Office of Lawyer Regulation v. Robert J. Smead
2013 WI 19
| Wis. | 2013Background
- The Wisconsin Supreme Court reviews a referee's recommendation in disciplinary proceedings against Robert J. Smead for a client matter involving J.C.
- OLR filed a seven-count complaint on July 17, 2012 alleging misconduct arising from an advanced $2,000 fee, no written fee agreement, and no trust deposit.
- Smead filed a notice of appearance for J.C. on July 26, 2007; a motion to show cause for willful noncooperation was filed September 5, 2007, prompting a temporary suspension on October 10, 2007.
- Smead did not inform J.C., the presiding court, or the district attorney that his license had been suspended; he failed to provide status updates to J.C.
- J.C. learned of the suspension from others, requested a refund of the $2,000, which Smead did not provide; the Wisconsin Fund paid J.C. $2,000.
- The referee recommended a public reprimand; the Supreme Court adopted the recommendation, ordered a public reprimand and full costs of $1,699.03.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fee disclosure and scope written communication | OLR contends SCR 20:1.5(b)(1)-(2) violated | Smead contends no proper return, or dispute stated | Violation established |
| Deposition of unearned funds into trust | OLR contends SCR 20:1.15(b)(4) violated by non-deposit | Smead contends improper funds handling not shown | Violation established |
| Unreasonable fee for unfinished representation | OLR contends SCR 20:1.5(a) unreasonableness | Smead contends degree of reasonableness appropriate | Violation established |
| Inadequate communication with client about representation | OLR contends SCR 20:1.4(a)(2) violated by failure to respond | Smead contends communications were adequate | Violation established |
| Refund of unearned fees | OLR contends SCR 20:1.5(b)(3) and 20:1.16(d) violated | Smead contends refunds handled appropriately | Violation established |
| Notification of suspension to client, court, and prosecutor | OLR contends SCR 22.26(1)(a)-(c) violated | Smead contends no willful violation or mitigation | Violation established |
Key Cases Cited
- In re Disciplinary Proceedings Against Smead, 2010 WI 4 (Wis. 2010) (referee discipline standards and prior misconduct context)
- In re Disciplinary Proceedings Against Smead, 2011 WI 102 (Wis. 2011) (prior suspension and reprimand framework; due process considerations)
- Eisenberg, 269 Wis. 2d 43 (Wis. 2004) (standard of review for referee findings; de novo review of conclusions)
- Widule, 261 Wis. 2d 45 (Wis. 2003) (court authority to impose discipline notwithstanding referee recommendation)