Board of Attorneys Professional Responsibility v. Asher

Citations: 241 Wis. 2d 198; 2001 WI 12; 622 N.W.2d 746; 2001 Wisc. LEXIS 11Docket: No. 00-2661-D

Court: Wisconsin Supreme Court; February 27, 2001; Wisconsin; State Supreme Court

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Findings of fact and conclusions regarding Attorney Asher reveal multiple instances of unprofessional conduct violating professional conduct rules, leading to a recommendation for the revocation of his law license, restitution to clients, and payment of disciplinary costs. Attorney Asher, admitted to practice in Wisconsin in 1984, has no prior disciplinary history. He failed to respond to a Board complaint issued on October 2, 2000, leading to a default ruling by the referee on November 20, 2000, after which findings and recommendations were issued on November 22, 2000.

The disciplinary issues stem from Attorney Asher's operation of the Christian Law Center (CLC), which he founded, while also serving as a church minister and managing other businesses. In late 1999, he faced significant financial troubles, resulting in the closure of CLC and a failure to perform legal services for clients despite accepting retainer and filing fee payments. Between late 1999 and mid-2000, the Board received numerous client grievances, leading to allegations of 233 violations related to 58 clients. Key allegations include failure to deposit client funds into a trust account and engaging in dishonest conduct by misappropriating client funds. Attorney Asher's trust account was inactive during 1998-1999, while another account used for bankruptcy filing fees was not exclusively dedicated to this purpose.

Attorney Asher issued several checks from his filing fee account to himself and his employees, with seven checks from February and March 1999 returned due to insufficient funds. Following April 1998, no checks were written to the United States Bankruptcy Clerk, and the account was sporadically overdrawn before its closure in July 1998. Asher declared in August 1999 that he held no filing fees in trust for clients and subsequently failed to reimburse clients for fees not paid to the bankruptcy clerk. 

Asher has committed 51 violations of SCR 20:1.15(a) and 51 violations of SCR 20:8.4(c), with $8,900 converted from clients' fees. Additionally, he faces 53 violations of SCR 20:1.16(d) concerning unearned fees amounting to $33,811.50, as he failed to file bankruptcy cases for clients who had paid retainers. He also committed 18 violations of SCR 20:1.3 for not acting with reasonable diligence in timely filing bankruptcy actions after receiving full payment. Furthermore, there are three violations of SCR 20:1.4(a) for failing to keep clients informed about their matters, as clients reported inadequate communication from Asher's staff.

Additionally, Asher has one violation of SCR 20:1.16(a)(3) for representing a client after discharge. Lastly, he committed 56 violations of SCR 22.07(3) for failing to cooperate with the Board's investigation, responding to only one of 58 inquiries, with many inquiries returned marked as refused or undeliverable.

The referee's recommendation for Attorney Asher’s discipline has been adopted, aligning with the Board's request due to serious professional misconduct involving multiple failures with clients and Board obligations. Consequently, Attorney Asher's law license in Wisconsin is revoked. He is required to make restitution of $8,900 for converted funds and $33,811.50 for unearned fees within 60 days, along with paying $1,361.25 in proceeding costs. The September 13, 1999, acceptance of Asher's resignation from the State Bar is vacated, and he must comply with SCR 22.26 regarding revoked licenses. Payments to clients will accrue interest at 5% from July 1, 2000. The attorney disciplinary process underwent changes on October 1, 2000, including a name change from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation. Since the misconduct occurred before this date, references will be to the previous Board and Supreme Court rules. The referee must file a report within 30 days of the hearing's conclusion, and either party can appeal within 20 days. Asher had resigned prior to many client grievances being filed, but the Board moved to vacate the resignation order, leading to the court's decision to hold the motion pending the Board's investigation completion.

SCR 20:1.15(a) mandates that lawyers hold clients' and third parties' property in trust, separate from their own, including funds related to representation or fiduciary duties. Such funds must be deposited into identifiable trust accounts, clearly labeled as "Client's Account" or "Trust Account." These accounts must be maintained in authorized financial institutions in Wisconsin, and only minimal lawyer funds for service charges are permitted. Client securities should be stored in a designated safe deposit box in a similar institution. Additionally, any out-of-state representation does not override the trust account rules of that jurisdiction.

SCR 20:8.4(c) identifies professional misconduct for lawyers engaging in dishonesty or misrepresentation. SCR 20:1.16(d) requires lawyers to protect clients' interests upon termination of representation, including notifying the client, allowing time for new counsel, surrendering client property, and refunding unearned fees, while retaining necessary documents as permitted by law. SCR 20:1.3 emphasizes the need for diligence and promptness in client representation, while SCR 20:1.4(a) obligates lawyers to keep clients informed about their matters. SCR 20:1.16(a)(3) prohibits representation or withdrawal from a client if the lawyer is discharged.

Former SCR 22.07(3) allowed administrators or committees to compel responses and document production from respondents in investigations, with failure to comply constituting misconduct. The administrator could also compel third parties to produce relevant documents under SCR 22.22.