Office of Lawyer Regulation v. Clemment (In Re Clemment)
2018 WI 69
| Wis. | 2018Background
- Sarah Clemment, admitted 2000, previously received a consensual public reprimand in 2011 for multiple ethics violations.
- In 2016 Clemment represented D.H., charged with first-degree murder; D.H.'s sister B.H. paid a $5,000 flat fee to Clemment.
- Clemment had no homicide or jury-trial experience, did not associate experienced counsel, failed to review evidence or retain experts/investigator, and performed poorly at pretrial hearings.
- The circuit court found Clemment incompetent, removed her from the case, and Clemment agreed to refund the $5,000 but did not provide required post-termination notices or refund the fee.
- The Office of Lawyer Regulation (OLR) charged Clemment with six rule violations; she failed to answer and was declared in default. The referee found misconduct and recommended a public reprimand, $5,000 restitution to B.H., and assessment of costs ($802.19).
- The Wisconsin Supreme Court adopted the referee's findings, declared Clemment in default, imposed a public reprimand, ordered $5,000 restitution and payment of costs, and required restitution be paid before costs.
Issues
| Issue | Plaintiff's Argument (OLR) | Defendant's Argument (Clemment) | Held |
|---|---|---|---|
| Competent representation / failure to associate experienced counsel (SCR 20:1.1) | Clemment lacked the legal knowledge, preparation, and should have associated experienced counsel for a homicide case. | (No answer filed; no defense presented.) | Violation proved; Clemment reprimanded. |
| Consultation about means and communication (SCR 20:1.2(a), 1.4(a)(2)) | Clemment failed to consult sufficiently with D.H. about strategy and means. | (No response filed.) | Violation proved. |
| Diligence (SCR 20:1.3) | Clemment failed to act promptly or diligently (did not review evidence, prepare witnesses, or hire experts). | (No response filed.) | Violation proved. |
| Withdrawal when representation would violate rules (SCR 20:1.16(a)(1)) | Clemment should have withdrawn once she was unable to competently represent D.H. | (No response filed.) | Violation proved. |
| Post-termination obligations and refund (SCR 20:1.5(g)(2) and 1.16(d)) | Clemment failed to give required post-termination notices and did not refund unearned flat fee after removal. | (No response filed; claimed economic hardship informally to B.H.) | Violations proved; restitution of $5,000 ordered. |
| Default procedure / sufficiency of proof | OLR moved for default after Clemment failed to answer; referee found OLR met its burden on all counts. | Clemment did not oppose or appeal. | Default entered; findings adopted by court. |
Key Cases Cited
- Kelsay v. In re Disciplinary Proceedings Against Kelsay, 155 Wis. 2d 480, 455 N.W.2d 871 (1990) (purposes of professional discipline: protect public, deter, rehabilitate)
- Eisenberg v. In re Disciplinary Proceedings Against Eisenberg, 269 Wis. 2d 43, 675 N.W.2d 747 (2004) (referee findings of fact reviewed for clear error; conclusions of law reviewed de novo)
- Widule v. In re Disciplinary Proceedings Against Widule, 261 Wis. 2d 45, 660 N.W.2d 686 (2003) (court may impose any sanction regardless of referee recommendation)
- Nussberger v. In re Disciplinary Proceedings Against Nussberger, 296 Wis. 2d 47, 719 N.W.2d 501 (2006) (discipline is generally progressive)
- Dade v. In re Disciplinary Proceedings Against Dade, 375 Wis. 2d 140, 895 N.W.2d 37 (2017) (court has imposed public reprimand despite prior reprimands)