In thе Matter of Disciplinary Proceedings Against Andrew J. Bryant, Attorney at Law: OFFICE OF LAWYER REGULATION, Complainant, v. Andrew J. BRYANT, Respondent.
No. 2012AP484-D
Supreme Court of Wisconsin
Decided June 24, 2014
2014 WI 43 | 847 N.W.2d 833
¶ 2. After thoroughly reviewing the parties’ stipulation, the referee‘s recommendation, and the record in this matter, we conclude that the stipulated facts demonstrate that Attorney Bryant committed all of the 15 counts of misconduct alleged in the OLR‘s complaint. We determine that the requested level of discipline, a four-month suspension, is an appropriate level of discipline to impose for Attorney Bryant‘s professional misconduct. While we agree with the referee that Attorney Bryant should be required to pay restitution to two former clients, we do not follow the referee‘s recommendation regarding the imposition of a monitoring program. We impose other conditions on Attorney Bryant‘s reinstatement that we believe will adequately ensure Attorney Bryant‘s ability to practice law and conform his conduct to the Rules of Professional Conduct for Attorneys.
¶ 3. Accоrding to the referee‘s report, Attorney Bryant was admitted to the practice of law in Wisconsin in 1992. He most recently practiced as a solo attorney in Verona.
¶ 4. Attorney Bryant has received professional discipline on one prior occasion. In January 2012 Attorney Bryant received a consensual private reprimand arising out of his representation of a client in a post-divorce proceeding regarding the modification of child support. Private Reprimand, No. 2012-01. His misconduct in that matter included a lack of competence, a lack of diligence, a failure to consult with his client regarding the means by which the objectives of the representation were to be pursued, and a failure to keep his client adequately informed.
¶ 5. In addition, although it does not qualify as the imposition of professional discipline, it should be noted that in 2012 this court issued two separate orders temporarily suspending Attorney Bryant‘s license due to his willful failure to cooperate with OLR grievance investigations. Both of those temporary suspensions have remained in effect up to the date of this opinion.
Allegations of the Complaint
¶ 6. The OLR‘s complaint in this matter alleged 15 separate counts of misconduct arising out of three client representations and the practice of law during a period of suspension.
¶ 7. The first count of the OLR‘s complaint alleged that Attorney Bryant had failed to pay his bar dues and supreme court assessments and to provide a signed trust account certification, all of which were due
¶ 8. Counts two through six of the complaint related to Attorney Bryant‘s representation of V.F. and J.R., who were husband and wife. In September 2009 the couple retained Attorney Bryant for the purpose of filing a joint petition for divorce. Attorney Bryant did not obtain a written conflict waiver for the representation of both individuals. He told V.F. that the entire representation could be completed for $1,500 so V.F. gave Attorney Bryant a check for that amount. Attorney Bryant deposited the funds into his business account but did not follow any of the requirements for the advanced fee alternative procedure in
¶ 9. Shоrtly after his initial meeting with V.F. and J.R., Attorney Bryant prepared a joint petition for divorce, obtained the signatures of both spouses, and filed the petition in the Dane County circuit court. In November 2009 Attorney Bryant spoke with V.F. about the need to obtain an expedited divorce hearing due to the deteriorating mental competence of J.R. Attorney Bryant promised to prepare and submit a proposed Marital Settlement Agreement (MSA) to V.F. for his review. In January 2010 Attorney Bryant met with both V.F. and J.R. to review their financial disclosure state-
¶ 10. In May 2010 the circuit court issued a notice stating that due to inactivity in the matter, it would place the divorce action on the June 25, 2010 docket for possible dismissal. Neither Attorney Bryant nor either of the parties appeared before the circuit court on June 25, 2010, causing the court to dismiss the action. The court issued a written order of dismissal in early July 2010.
¶ 11. Attorney Bryant did not notify his clients of the dismissal. Indeed, V.F. and J.R. did not receive any correspondence from Attorney Bryant from September 2009 through September 2010. Around that time V.F. learned from his daughter that the divorce action had been dismissed. On several occasions he asked Attorney Bryant to re-file the divorce petition, but Attorney Bryant did not do so. In December 2010 V.F.‘s daughter sent multiple e-mails to Attorney Bryant again asking him to re-file the divorce petition and to seek an expedited hearing. Finally, on December 16, 2010, Attorney Bryant re-filed the divorce petition, although he did not ask for an expedited hearing.
¶ 12. On February 1, 2011, V.F. terminated Attorney Bryant‘s representation and retained Attorney Anthony Menting to proceed with the divorce action. On that same date Attorney Menting sent a draft stipulation and order for substitution of counsel to Attorney Bryant and also requested that Attorney Bryant provide a complete copy of his file on the matter. Attorney Bryant did not provide the file or otherwise respond to the letter. Attorney Menting sent another letter to Attorney Bryant regarding these matters in mid-
¶ 13. On March 29, 2011, Attorney Bryant sent an invoice to V.F. The invoice sought $800 for Attorney Bryant‘s fees and $369 for disbursed costs. Attorney Bryant offered to return the remainder of the $1,500 advanced fee ($331) tо V.F. On June 24, 2011, Attorney Bryant sent a check to V.F. in the amount of $331 pursuant to his offer. V.F. rejected the check.
¶ 14. The complaint alleged that Attorney Bryant had committed five ethical violations in connection with his representation of V.F. and J.R. By representing two individuals in a joint divorce petition without obtaining a written waiver of the conflict, Attorney Bryant violated
¶ 15. Counts seven through twelve of the complaint related to Attorney Bryant‘s representation of client M.C. Attorney Bryant was retained by M.C. as successor counsel in a personal injury lawsuit that M.C. had filed arising out of injuries he had suffered in a motor vehicle collision. Attorney Bryant first appeared on M.C.‘s behalf at a scheduling conference held on
¶ 16. Due to Attorney Bryant‘s noncompliance, the circuit court held a second scheduling conference on May 14, 2010. At that time, three months after the initial deadline, Attorney Bryant filed M.C.‘s list of expected lay and expert witnesses. Attorney Bryant named all of M.C.‘s treating physicians and a vocational expert. At the second scheduling conference, the circuit court required M.C. to provide all expert witness reports by July 16, 2010. The resulting scheduling order contained the same warning about possible sаnctions for noncompliance as had been in the first scheduling order. Despite the warning, Attorney Bryant failed to provide the expert witness reports by the scheduled date and did not seek an extension of the deadline.
¶ 17. Attorney Bryant‘s noncompliance caused the defendants to file a motion for sanctions. Attorney Bryant did not file a written response to the motion. After holding a hearing on the motion on August 26, 2010, the court decided not to impose sanctions at that time. It issued a third scheduling order, which extended the deadline for submitting expert witness reports until October 8, 2010. This order again contained the warning about the possibility of sanctions in the event of noncompliance. It also specifically provided that if the expert witness reports were not submitted by the new
¶ 18. The defendants renewed their motion for sanctions, seeking an order prohibiting M.C. from introducing any expert testimony. Attorney Bryant did not file a written response to the motion or advise M.C. that the motion had been filed. On October 25, 2010, the court entered an order in which it required M.C. within 10 days to pay to the defendants’ counsel the $1,087.50 in attorney fees that had been incurred in connection with the August 26, 2010 hearing on the defendants’ original motion to compel. Attorney Bryant did not pay the sanction himself or notify M.C. that he had been ordered to pay the defendants’ attorney fees.
¶ 19. In November 2010 the defendants filed a motion to dismiss due to M.C.‘s failure to prosecute and the noncompliance with the various court orders. Attorney Bryant again did not file a response or notify M.C. that such a motion had been filed. Finding that the plaintiff‘s failure to comply with its orders had been egregious, the circuit court granted the motion to dismiss. It issued a formal order of dismissal with prejudice on January 6, 2011. Attorney Bryant did not inform M.C. that his complaint had been dismissed and could not be re-filed.
¶ 20. On February 28, 2011, M.C. met with Attorney Bryant to discuss his case. At that time Attorney Bryant admitted that he had acted improperly, that M.C.‘s case had been dismissed with prejudice, and that M.C. would not be able to obtain any recovery for his injuries.
¶ 21. According to Attorney Bryant‘s file, during the nearly one-year period in which he had represented
¶ 22. The complaint alleged six counts of misconduct related to Attorney Bryant‘s representation of M.C. Count Seven of the complaint alleged that Attorney Bryant had violated
communication also formed the basis for Count Eleven
¶ 23. The last set of counts in the complaint related to Attorney Bryant‘s representation of C.H., a respondent in a divorce action. Attorney Bryant apparently entered an appearance in the divorce action after it had been pending for a substantial amount of time. On September 5, 2007, approximately six months after he entered his appearance on C.H.‘s behalf, opposing counsel sent proposed findings of fact, conclusions of law, and a judgment of divorce (the judgment) to Attorney Bryant for his review pursuant to a directive from the court. On October 24, 2007, opposing counsel sent a letter to the circuit court stating that Attorney Bryant had not responded to the proposed judgment. On October 30, 2007, opposing counsel filed a motion for contempt, which was noticed fоr hearing on November 28, 2007. On that same date the court signed the proposed judgment without receiving any comments on the document from Attorney Bryant. One provision of the judgment was that D.H., C.H.‘s spouse, was to
¶ 24. On November 28, 2007, Attorney Bryant filed a notice of appeal from the judgment of divorce signed by the circuit court. On that same date, the circuit court conducted a hearing on D.H.‘s motion for contempt. The court found C.H. in contempt and ordered her to prepare a Qualified Domestic Relations Order (QDRO) that would transfer specified assets to D.H.
¶ 25. Attorney Bryant subsequently contacted Jewel Goodwin at NML regarding the transfer of the specified assets to D.H. Goodwin informed Attorney Bryant that NML required a copy of the court‘s judgment before it would transfer the assets. On December 28, 2007, Attorney Bryant sent NML a copy of the notice of appeal he had filed rather than a copy of the judgment. His communication informed NML that C.H. had “appealed the entire decision.” On the basis of this representation and document, NML did not transfer the assets to D.H.
¶ 26. When D.H.‘s counsel had not received a draft QDRO by January 10, 2008, he requested a status conference with the circuit court. The court subsequently issued an order directing Attorney Bryant to draft the QDRO consistent with the court‘s judgment. On February 18, 2008, D.H.‘s counsel sent a letter to Attorney Bryant inquiring about the status of the QDRO. On April 1, 2008, D.H.‘s counsel sent a letter to the circuit court complaining that he had still not received a completed QDRO from Attorney Bryant. In late May 2008, the court ordered Attorney Bryant to pay $500 to opposing counsel for his fees connected
¶ 27. In October 2009 the court of appeals affirmed the circuit court‘s judgment of divorce. Shortly thereafter, D.H. sent a copy of the court of appeals’ decision to Goodwin at NML, who forwarded the information to Connie Piskula, who handled IRA matters. Although the circuit court‘s judgment had now been affirmed on appеal, on October 29, 2009, Attorney Bryant sent a facsimile transmission to Piskula, which stated that “the status of the case is pending, issues remain unresolved and no distributions or changes to accounts or policies should be made at this time.” On November 3, 2009, Attorney Bryant telephoned Piskula and told her to wait on the transfer of the assets to D.H. because Attorney Bryant had filed a motion for rehearing. This was a false statement because he had not filed any such motion.
¶ 28. On November 17, 2009, Piskula sent a facsimile transmission to Attorney Bryant, which recited the statements he had made during the telephone call on November 3, 2009, and asked for a copy of the motion for rehearing. The communication further advised Attorney Bryant that if Piskula did not receive a copy of the motion by November 20, 2009, she would lift all transfer restriсtions on C.H.‘s accounts. Attorney Bryant did not respond. Consequently, NML transferred ownership of the IRAs and the annuity to D.H. on December 1, 2009, more than two years after the entry of the divorce judgment.
¶ 29. In a hearing held shortly after the transfer of the accounts to D.H., the circuit court described Attorney Bryant‘s statements in the matter as “misleading,” “not truthful” and “undertaken for the purpose of delay.”
¶ 30. The complaint alleged three counts arising out of Attorney Bryant‘s representation of C.H. and his interactions with NML. By taking steps to delay the transfer of ownership of the IRA and annuity accounts, when Attorney Bryant knew that such actions would serve merely to harass or injure D.H., Attorney Bryant violated
Procedural History before the Referee
¶ 31. Attorney Bryant did not file an answer to the complaint. After the referee was appointed, Attorney Bryant reached a stipulation with the OLR. The stipulation was not set forth in a written document signed by the parties. Rather, at a May 17, 2012 hearing
¶ 32. During the examination, the OLR‘s counsel obtained statements from Attorney Bryant that he understood the allegations of the complaint, that he was not being coerced into entering into the stipulation, that no one had promised him anything to enter into the stipulation, that he understood that he had a right to consult with and be represented by counsel, that he was waiving his right to counsel, and that he was entering the stipulation freely and voluntarily.
¶ 33. Following the examination conducted by counsel for the OLR, the referee also asked a series of questions of Attorney Bryant. One of the questions the referee asked was whether there was anything Attorney Bryant wished the referee to know before she prepared her report. Attorney Bryant spoke in response about having a sense of remorse and about accepting responsibility for his misconduct. During this part of the hearing, Attorney Bryant also agreed to repay the entire $1,500 advanced fee to V.F. and J.R. He did not mention any specific factors that had caused him to engage in the misconduct.
¶ 34. Over the next several months following this hearing, the referee asked the parties to provide information regarding Attorney Bryant‘s employment history so she could consider that in the context of preparing her report and sanction recommendation. Shе was interested in particular whether there was a reason why Attorney Bryant‘s conduct had changed after having practiced approximately 13 years without any misconduct. The referee specifically asked whether Attorney Bryant had experienced any mental health or substance abuse problems.
¶ 35. Attorney Bryant did not respond to the referee‘s repeated requests for information. The OLR on multiple occasions advised the referee that it was unaware of any issues related to mental health or substance abuse and that there was no evidence regarding those matters in the record of the proceeding. It stated that its file in the matter did not “indicate the need to explore such issues.”
¶ 36. On September 13, 2012, the OLR‘s counsel sent a letter to the referee, stating that an OLR investigator had received a letter indicating that Attorney Bryant was receiving treatment for mental health issues. It again asserted that it had not possessed any information regarding this issue prior to this letter.
¶ 37. On September 18, 2012, the referee filed her report and recommendation. Based on Attorney Bryant‘s stipulation, the referee found that the allegations of the complaint had been admitted and that Attorney Bryant had violated each of the rules as alleged in the 15 counts of the complaint.
¶ 38. Turning to the issue of the appropriate level of discipline, the referee agreed with the parties that a four-month suspension of Attorney Bryant‘s license to practice law in this state would be proper. She added a
¶ 39. In the discussion section of her report, the referee commented that Attоrney Bryant had been “very remorseful” for his actions and had “exhibited genuine concern for his conduct.” The referee also raised the issue of mental health or substance abuse problems. She acknowledged that there was no evidence in the record regarding such issues. Moreover, the referee stated that at the May 17, 2012 hearing Attorney Bryant had appeared coherent, had acknowledged the nature of his behavior, and had accepted responsibility for his misdeeds. The referee explained
Post-report Proceedings in this Court
¶ 40. Within a week after the referee filed her report in this matter, the OLR received a letter from one of Attorney Bryant‘s health care providers. The provider stated that he was writing at the request of and with the permission of Attorney Bryant. The letter described health issues which were then affecting Attorney Bryant and which had led to symptoms that included problems with memory, concentration, and the ability to make decisions. The letter further stated that due tо those health issues, Attorney Bryant was unable at that time to respond to complaints that had been filed with the OLR. It requested that the OLR temporarily suspend all administrative proceedings involving Attorney Bryant.
¶ 41. Although the referee had expressed concern about the reasons for Attorney Bryant‘s misconduct and whether any underlying problems had been resolved, there is no indication that the OLR provided a copy of the letter to the referee in this matter. The OLR also did not file a copy of the letter in this proceeding. It did file a copy of the letter in a miscellaneous court file
¶ 42. As a result of the contents of this letter, this court subsequently issued an order on May 24, 2013, requiring responses from both Attorney Bryant and the OLR. The court‘s order asked the parties to provide an update on the status of Attorney Bryant‘s health, to discuss whether he was currently able to participate in disciplinary investigations and proceedings, whether his health problems had any impact on his ability to make a knowing and voluntary decision to enter into the stipulation in this case, and whether he had a basis or a desire to assert in this case that the sanction for any misconduct found in this case should be mitigated because of health problems during the time of the misconduct.
¶ 43. Attorney Bryant‘s substantive response to the court‘s order stated that his health had improved over the preceding several months and that he was now able to participate in all disciplinary investigations and proceedings. The response further stated that while his health problems had affected the energy and commitment with which he had dealt with the proceedings before the referee, his decision to enter into the stipulation and waive certain rights had been made knowingly, intelligently and voluntarily. Finally, the response asserted that while his health problems had been a contributing factor in his failures to perform diligently and competently in the cases at issue in this proceeding, he did not wish to argue in this proceeding that his misconduct had been caused by his health problems. He stated that he continued to stand by the stipulated request for a four-month suspension of his license to practice law in Wisconsin.
¶ 44. When we review a referee‘s report and recommendation in an attorney disciplinary proceeding, we affirm a referee‘s findings of fact unless they are found to be clearly erroneous, but we review the referee‘s conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶ 5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline given the particular facts of each case, independent of the referee‘s recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶ 44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶ 45. In light of Attorney Bryant‘s stipulation, we accept the referee‘s findings of fact based on the OLR‘s complaint. We further agree with the referee that those findings support the legal conclusion that Attorney Bryant committed the ethical violations alleged in each of the 15 counts of the OLR‘s complaint.
¶ 46. Turning to the issue of sanction, we determine that a four-month suspension is an appropriаte level of discipline to impose in light of the facts of this case. Given the presence of prior discipline, the number of counts of misconduct, the number of clients impacted by the misconduct, and the seriousness of the misconduct, a suspension is clearly required. Recognizing that each case is unique in its facts, a four-month suspension here is supported by the cases cited by the OLR in its sanction memorandum to the referee. See In re Disciplinary Proceedings Against Hammis, 2011 WI 3, 331 Wis. 2d 19, 793 N.W.2d 884; In re Disciplinary Proceedings Against Goldstein, 2004 WI 87, 273 Wis. 2d 517, 681 N.W.2d 891.
¶ 47. We also agree with the referee that Attorney Bryant should be ordered to pay restitution to V.F. and J.R. in the amount of $1,500. Attorney Bryant has explicitly agreed that restitution in this amount is “due and owing.”
¶ 48. We differ from the referee, however, with respect to her recommendation regarding the imposition of conditions on Attorney Bryant‘s reinstatement. We share the referee‘s concern that something appears to have changed in Attorney Bryant‘s practice of law that led him into running afoul of the Rules of Professional Conduct after years of properly practicing law. We were particularly concerned by the letter submitted by Attorney Bryant‘s health care provider which stated that in 2012 Attorney Bryant was incapable of participating in disciplinary proceedings or even responding to OLR‘s investigatory requests. Attorney Bryant through his counsel, however, has stated that his health has improved. The OLR, which has been continuing to deal with Attorney Bryant in another pending proceeding, has not advised this court that his health problems are still rendering him unable to make reasoned decisions or otherwise act with the judgment required of an attorney. Moreover, we note that Attorney Bryant has sought treatment for the problems that have afflicted him.
¶ 49. For all of these reasons, we do not think it necessary to require Attorney Bryant to submit to an extended monitoring program administered by WisLAP. In order to ensure that Attorney Bryant‘s health will be in a sufficient condition to allow him to resume the
¶ 50. Finally, we turn to the issue of the costs of this proceeding. Attorney Bryant has not objected to the statement of costs submitted by the OLR. Because there are no factors present in this case that would lead us to deviate from our general policy of imposing all costs on an attorney who has been found to have committed professional misconduct, we require Attorney Bryant to pay the full costs of this proceeding.
¶ 51. IT IS ORDERED that the license of Andrew J. Bryant to practice law in Wisconsin is suspended for a period of four months, effective the date of this order.
¶ 52. IT IS FURTHER ORDERED that, as a condition of the reinstatement of his license to practice law in Wisconsin, Andrew J. Bryant shall take the following actions: (1) obtain a satisfactory mental health evaluation, at his own expense, in which the
¶ 53. IT IS FURTHER ORDERED that within 60 days of the date of this order, Andrew J. Bryant shall pay restitution in the amount of $1,500 to V.F. and J.R.
¶ 54. IT IS FURTHER ORDERED that within 60 days of the date of this order, Andrew J. Bryant shall pay to the Office of Lawyer Regulation the costs of this proceeding.
¶ 55. IT IS FURTHER ORDERED that the restitution specified above is to be completed prior to paying costs to the Office of Lawyer Regulation.
¶ 56. IT IS FURTHER ORDERED that Andrew J. Bryant shall continue compliаnce with the provisions of
¶ 57. IT IS FURTHER ORDERED that compliance with all conditions of this order is required for reinstatement. See
¶ 58. PATIENCE DRAKE ROGGENSACK, J. (concurring). While I concur in the court‘s decision, I write separately because I would not require as a condition of reinstatement that Attorney Bryant execute medical releases that authorize the OLR for a