State v. Rysticken

26 N.W.2d 456 | Wis. | 1947

The defendant was admitted to the practice of the law August 11, 1929. At the time of the trial, he was forty-three years of age and had been married but was divorced. After his admission to practice he continued to work for an insurance company until 1937 when he opened an office with his brother. After six months his brother left and he continued the practice alone. In 1943 he was employed by the Office of Price Administration and in May of that year left the OPA and was employed at the Allis-Chalmers plant in Milwaukee until July, 1944, when he was injured and laid off. When he recovered he went to work for the Globe Steel Tube Company until he broke his leg in February of 1946. At the time of the hearing, he was still incapacitated by reason of his injury.

In February, 1943, Stanley Selvent and Adolph Strelke became involved in an altercation with Michael Kashuba. The trouble arose over a dispute about rent. Kashuba, by his attorney, Walter Steininger, commenced an action for assault and battery against Selvent and Strelke, in the civil court of Milwaukee county. At the request of Selvent and Strelke, the defendant met them; they gave him a statement of the facts and retained the defendant to file a counterclaim on behalf of each defendant. The defendant demanded a fee of $50 as retainer, $30 of which was paid at the time. The defendant called Steininger, the plaintiff's attorney, and at his request the matter was adjourned for two weeks to March 12, 1943, to permit an answer to be filed. The defendant prepared an answer and counterclaim for each defendant, which were verified on March 6, 1943. Selvent at that time paid the balance of his share of attorney fees but Strelke did not. The defendant did not serve a notice of retainer and failed to serve copies or file the originals of the answers and counterclaims, and as a result, on March 17th, proof was taken and judgment was entered for $370.90 damages and costs against the defendants. On April 2, 1943, an execution was issued which was immediately served upon both defendants, and returned wholly unsatisfied on April 9th. Upon service of the execution Strelke and Selvent and their wives called upon the defendant to ascertain what the situation was. The defendant evinced surprise at the entry of the judgment and requested them to return the following week. In the meantime he would examine the records. He made an examination of the records and at the meeting the following week informed Strelke and Selvent that there was nothing to worry about and that he would take care of it for them and have the judgment set aside. He then requested Steininger to stipulate to vacate the judgment and have the case set down for trial. Steininger, however, because of the bitterness existing between the parties, refused to so stipulate. Strelke and his wife then consulted Nathan Rakita, a practicing attorney, and at their request he instituted an action against Kashuba. On May 18, 1943, Strelke and Selvent and their wives went to the defendant's office where Strelke demanded the return of the money paid to the defendant for fees. The defendant stated that he would refund the money but assured the parties that he would take care of the matter and that it was not necessary for them to employ another attorney. He then executed and delivered to them an agreement in which he undertook to hold Strelke and Selvent free from any damage due to neglect on his part. In reliance thereon, Strelke and his wife took no further action on the rent-overcharge case.

The defendant then consulted Judge GAUSEWITZ as to the proper procedure to be followed to have the judgment set aside. The judge gave him the desired information whereupon the defendant drafted an affidavit for himself as attorney and also prepared affidavits for Strelke and Selvent which were presented to them for their signature. Selvent signed his affidavit but Strelke either refused or neglected to sign the affidavit. The defendant then procured an order to show cause which was not served, returnable on July 16, 1943. The defendant intended to attach the original answers and counterclaims and Selvent and Strelke's affidavits to it but because Strelke did not sign the affidavit, he failed to serve the order to show cause and did not press his motion. Inquiry was made of the defendant from time to time during the ensuing months as to when the case would be heard but clients were informed that nothing had been done.

Instead of bringing on a motion to set aside the judgment, defendant continued to negotiate with Steininger for a reduction and compromise of the judgment. He made no offer of settlement, however, and Steininger never offered to reduce the amount of the judgment. On May 4, 1944, Steininger instituted supplementary proceedings against the defendants. The defendants then retained Eugene Posner, an attorney, to represent them. They paid Mr. Posner $75 for his services. Posner immediately got an order to show cause why the judgment should not be vacated, which after several adjournments was heard on July 18, 1944, and was denied by the court for want of jurisdiction. In September, 1944, Strelke complained to the grievance committee of the Milwaukee Junior Bar Association and he appeared for such a hearing on November 8th. The grievance committee procured a tentative offer of compromise of the judgment for $325 and requested the defendant to take action to settle the judgment. The defendant was financially embarrassed, made some effort to raise the money, but did nothing to dispose of the liability of his clients. On April 21, 1945, the defendant was summoned to appear before the Board of State Bar Commissioners with whom the grievance committee had filed a complaint. The bar commissioners informed him that the board would take no further action until September 1, 1945, and instructed the defendant to confer with a competent attorney and have the matter adjusted and report back to the board. No report was received by the board and in January, 1946, the board filed a complaint with the court. He appears in the present proceeding by his attorney, Evan C. Schwemer, and on May 6, 1946, prior to the service of his answer secured from his family the funds with which to satisfy the judgment, and on that date the judgment was paid and satisfied of record. No charge of dishonesty or misappropriation of funds is made against the defendant. The undisputed facts show that the defendant is guilty of malpractice and gross negligence. The referee to whom the matter was referred by the court found that the conduct of the defendant amounted to no more than excusable neglect, and that the defendant should not be disciplined because of the refusal of one of his clients to co-operate with him in obtaining the opening of the judgment and order to set aside the judgment, and recommended that the complaint be dismissed. Not until the defendant was ordered to appear before the board of bar commissioners did he take any steps to carry out the promise which he had made to his clients. Restitution was made by way of paying the judgment on May 6, 1946. The action against Selvent and Strelke was commenced in February, 1943.

We would gladly acquiesce in the disposition made of this matter by the referee if under the facts we could consider that we had fully discharged our duty in the premises. However, we feel that to permit the defendant to continue to hold himself out as a lawyer would be to hold that his conduct set out in detail was not a proper matter of discipline, and would be an assurance to the public that the defendant, in spite of what he had done or failed to do, was worthy to be trusted with the business of possible clients.

That the conduct of the defendant, while it does not involve moral turpitude, amounts to gross professional misconduct is apparent. While any one of his derelictions, if it stood alone, might possibly be overlooked, the record made by the defendant in this case shows an utter disregard of his duty to his clients, in the following respects: (1) He was retained by his clients and paid a retainer fee; (2) he agreed to prepare and file an answer and asked that the matter be continued for two weeks to enable him to fulfil his promise; (3) although he prepared an answer which was verified, he did not serve it nor did he serve a notice of retainer; (4) he paid so little attention to the matter that judgment was entered of which he had no knowledge until an execution had been issued against his clients; (5) he asked for a postponement of a week in order to examine the records which he did and was informed how he should proceed to open or vacate the judgment, assuring his clients there was nothing to worry about; (6) he continued negotiations for a reduction of the judgment although he was informed that no reduction would be made; (7) to allay the fears of his clients, he made a written agreement to save them harmless but neglected for a period of two years to do anything in the way of disposing of the judgment; (8) he finally procured an order to show cause which he failed to serve; (9) his clients then retained another attorney and it was discovered that the time in which the judgment could be opened had expired; (10) when the matter was placed before the grievance committee of the Milwaukee Junior Bar Association, he appeared. Some member of the committee procured an offer of compromise and requested the defendant to settle the judgment. This he did not do; (11) when summoned before the Board of State Bar Commissioners, with whom the grievance committee had filed a complaint, he was given four months in which to adjust the matter. At the expiration of that period, having heard nothing from him, the present proceeding was instituted.

The conduct of defendant is inexcusable. By his delay in and management of the case the state has been put to considerable expense wholly unnecessary. His clients have been put to considerable loss, and he has done nothing toward enforcing the claim which they thought they had against the plaintiff in the action instituted by Steininger. That the defendant's conduct merits some discipline is evident but it is a difficult matter to determine the extent of the discipline. It seems doubtful whether suspension will impress upon the defendant the extent of his derelictions of duty to his clients and bring about a reformation in his methods of doing business. With some misgiving, the court has concluded to give him the benefit of the doubt.

It is ordered, that the defendant be suspended from the practice of law in the state of Wisconsin for a period of two years from January 1, 1947, and until he pays the costs and disbursements of this proceeding and gives the court assurances that if the suspension is vacated he will discharge in the future the obligations which he assumed when he took the oath upon his admission to the bar. If the defendant fails to comply with the above conditions and file evidence thereof with the clerk of the court on or before July 1, 1949, his license to practice shall stand revoked and his name shall stand as stricken from the rolls.