Office of Lawyer Regulation v. Michael M. Rajek
377 Wis. 2d 473
Wis.2017Background
- Michael M. Rajek, admitted 1974, had prior reprimands (1986 private; 2006 public) for dishonesty-related misconduct.
- OLR filed a disciplinary complaint (2014) alleging four counts: failures in advanced-fee notices in Rajek’s fee agreement (affecting clients T.L. and M.J.), refusal to submit a fee dispute to the State Bar fee arbitration program, and delay in cooperating with OLR.
- The fee agreement labeled payments as a “non‑refundable retainer” but functioned as an advanced fee; it did not include required written notices under former SCR 20:1.15(b)(4m) (now SCR 20:1.5/1.15 revisions).
- After Rajek I (2015 WI 18) found similar fee‑notice violations but imposed no discipline, OLR reassessed and negotiated a stipulation: dismissal conditioned on Rajek submitting the fee dispute to binding arbitration and revising his fee agreement to comply with current rules.
- The referee recommended dismissal consistent with the stipulation; the Supreme Court reviewed whether dismissal was appropriate and whether the stipulation impermissibly constituted plea bargaining.
- The Court accepted OLR’s discretionary decision to dismiss (finding the charges de minimis in light of Rajek I and OLR’s post‑decision change in position), adopted the referee’s report, and dismissed the complaint with no costs.
Issues
| Issue | Plaintiff's Argument (OLR) | Defendant's Argument (Rajek) | Held |
|---|---|---|---|
| Were the fee‑notice rule violations prosecutable and deserving of discipline? | Violations of SCR 20:1.15(b)(4m) warranted discipline and a 60‑day suspension. | Prior similar violations (Rajek I) showed minor communication failures and no need for discipline. | Court found Rajek I persuasive; OLR reasonably exercised discretion to treat the violations as de minimis and dismiss. |
| Did the stipulation amount to impermissible plea bargaining? | Stipulation was a discretionary resolution after reassessment, not plea bargaining; amendment unnecessary. | (Implicit) Stipulation need not include typical plea‑bargain assurances; acceptance appropriate. | Court accepted OLR’s unilateral change in position and found explanation sufficient; stipulation accepted. |
| Did Rajek violate rule requiring submission of unresolved fee disputes to binding arbitration? | Rajek unilaterally scheduled arbitration with a private ADR provider (Judge Proctor) rather than State Bar program, and initially refused State Bar arbitration. | Rajek later submitted the dispute to State Bar arbitration as required by the stipulation. | OLR elected not to press discipline for this conduct given remediation (arbitration submission) and Rajek I context; complaint dismissed. |
| Did Rajek delay cooperating with the OLR investigation in violation of SCR 22.03(2)? | Rajek delayed about two months in responding to OLR’s information request, warranting a charge. | Delay was not sufficient to merit discipline given overall circumstances. | Court exercised deference to OLR’s discretion to dismiss; no discipline imposed. |
Key Cases Cited
- In re Disciplinary Proceedings Against Rajek, 361 Wis. 2d 60, 859 N.W.2d 439 (2015) (Supreme Court found fee‑notice violations but declined to impose discipline)
- In re Disciplinary Proceedings Against Inglimo, 305 Wis. 2d 71, 740 N.W.2d 125 (2007) (discusses prohibition on plea bargaining in attorney disciplinary matters)