Office of Lawyer Regulation v. Gerald P. Boyle

365 Wis. 2d 649 (2015) · Supreme Court of Wisconsin · December 23, 2015 · No. 2014AP482-D

Summary

The Wisconsin Supreme Court upheld findings that Gerald P. Boyle committed six counts of professional misconduct, including trust-account violations, failures concerning written fee agreements and advanced fees, failure to respond to a client's reasonable information requests, and lack of diligence and competence. The court suspended Boyle's Wisconsin law license for 60 days, required six continuing legal education credits in law office management and/or trust-account practices, imposed quarterly trust-account reporting for one year, and ordered payment of disciplinary costs.

Holdings

  1. Boyle violated SCR 20:1.15(b)(4) by depositing $65,000 in advanced fees from D.P. and $19,000 in advanced fees from R.G. into his firm's operating account without depositing them into trust or properly complying with the alternative fee-placement provisions of SCR 20:1.15(b)(4m).
  2. Boyle violated SCR 20:1.5(b)(1) and (2) by failing to communicate in writing the scope of representation, the fee basis or rate, changes to the fee arrangement, and the purpose and effect of advanced fee payments exceeding $1,000.
  3. Boyle violated SCR 20:1.4(a)(4) by failing to promptly comply with the client's repeated reasonable requests for information concerning the subpoena for telephone records.
  4. The Office of Lawyer Regulation need not prove that the client would have prevailed in the underlying litigation, or establish causation and damages through a legal-malpractice case-within-a-case, to prove a lawyer-discipline charge based on lack of diligence.
  5. Boyle violated SCR 20:1.3 by failing to act with reasonable diligence and promptness in representing D.P.
  6. Boyle violated SCR 20:1.1 by failing to provide competent representation; the Office of Lawyer Regulation was not required to prove that the client would have succeeded on the unlitigated Deceptive Trade Practices Act claims.
  7. A 60-day suspension, quarterly trust-account reports for one year, six hours of continuing legal education in law-office management or trust-account practices, and payment of full disciplinary costs were appropriate sanctions.

Questions Presented

  1. Whether Boyle violated the trust-account rules by depositing advanced fee payments into his firm's operating account without complying with the permitted alternative fee-placement requirements.
  2. Whether Boyle violated the written-fee-communication rules by failing to communicate in writing the scope of representation, the basis or rate of the fee, changes to the fee, and the purpose and effect of advanced fees.
  3. Whether Boyle violated the duty to communicate by failing to promptly comply with the client's reasonable requests for information about a subpoena.
  4. Whether a lawyer-discipline charge based on lack of diligence requires the Office of Lawyer Regulation to prove that the client would have prevailed in the underlying litigation.
  5. Whether Boyle failed to provide competent representation by allowing claims under Wisconsin's Deceptive Trade Practices Act to become time-barred and by failing to adequately prepare and pursue the client's claims.
  6. What discipline and conditions were appropriate for the six proven violations and Boyle's prior disciplinary history.

Disposition

other

Cases Cited (17)

  • United States v. Di Mucci, 879 F.2d 1488, 1494 (7th Cir. 1989)(followed)
  • Lewandowski v. Continental Casualty Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284 (1979)(distinguished)
  • Glamann v. St. Paul Fire & Marine Insurance Co., 144 Wis. 2d 865, 870, 424 N.W.2d 924 (1988)(distinguished)
  • In re Disciplinary Proceedings Against Harman, 137 Wis. 2d 148, 151, 403 N.W.2d 459 (1987)(followed)
  • In re Disciplinary Proceedings Against Anderson, 2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100(followed)
  • In re Disciplinary Proceedings Against Theobald, 2010 WI 102, 329 Wis. 2d 1, 786 N.W.2d 834(followed)
  • In re Disciplinary Proceedings Against Hahnfeld, 2007 WI 123, 305 Wis. 2d 48, 739 N.W.2d 280(followed)
  • In re Disciplinary Proceedings Against Kasprowicz, 2007 WI 67, 301 Wis. 2d 82, 732 N.W.2d 427(followed)
  • In re Disciplinary Proceedings Against Harris, 2010 WI 9, 322 Wis. 2d 364, 778 N.W.2d 154(followed)
  • In re Disciplinary Proceedings Against Fennig, 227 Wis. 2d 379, 595 N.W.2d 710 (1999)(followed)

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