Office of Lawyer Regulation v. Schwitzer
2017 WI 53
| Wis. | 2017Background
- Matthew R. Schwitzer, admitted 2007, faced multiple suspensions (for unpaid dues/CLE and for willful failure to cooperate); his license remained suspended pending these proceedings.
- Criminal convictions: Brown County (2014) — three misdemeanors including unlawful phone use (threats), possession of THC and possession of cocaine (with withheld sentence, probation, 30 days jail); Washington County (2015) — possession of cocaine (5 months jail).
- October 20, 2014 incident: Schwitzer lost consciousness while driving; passenger overdosed in his car; officers found cocaine and paraphernalia in the vehicle.
- Website conduct: After partners left Schwitzer Simon, LLC, Schwitzer continued/modified a firm website to advertise “Matthew R. Schwitzer, LLC,” falsely holding himself out as an active Wisconsin lawyer while suspended.
- Trust-account conduct: While jailed Schwitzer accessed his firm’s trust account using an inmate’s contraband cell phone and attempted a $2,000 transfer to his personal account; the bank reversed the transaction.
- Procedural posture: OLR filed amended complaint alleging five counts of misconduct; Schwitzer admitted virtually all allegations, stipulated to violations and to a six-month suspension; referee recommended six months and payment of costs; Supreme Court adopted referee’s findings and imposed a six-month suspension plus costs.
Issues
| Issue | Plaintiff's Argument (OLR) | Defendant's Argument (Schwitzer) | Held |
|---|---|---|---|
| Criminal convictions reflect professional misconduct | Convictions (multiple misdemeanors) show conduct reflecting adversely on fitness to practice (SCR 20:8.4(b)) | Admitted convictions; stipulated to violation and sanction | Court found violations and adopted six-month suspension |
| Holding out as an active lawyer while suspended (website) | Website falsely represented Schwitzer as admitted and offering consultations while his license was suspended, violating SCR 20:5.5(b)(2) and SCR 20:7.1(a) | Admitted modification and false listings; stipulated to violations | Court found violations for false/misleading communications and holding out; sanction adopted |
| Failure to cooperate with OLR investigation | Willful failure to respond to OLR letters and show-cause order violated SCR 22.03(6) and constitutes professional misconduct under SCR 20:8.4(h) | Did not provide required information; stipulated that omission violated rules | Court found willful failure to cooperate and affirmed prior temporary suspension; sanction adopted |
| Trust-account access and attempted transfer | Accessing firm trust account via contraband phone and attempting transfer endangered client funds and breached trust-account rules (SCR 20:1.15 and related provisions) | Admitted attempting transfer while incarcerated; stipulated to violations | Court found violations (vulnerability of funds; prohibited telephone/internet disbursement) and adopted six-month suspension |
Key Cases Cited
- In re Disciplinary Proceedings Against Soldon, 324 Wis. 2d 4, 782 N.W.2d 81 (2010) (six-month suspension in attorney discipline for criminal convictions and failure to cooperate)
- In re Disciplinary Proceedings Against Meagher, 266 Wis. 2d 18, 669 N.W.2d 733 (2003) (six-month suspension for criminal conviction reflecting on fitness)
- In re Disciplinary Proceedings Against Eisenberg, 269 Wis. 2d 43, 675 N.W.2d 747 (2004) (standard of review for referee findings and conclusions)
- In re Disciplinary Proceedings Against Widule, 261 Wis. 2d 45, 660 N.W.2d 686 (2003) (court may impose any sanction irrespective of referee recommendation)