Office of Lawyer Regulation v. Smead
2011 WI 102
| Wis. | 2011Background
- Smead admitted misconduct in three counts arising from representing M.R. after his 2007 license suspension.
- He failed to notify M.R. of the suspension or his inability to participate in the hearing.
- He did not provide an accounting of fees or refund unearned fees after suspension.
- He failed to respond to M.R.'s grievance and to OLR's investigations.
- The referee recommended a public reprimand with restitution; the Supreme Court adopted the referee, ordered restitution via unclaimed property, and declined to assess costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the misconduct warrants a public reprimand. | OLR: public reprimand warranted for sustained misconduct. | Smead: readily admits misconduct; supports reprimand. | Yes, public reprimand appropriate. |
| Whether Smead must pay restitution to M.R. | OLR: restitution required; amount warranted. | Smead agreed to restitution; treatment of funds debated. | Yes, restitution of $1,787.50; funds to be transferred to unclaimed property. |
| Whether costs should be assessed. | OLR: costs may be imposed. | Mitigating circumstances argued against costs. | No costs imposed. |
| Whether Smead violated SCR 22.26 by failing to notify client and participate in hearing. | Violation established. | Defense not contesting the violation. | Yes, SCR 22.26(l)(a)-(b) violated. |
| Whether Smead violated SCR 20:1.16(d) and SCR 22.03/22.04 by failing to respond and refund. | Violation established due to failure to account/refund and respond. | Acknowledged misconduct but mitigating factors present. | Yes, violations proven; disciplined accordingly. |
Key Cases Cited
- In re Disciplinary Proceedings Against Smead, 322 Wis. 2d 100 (2010 WI 4) (prior disciplinary proceedings and suspension context cited by court)
- In re Disciplinary Proceedings Against Tully, 283 Wis. 2d 124 (2005 WI 100) (de novo review of conclusions of law; standard of review for discipline)
- In re Disciplinary Proceedings Against Widule, 660 N.W.2d 686 (2003 WI 34) (discretion in imposing costs and consideration of extraordinary circumstances)