Office of Lawyer Regulation v. Pamela J. Smoler
2015 WI 97
| Wis. | 2015Background
- Pamela J. Smoler (formerly Smelzer), admitted 1988, lived in Florida; license temporarily suspended in 2011 for willful failure to cooperate with OLR; no prior disciplinary history.
- OLR filed a complaint alleging seven counts of misconduct across two client matters: a $50,000 loan from clients D.S./K.S. (the S.s) and a $50,000 advanced fee from C.J./C.H. for a medical-malpractice investigation.
- Smoler drafted and received the $50,000 loan from the S.s (2005) without advising them of independent counsel or obtaining written consent; no repayments were made; the debt was later discharged in Smoler’s Chapter 7 bankruptcy.
- Smoler deposited both the S.s loan and C.J.’s advanced fee into her business account (not trust), provided only one invoice showing $4,940.65 in expenses, failed to account for or refund the unearned portion, and failed to keep clients informed or produce file documents.
- Smoler did not respond to OLR investigative requests, did not answer the disciplinary complaint, and failed to appear—OLR moved for default; referee found all seven counts proved and recommended a nine-month suspension, restitution of $45,059.35 to C.J., and payment of costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smoler committed ethical violations by entering into a business transaction with clients (loan/advanced fee) without required disclosures/independent counsel/consent | OLR: Smoler entered into loan/fee transactions with clients without providing disclosure, opportunity for independent counsel, written consent, and misused client funds | Smoler did not contest (defaulted); no responsive arguments presented | Court: Finds violations of former SCR 20:1.8(a) and related trust/account rules; misconduct proved |
| Whether Smoler violated duties to communicate, account, and surrender client property/fees | OLR: Smoler failed to keep clients informed, failed to provide statements/accountings, failed to deposit advanced funds in trust, and failed to refund unearned fees | No defense (default) | Court: Finds violations of SCR 20:1.4, 1.5, 1.15, and 1.16 as alleged |
| Whether Smoler failed to cooperate with OLR investigations | OLR: Smoler willfully failed to respond to OLR requests and provide documents | No defense (default) | Court: Finds violations of SCR 22.03(2) and (6); declares Smoler in default |
| Appropriate discipline and restitution | OLR: sought suspension and costs; later stated it was not seeking restitution (director found no reasonably ascertainable restitution amount) | Smoler did not participate | Court: Adopts referee—nine-month suspension, pay costs ($2,869.61), and order restitution of $45,059.35 to C.J.; no restitution to S.s (debt discharged in bankruptcy) |
Key Cases Cited
- In re Disciplinary Proceedings Against Pitts, 304 Wis. 2d 556, 735 N.W.2d 917 (Wis. 2007) (six‑month suspension for business transaction with client without independent counsel or written consent)
- In re Disciplinary Proceedings Against Phillips, 290 Wis. 2d 87, 713 N.W.2d 629 (Wis. 2006) (one‑year suspension for borrowing large sum from client without required protections)
- In re Disciplinary Proceedings Against Eisenberg, 269 Wis. 2d 43, 675 N.W.2d 747 (Wis. 2004) (standard of review: referee findings affirmed unless clearly erroneous; conclusions of law reviewed de novo)
- In re Disciplinary Proceedings Against Widule, 261 Wis. 2d 45, 660 N.W.2d 686 (Wis. 2003) (court determines appropriate discipline independently of referee recommendation)