Court: Wisconsin Supreme Court; September 16, 2015; Wisconsin; State Supreme Court
The report from Referee Attorney Michael F. Dubis recommends a 90-day suspension of Attorney Charles A. Boyle’s law license in Wisconsin, along with a requirement to pay costs totaling $15,453.40 as of February 4, 2014. As no appeal was filed, the review proceeded under Supreme Court Rule (SCR) 22.17(2). The reviewing body affirms the referee's factual findings unless clearly erroneous and conducts a de novo review of legal conclusions.
Attorney Boyle's failure to timely respond to an amended complaint led to a default declaration, confirming five counts of misconduct related to his representation of a widow in a Racine County civil case. The review opted not to address five additional counts linked to a case in the U.S. District Court for the Northern District of Illinois, dismissing those allegations. Considering Boyle's lack of prior disciplinary actions in Wisconsin and the reduced number of violations, a public reprimand was deemed sufficient to address his misconduct.
Additionally, due to an error by the Office of Lawyer Regulation (OLR) requiring an amended complaint, the cost assessment was reduced by 40% to $9,272.04. Attorney Boyle was admitted to practice in Illinois in 1966, served as an Assistant U.S. Attorney, and was admitted to the Wisconsin bar in 1985, having faced no prior discipline in Wisconsin, although his license was administratively suspended a few times. His license is currently active and in good standing. The disciplinary proceeding commenced on October 24, 2012, with a complaint alleging nine counts of misconduct, to which Boyle initially responded with a motion to dismiss, later filing an answer after the motion was denied.
Attorney Boyle did not attend a telephonic scheduling conference during which the Office of Lawyer Regulation (OLR) requested permission to file an amended complaint. The referee authorized the OLR to file this complaint by June 30, 2013, and required Attorney Boyle to respond within 20 days of service. Before the OLR could file the amended complaint, Attorney Boyle submitted a second motion to dismiss. During a subsequent conference, the referee suggested that Attorney Boyle withdraw this motion due to its premature nature, but he refused and indicated indifference to the referee's decision. Following the conference, the referee denied the second motion and reiterated the requirement for Attorney Boyle to answer the amended complaint.
The OLR filed the amended complaint on June 27, 2013, which maintained similar allegations to the original but specified violations of the Northern District Court's ethical rules instead of Wisconsin's, resulting in an increase from nine to ten counts of misconduct. The OLR claimed to have served the amended complaint to Attorney Boyle via email and first-class mail; however, he later contended that he did not receive it.
On July 29, 2013, the OLR filed a motion for default against Attorney Boyle. Shortly after this, he requested a copy of the amended complaint, but it took several weeks to be provided. The referee scheduled a 'prove-up' hearing for September 23, 2013, regarding the default motion. Despite not responding to the amended complaint, Attorney Boyle filed two motions in the interim: one for summary judgment and another to vacate the default finding and strike the hearing. In the latter motion, he claimed non-receipt of the amended complaint and served a document request on the OLR, demanding a response before the hearing.
On September 23, 2013, a hearing took place where extensive dialogue occurred between the referee and counsel regarding recent developments in the case. Counsel for the Office of Lawyer Regulation (OLR) acknowledged that Attorney Boyle had not received the amended complaint until shortly before the hearing but maintained that service was proper via email and first-class mail. The OLR's counsel expressed readiness to proceed with an evidentiary hearing despite the lack of a formal declaration of default.
The referee denied Attorney Boyle's motions, including a request for summary judgment, citing insufficient supporting affidavits and the premature filing of the motion before Boyle had answered the amended complaint. Despite recognizing Boyle's lack of grounds to avoid a declaration of default, the referee allowed the OLR to present witness testimony, leading to some confusion regarding the nature of the hearing and Boyle's level of participation.
At the hearing's conclusion, the referee indicated that Boyle was in default for not responding timely to the amended complaint but requested the OLR to submit proposed findings of fact and conclusions of law, which might need to be adjusted based on the hearing's testimony. Boyle was granted an opportunity to respond to these submissions and provide his own findings and recommendations.
Following the parties' post-hearing submissions, the referee issued a written order denying Boyle's motions, granting the OLR's default motion, and producing a report and recommendation. This report concluded that the OLR was entitled to a declaration of default, with all allegations in the amended complaint deemed admitted. The findings of fact detailed Boyle's representation of L.S., who faced challenges after her husband's death in a motor vehicle accident in 2008. Initially represented by another attorney, L.S. struggled to find new legal representation before Attorney Boyle began to represent her pro bono, following encouragement from his wife.
On August 5, 2011, Attorney Boyle inquired with the Board of Bar Examiners (BBE) about representing L.S. in a civil action in Wisconsin, while also receiving a letter from the Office of Lawyer Regulation (OLR) regarding the reinstatement of his suspended law license. Boyle engaged in multiple discussions with the BBE director and communicated with OLR representatives, who provided him with a form for a petition for admission pro hac vice. On August 8, 2011, Boyle attempted to file a 'Complaint' via fax to the Racine County Clerk’s office but only submitted a partial document before sending the complete 19-page document after hours; neither document was recorded officially. The following day, Boyle assured the clerk that no timelines were being violated. On August 12, he filed an amended complaint, which was officially recorded, but did not pay the filing fee until August 15. On September 6, Boyle submitted a letter to the OLR with a completed Application for Admission Pro Hac Vice to represent L.S. Meanwhile, defendants in the Racine County action filed motions to dismiss, citing Boyle's lack of a Wisconsin license and the absence of a Wisconsin attorney's signature, as well as a statute of limitations issue. On October 11, 2011, Boyle petitioned the court for the reinstatement of his Wisconsin law license.
On October 17, 2011, a hearing was held by Reserve Judge Dennis Costello to address the defendants' motions to dismiss, during which Attorney Boyle revealed that his Wisconsin law license was suspended. He claimed to have petitioned for pro hac vice admission to represent L.S., stating that the BBE director had indicated there would be no issue with his application. Boyle asserted he had completed the necessary CLE requirements for reinstatement but had not filed the petition in time for the hearing. He mentioned discussions with Judge Allan Torhorst, who expressed no objections to the pro hac vice petition, pending the trial judge's discretion.
Judge Costello rejected Boyle's request for pro hac vice status, emphasizing that Boyle had filed the complaint while his license was suspended, arguing that Boyle was attempting to legitimize unauthorized actions post-factum. Despite Boyle's insistence that the BBE and OLR directors had approved his application, Judge Costello maintained that Boyle had acted without proper authority. The court subsequently granted the defendants' motion to dismiss based on the lack of legal representation.
Following this, the law firm Weigel, Carlson, Blau and Clemens SC entered an appearance for L.S. and sought reconsideration of the dismissal order. Attorney Boyle also filed a personal motion for reconsideration regarding the denial of his pro hac vice petition, asserting that the BBE director had advised him that he could still represent L.S. despite his suspended license. Boyle’s affidavit claimed that the supreme court rules did not prohibit administratively suspended lawyers from seeking pro hac vice admission. A hearing on the reconsideration motion from the Weigel firm occurred on January 13, 2012, presided over by Judge Michael Nieskes.
Judge Nieskes inquired about Attorney Boyle's reinstatement status at the hearing's outset, to which Boyle indicated his petition was still pending. Although allowed to sit at the counsel table, Boyle was informed he was not a counsel of record. Following the approval of the Weigel firm's reconsideration motion, Judge Nieskes permitted Boyle to address the court but clarified that he lacked the authority to file motions or schedule hearings due to his unlicensed status. Later, a defendant's counsel submitted a draft order reflecting the court's ruling. Boyle then faxed a proposed amendment to this order, detailing his motion for reconsideration regarding his pro hac vice petition, including its scheduling history and the circuit court's prior denial without a hearing. However, Judge Nieskes declined to incorporate Boyle's proposed changes, stating that no hearing would occur on his reconsideration motion until his license was reinstated. On April 24, 2012, the court granted Boyle's reinstatement petition. When the Office of Lawyer Regulation (OLR) sought his response regarding his conduct in representing L.S., Boyle denied any wrongdoing and falsely claimed that his actions were authorized by BBE and OLR representatives, misrepresenting the timeline of events related to his pro hac vice petition and reinstatement.
The referee determined that Attorney Boyle committed five counts of misconduct. Firstly, he engaged in the practice of law while his license was administratively suspended by drafting and filing legal documents and appearing in court, violating multiple Supreme Court Rules (SCRs). Secondly, he made false statements to the Racine County circuit court regarding his representation timeline and endorsements related to his pro hac vice application, breaching SCR 20:3.3(a)(1). Thirdly, he made further misrepresentations, including misleading the Racine County Clerk and the OLR, which violated SCR 20:8.4(c). Fourthly, Boyle displayed disrespect towards the court by arguing against a judge's ruling, violating the Attorney's Oath and SCR 20:8.4(g). Lastly, he provided false information during the OLR investigation, contravening SCRs 22.03(6) and 20:8.4(h). The referee affirmed a default judgment against Boyle for not responding to the amended complaint, as it was sent to addresses he had provided, and accepted the allegations as admitted. The findings were deemed sufficient to support the legal conclusions of professional misconduct related to the Racine County civil action and the OLR investigation.
The appropriate level of discipline for Attorney Boyle concerning five counts of misconduct from the Racine County action was considered. The Office of Lawyer Regulation (OLR) recommended a 60-day suspension for all ten counts, citing a pattern of false statements, Attorney Boyle's experience, multiple offenses, and his refusal to acknowledge wrongdoing. However, the referee suggested a 90-day suspension due to Attorney Boyle's inappropriate conduct during the disciplinary proceedings, including missed telephonic conferences and a lack of remorse expressed during the hearing.
The purpose of professional discipline is to emphasize the seriousness of misconduct, deter similar actions by others, and protect the public and legal system. In this case, it was determined that a public reprimand, rather than a suspension, suffices to achieve these goals. The decision focused only on the five counts from the Racine County matter, rather than the ten considered by the OLR and referee. While accepting the referee’s findings, including that Attorney Boyle practiced law without authorization and made false statements, it was acknowledged that there was no evidence of dishonest intent.
Attorney Boyle acted pro bono to assist a widow facing significant challenges, which provided context for his actions. Although his misconduct is not excused, his intent to help a disadvantaged individual was seen as a mitigating factor, differentiating his behavior from that of a lawyer acting for personal gain. Thus, a public reprimand was deemed appropriate for his overzealous conduct.
Attorney Boyle made several attempts to contact relevant agencies to seek proper representation for L.S. and to file her case before the statute of limitations expired, despite being administratively suspended. Although he ultimately filed a complaint without prior authorization, his efforts to consult with regulatory agencies indicate he did not entirely disregard legal and ethical standards. He later exaggerated the guidance received from these agencies, claiming approval for his actions.
The Office of Lawyer Regulation (OLR) noted that the director of the Board of Bar Examiners (BBE) did not explicitly approve Boyle's course of action but may have unintentionally suggested it. This context complicates the justification for suspension, as Boyle believed he was following a proposed course of action, despite misleading the court about the nature of that guidance.
During a hearing, Boyle expressed a willingness to repeat his actions to protect his client's legal rights, which was misinterpreted as a lack of remorse. His statement followed an acknowledgment of responsibility for his actions, indicating he was prepared to face the consequences.
Notably, this was Boyle's first disciplinary action in nearly thirty years of practice in Wisconsin, suggesting no prior misconduct that would warrant heightened scrutiny. While the OLR argued his experience should have informed him better, his long history of discipline-free practice indicates he has not previously posed a risk to the public.
Ultimately, while acknowledging his violations of ethical rules, the conclusion is that a public reprimand is appropriate to underscore the seriousness of his misconduct and to deter future violations, rather than a more severe sanction.
Costs for the proceeding against Attorney Boyle total $15,453.40, with the Office of Lawyer Regulation (OLR) recommending that he bear the full amount due to his misconduct. However, it was determined that imposing the entire cost on Attorney Boyle is inappropriate. The OLR's initial complaint was flawed, requiring an amended complaint, the drafting of which should not be attributed to Boyle. Additionally, the amended complaint led to further disputes and a motion for a declaration of default. Since five counts related to the Northern District Court matter are not being adjudicated, a reduction in costs is warranted.
The referee called for an evidentiary 'prove-up' hearing, which was unnecessary since a motion for default typically does not require such hearings to prove liability, as the allegations are accepted as true. The hearing resulted in substantial preparation and extended proceedings, exceeding the necessary scope for establishing liability.
These factors—specifically the need for an amended complaint and the unnecessary hearing—constitute relevant circumstances justifying a reduction in costs. Consequently, rather than determining specific cost exclusions, a 40% reduction is applied, resulting in a total cost of $9,272.04 owed by Attorney Boyle. He is publicly reprimanded for his misconduct and is ordered to pay the reduced costs within 60 days.
The director of the Office of Lawyer Regulation (OLR) is tasked with notifying the court if there is noncompliance with the order's conditions. According to SCR 22.17(2), if no timely appeal is filed, the supreme court will review the referee's report and can adopt, reject, or modify the findings, or remand for further findings. The court may also require briefs from the parties involved. SCR 20:8.5(a) states that lawyers licensed in the state are subject to the court's disciplinary authority, regardless of the location of their conduct. SCR 20:8.5(b) outlines the rules for determining applicable ethical standards based on the jurisdiction of a tribunal, specifying that the rules of the tribunal's jurisdiction apply unless otherwise directed. The Northern District Court has established its own rules of professional conduct, which are relevant to the amended complaint alleging ethical violations against Attorney Boyle.
The preparation of the amended complaint was prolonged as it required new probable cause findings from the Preliminary Review Committee (PRC) due to the diverse ethical rules implicated. Evidence from a conversation between a translator, L.S., and Attorney Boyle led to allegations that Boyle had begun providing legal services to L.S. prior to that conversation. The referee accepted this allegation as a fact due to Boyle's default. SCR 10.03(6) states that nonpayment of dues for 120 days may result in suspension of membership, prohibiting law practice during that suspension. Additionally, SCR 31.10(1) specifies that failure to comply with attendance or reporting requirements may lead to automatic suspension, with the board responsible for notifying relevant judicial and legal entities of any suspensions. A suspended lawyer cannot practice law in Wisconsin.
An attorney with a suspended or revoked license is prohibited from practicing law or engaging in law-related activities typically performed by law students, clerks, or paralegals, except for work for a commercial employer not involved in legal practice (SCR 22.26(2)). Professional misconduct is defined under several rules: violating statutes or court orders (SCR 20:8.4(1)), making false statements to a tribunal (SCR 20:3.3(a)(1)), engaging in dishonesty or misrepresentation (SCR 20:8.4(c)), failing to uphold the attorney's oath (SCR 40.15), and not cooperating during an investigation (SCR 20:8.4(h) and SCR 22.03(6)). The Office of Lawyer Regulation (OLR) is not pursuing restitution, as the misconduct did not involve mishandling funds.
