Office of Lawyer Regulation v. Gerald P. Boyle
2015 WI 110
Wis.2015Background
- Gerald P. Boyle, admitted 1962, faced an OLR complaint alleging six counts of misconduct involving two clients (D.P. and R.G.); referee found all counts proven and recommended discipline. Boyle had three prior private reprimands (2002, 2009, 2012).
- Core facts: Boyle accepted multiple advanced fees ($10,000, $35,000, $20,000 from D.P.; two $9,500 payments from R.G.) and deposited them in his firm operating account rather than a trust account, without required written notices or fee agreements.
- With D.P., Boyle failed to provide written fee terms or explain the purpose/effect of advanced fees; communication was poor and he failed to timely pursue several claims (some DTPA claims became time-barred).
- Boyle and his staff gave misleading or unfulfilled assurances about subpoenaing phone records; the subpoena was never filed.
- Referee recommended a 60-day suspension, six CLE credits in office management/trust accounting, quarterly trust-account reports to OLR for one year, and full costs; the Supreme Court adopted referee’s findings and sanctions.
Issues
| Issue | Plaintiff's Argument (OLR) | Defendant's Argument (Boyle) | Held |
|---|---|---|---|
| Trust-account rule violations (SCR 20:1.15(b)(4)) | Boyle deposited advanced fees into operating account rather than trust, violating rule. | Boyle conceded counts for these deposits as to D.P. and R.G. | Held: Violation proven; concessions supported by record. |
| Failure to provide written fee disclosures (SCR 20:1.5(b)(1),(2)) | Boyle failed to provide written scope, basis/rate changes, and explanation of advanced fees. | Boyle conceded failure to communicate in writing. | Held: Violation proven; conceded. |
| Failure to promptly comply with client’s requests for information (SCR 20:1.4(a)(4)) | Boyle ignored multiple reasonable inquiries about subpoenas and misled client about status. | Boyle claimed subpoena work was ongoing and later inadvisable; inquiries were infrequent. | Held: Referee’s findings credited client; violation proven. |
| Lack of diligence (SCR 20:1.3) | Boyle allowed claims to stagnate, failed to file timely suits, did not pursue settlements or monitor out-of-state defendants. | Boyle argued OLR needed to prove the underlying claims would have prevailed. | Held: OLR need only prove misconduct by clear, convincing evidence; failure to act with reasonable diligence proven. |
| Lack of competence (SCR 20:1.1) | Boyle treated consumer matters as criminal conspiracies, failed to protect statute-of-limitations and failed to prepare/monitor matters. | Boyle argued underlying claims were borderline-frivolous so discipline inappropriate. | Held: Competence violation proven; disciplinary standard does not require proof of success on the underlying claims. |
| Discipline severity and mitigation | OLR sought 60-day suspension given multiple violations and prior discipline. | Boyle argued age, long practice, and near-retirement mitigate against suspension. | Held: 60-day suspension appropriate given misconduct, multiple offenses, prior reprimands; mitigating factors insufficient to avoid suspension. |
Key Cases Cited
- In re Disciplinary Proceedings Against Anderson, 324 Wis. 2d 627, 782 N.W.2d 100 (Wis. 2010) (60-day suspension for failures of diligence and communication)
- In re Disciplinary Proceedings Against Theobald, 329 Wis. 2d 1, 786 N.W.2d 834 (Wis. 2010) (60-day suspension for lack of diligence and communication failures)
- In re Disciplinary Proceedings Against Hahnfeld, 305 Wis. 2d 48, 739 N.W.2d 280 (Wis. 2007) (60-day suspension where attorney failed to act with diligence and communicate and misused advanced fees)
- In re Disciplinary Proceedings Against Kasprowicz, 301 Wis. 2d 82, 732 N.W.2d 427 (Wis. 2007) (60-day suspension for multiple failures including trust-account misuse and lack of diligence)
- In re Disciplinary Proceedings Against Harris, 322 Wis. 2d 364, 778 N.W.2d 154 (Wis. 2010) (60-day suspension for failure to keep clients informed and respond to requests)
- In re Disciplinary Proceedings Against Carter, 359 Wis. 2d 70, 856 N.W.2d 595 (Wis. 2014) (court rejects age/near-retirement as a reason to avoid progressive discipline)
- In re Disciplinary Proceedings Against Fennig, 227 Wis. 2d 379, 595 N.W.2d 710 (Wis. 1999) (age alone is not necessarily mitigating; suspension rather than public reprimand imposed)