In re Disciplinary Proceedings Against Usow
In re Disciplinary Proceedings Against Usow
Opinion of the Court
¶ 1. We review the recommendation of the referee that the license of Herbert L. Usow to practice law in Wisconsin be suspended for six months as discipline for professional misconduct. That
¶ 2. Attorney Usow was admitted to the Wisconsin bar in 1948 and practices in Milwaukee. He has been disciplined twice previously. In 1984, the court suspended his license for 90 days as discipline for representing both a corporation and one of its shareholders when that multiple representation adversely affected his representation of the corporation, giving the appearance of professional impropriety in the matter, disbursing funds belonging to the corporation to one of the shareholders, engaging in conduct involving dishonesty and misrepresentation, acting in the presence of conflicting interests, and taking his fees without his client's consent from client funds held in trust and without giving a proper accounting of client funds. Disciplinary Proceedings Against Usow, 119 Wis. 2d 255, 349 N.W.2d 480. In 1985, the court again suspended his license for 90 days, this time as discipline for failing to make a distribution of proceeds in a divorce proceeding pursuant to a stipulation and for misrepresenting to the court in a civil action that he had retained a private investigator and that the inves
¶ 3. Following a disciplinary hearing, the referee in the instant proceeding, Attorney John Decker, made findings of fact concerning Attorney Usow's representation of a client in a divorce action and his conduct during the Board's investigation of it. When the client retained him to represent her in June, 1994, Attorney Usow required and received a $2500 retainer, in return for which he agreed to provide approximately 16.5 hours of legal services, with subsequent services to be charged at a $150 hourly rate. At the time that representation was undertaken, the client was involuntarily committed to a mental health unit as a result of the consequences of a stroke.
¶ 4. In addition to the retainer, Attorney Usow subsequently received funds belonging to the client totaling approximately $1517. Those funds were sent to him in the form of checks that included dividends on the client's investments and support payments from her spouse. Some of those checks were deposited by Attorney Usow or by his office staff into his client trust account and others into his law office account. Attorney Usow had instructed his staff to use her own discretion in determining into which account the checks were to be deposited.
¶ 5. In early October, 1994, the client's condition improved, and she determined that she no longer wanted a divorce but wished to reconcile with her spouse and have the action dismissed. The day following her meeting with him to inform him of that fact, Attorney Usow withdrew the client's funds that remained in his trust account, totaling $719.24, with
¶ 6. On November 26, 1994, Attorney Usow sent the client a bill in the amount of $4500 for his representation over a period of five months. The bill was not accompanied by any itemized statement of services rendered and did not show any credit for the retainer the client had paid or for her funds Attorney Usow had received and deposited into his law office account or his client trust account.
¶ 7. The following month, the client asked Attorney Usow for a particularized accounting of the hours for which she had been billed and a credit for the retainer she had paid, as well as a listing of all of her property that was in his possession. When that information was not provided, the client made a second request and ultimately met with Attorney Usow in February, 1995. Following that meeting, Attorney Usow signed the stipulation for dismissal of the divorce action that had been prepared by the attorney for the client's spouse and agreed to return the client's treasury bonds in his possession. He delivered those bonds to the spouse's attorney the following day.
¶ 8. On March 1, 1995, Attorney Usow sent the client a copy of his original bill, showing a balance of $4500, but not an itemized statement of services rendered or a credit for the retainer or the client's other
¶ 9. The arbitration panel determined that Attorney Usow's file records were inadequate to support an award of more than $3525, or 23.5 hours of service. The panel expressed its opinion that Attorney Usow had spent more than that amount of time on the matter but stated that his lack of records made it impossible to determine the actual time spent. The arbitrators specifically did not find that the hours claimed by Attorney Usow had not actually been spent on the client's matter.
¶ 10. The accounting Attorney Usow appended to his answer in the arbitration matter contained duplica-tive, speculative and inflated charges, due primarily to carelessness and neglect, as well as Attorney Usow's failure to provide adequate supervision of his office staff. For example, the accounting did not identify the person performing specific services, despite the fact that others, including an associate and a law clerk, each of whom had lower hourly billing rates, worked on the matter. Also, the accounting misrepresented the services provided in several respects. It listed three contacts with opposing counsel, but, based on that attorney's contemporaneous records, the referee found that those contacts had not occurred. It set forth that it
¶ 11. The referee concluded that by causing the accounting to be sent to his client and to the fee arbitration panel, Attorney Usow engaged in conduct involving misrepresentation as to the amount and date. of legal services he rendered, in violation of SCR 20:8.4(c).
¶ 12. In his initial response to the grievance concerning his conduct in this matter, Attorney Usow stated to the Board that he always had given the client .written itemizations of the services he had rendered. He subsequently acknowledged that, with the exception of the accounting in which he set forth his notes of the representation, he never provided the client written itemizations of services he claimed to have rendered. The referee concluded that Attorney Usow thus made a false statement of material fact or a misrepresentation in a disclosure in connection with the Board's investigation, in violation of SCR 22.07(2).
¶ 14. We adopt the referee's findings of fact and conclusions of law and determine that the recommended six-month license suspension is appropriate discipline to impose for Attorney Usow's professional misconduct established in this proceeding. The serious nature of that misconduct, particularly the potential it created for financial harm to the client, warrants discipline more severe than previously imposed on Attorney Usow for similar misconduct. In addition to that license suspension, we require that Attorney Usow pay the costs of this disciplinary proceeding, as the referee had recommended.
¶ 15. It Is Ordered that the license of Herbert L. Usow to practice law in Wisconsin is suspended for a period of six months, commencing January 12,1998.
¶ 16. It Is Further Ordered that within 60 days of the date of this order, Herbert L. Usow pay to the Board of Attorneys Professional Responsibility the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a show
¶ 17. It Is Further Ordered that Herbert L. Usow comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.
SCR 20:8.4 provides, in pertinent part:
Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
SCR 20:1.15 provides, in pertinent part:
Safekeeping property
(a) A lawyer shall hold in trust, separate from the lawyer's own property, property of clients or third persons that is in the lawyer's possession in connection with a representation. All funds of clients paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c) maintained in a bank, trust company, credit union or savings and loan association authorized to do business and located in Wisconsin, which account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import, and no funds belonging to the lawyer or law firm except funds reasonably sufficient to pay account service charges may be deposited in such an account. ...
SCR 20:1.15 provides, in pertinent part:
Safekeeping property
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.
SCR 22.07 provides, in pertinent part:
Investigation.
(2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a*603 request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.
Reference
- Full Case Name
- In the Matter of Disciplinary Proceedings Against Herbert L. Usow, Attorney at Law
- Cited By
- 14 cases
- Status
- Published