Office of Lawyer Regulation v. Philip A. Shepherd
2017 WI 66
| Wis. | 2017Background
- Philip A. Shepherd, admitted in Wisconsin 2006, faced a 10-count OLR complaint alleging misconduct in three client matters and failure to cooperate; he admitted the general facts and legal conclusions and waived a hearing.
- Misconduct included accepting advanced fees without written fee agreements, failing to deposit advanced fees into trust, failing to perform or promptly communicate about work, failing to refund unearned fees, and practicing while his license was administratively suspended.
- Specific financial findings: $622.50 unearned to Jean B.; $1,000 advanced fee from I.P. reimbursed by Wisconsin Lawyers' Fund for Client Protection; M.T. paid $700 for work performed while Shepherd’s license was suspended.
- OLR moved for discipline; referee found Shepherd committed all ten counts and recommended a public reprimand, restitution, and assessment of costs ($1,887.96).
- The court adopted the referee’s factual findings and conclusions of law, imposed a public reprimand, ordered restitution ($622.50 to Jean B.; $1,000 to WLFP re I.P.), assessed costs, lifted the temporary suspension for failure to cooperate, left administrative suspensions in place, and accepted Shepherd’s voluntary resignation of his license.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shepherd violated fee and trust-account rules by taking advance fees without written agreements and failing to hold funds in trust | OLR: Shepherd violated SCR 20:1.5(b) and SCR 20:1.15(b)(4) by not providing written fee communications and not holding unearned fees in trust | Shepherd admitted facts but offered depression and intent to resign as mitigation | Court: Violations proven; discipline warranted (public reprimand) |
| Whether Shepherd failed to communicate and to perform timely legal services | OLR: Violations of SCR 20:1.3 and 20:1.4 for lack of diligence and failure to keep clients informed | Shepherd cited mental-health issues and asserted intent to quit practice | Court: Violations proven; mitigation insufficient to avoid public discipline |
| Whether Shepherd practiced law while suspended and failed to cooperate with OLR investigation | OLR: Shepherd practiced while administratively suspended (SCR 22.26(2)) and failed to respond to OLR (SCR 22.03(6)) | Shepherd did not contest underlying facts; offered mental-health mitigation | Court: Violations proven; justified temporary suspension for noncooperation (later lifted), and count sustained |
| Appropriate level of discipline and effect of voluntary resignation | OLR recommended public reprimand, restitution, and costs; considered depression as mitigating | Shepherd sought private discipline, arguing depression and intent to leave practice made public reprimand unnecessary; petitioned to voluntarily surrender license | Court: Public reprimand appropriate; restitution and costs ordered; court accepted voluntary resignation but concurrence objected and urged use of SCR 22.19 for consensual revocation |
Key Cases Cited
- In re Disciplinary Proceedings Against Scanlan, 290 Wis. 2d 30 (2006) (discipline factors and framework for assessing sanctions)
- In re Disciplinary Proceedings Against Widule, 261 Wis. 2d 45 (2003) (appellate court independently determines appropriate discipline)
- In re Disciplinary Proceedings Against Carroll, 248 Wis. 2d 662 (2001) (standard of review for referee findings and conclusions)
- In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241 (1997) (review principles for disciplinary proceedings)
- In re Disciplinary Proceedings Against Smead, 345 Wis. 2d 625 (2013) (public reprimand in similar multi-count misconduct including trust and communication violations)