Appropriate discipline for admitted multiple misconducts | One‑year suspension appropriate given scope, client harm, trust violations, lack of cooperation | Mitigating: long prior unblemished career, remorse, health/financial problems, treatment; urged consideration | Court imposed one‑year suspension, finding sanction appropriate on balance |
| Restitution and financial remedies | Order restitution: $900 to J.F.; potential reimbursement to Fund (if stayed count prosecuted) | Agreed to $900 restitution (unless already paid); stay as to Count Two preserved issue of Fund reimbursement | Court ordered $900 restitution to J.F.; Fund reimbursement reserved if Count Two proceeds; costs payable to OLR (ordered) |
| Conditions for reinstatement and remediation | Require CLE (ethics, office/trust management), costs paid, compliance with SCR duties | Agreed to CLE and restitution; sought consideration of mitigating factors for sanction length | Court required 20 hours preapproved CLE addressing trust/accounting/office management as condition of reinstatement; full costs due; compliance with SCR 22.26/22.29 conditions |
Key Cases Cited
- In re Disciplinary Proceedings Against Raneda, 340 Wis. 2d 273 (2012) (one‑year suspension for multiple trust/account and communication violations)
- In re Disciplinary Proceedings Against Mandelman, 317 Wis. 2d 215 (2009) (one‑year suspension for fee/communication/trust violations; prior discipline noted)
- In re Disciplinary Proceedings Against Widule, 261 Wis. 2d 45 (2003) (Supreme Court not bound by referee recommendations and may impose appropriate discipline)
- In re Disciplinary Proceedings Against Tully, 283 Wis. 2d 124 (2005) (standards of review: factual findings deferential, conclusions of law de novo)