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In re Disciplinary Proceedings Against Clark

Supreme Court of Wisconsin

May 17, 2016

In the Matter of Disciplinary Proceedings Against Raymond M. Clark, Attorney at Law: Office of Lawyer Regulation, Complainant,
v.
Raymond M. Clark, Respondent

          Attorney's license suspended.

          OPINION

         ATTORNEY disciplinary proceeding. suspended .

          PER CURIAM.

          [¶1] We review the report and recommendation of Referee Hannah C. Dugan that the license of Raymond M. Clark be suspended for 120 days for professional misconduct. The referee also recommends that Attorney Clark pay the full costs of the proceeding, which are $16,192.21 as of March 29, 2016, and that he be required to take six continuing legal education credits in trust account management, to be approved by the Office of Lawyer Regulation (OLR).

          [¶2] After careful review of this matter, we adopt the referee's findings of fact and conclusions of law. We agree that a four-month suspension of Attorney Clark's license is an appropriate sanction for his misconduct. We also agree that the full costs of the proceeding should be assessed against Attorney Clark, and we further agree that Attorney Clark should be required to obtain six continuing legal education credits in trust account management.

          [¶3] Attorney Clark was admitted to practice law in Wisconsin in 1959. The most recent address furnished by Attorney Clark to the State Bar of Wisconsin is in Menomonee Falls, Wisconsin. Attorney Clark has no prior disciplinary history.

          [¶4] On October 9, 2014, the OLR filed a complaint alleging that Attorney Clark had engaged in ten counts of misconduct. Attorney Clark filed an answer to the complaint on November 17, 2014. The referee was appointed on December 17, 2014.

          [¶5] An evidentiary hearing was held before the referee on March 5, 2015. At the hearing, the parties presented a signed stipulation, dated March 2, 2015. As part of the stipulation, Attorney Clark admitted five counts of the complaint and entered no contest pleas to four counts. During the course of the evidentiary hearing, the OLR made a motion to dismiss count ten of the complaint. In the stipulation, Attorney Clark agreed that the referee may use the allegations of the complaint as an adequate factual basis in the record for a determination of misconduct as set forth in counts one through nine of the complaint.

          [¶6] Counts one through five of the OLR's complaint arose out of Attorney Clark's representation of T.C. in Milwaukee County divorce proceedings. The complaint alleged that in March of 2008, the Milwaukee County circuit court entered findings of fact, conclusions of law, and a final judgment in the divorce, which incorporated by reference all of the terms of a Marital Settlement Agreement (MSA) signed by T.C. and her husband, J.C. The MSA listed the marital debts and stated that the parties were equally liable for their payment. The MSA provided that T.C.'s share of a retirement account would be forwarded to Attorney Clark and that Attorney Clark " shall withhold said monies in order to satisfy petitioner's [T.C's] financial responsibilities per the Marital Settlement Agreement. After petitioner's financial responsibilities have been satisfied in full, petitioner shall receive the remaining balance."

          [¶7] In August 2008, Attorney Clark received T.C.'s share of the retirement account, totaling $9,341.84. He deposited that amount into his IOLTA trust account. Between August 13, 2008 and September 26, 2008, Attorney Clark disbursed various checks from his trust account to himself, including $1,710 of the funds on deposit for T.C. On September 26, 2008, Attorney Clark made a cash withdrawal in the amount of $1,000 from the funds in his trust account attributable to his representation of T.C.

          [¶8] Although Attorney Clark told T.C. that he was working on negotiating several of the debts, as of January 26, 2009, he had not paid any of the creditors T.C. was obligated to pay pursuant to the MSA.

          [¶9] Between January 30, 2009 and March 5, 2009, Attorney Clark disbursed another $1,850 of the retirement funds to himself. He also disbursed $300 of the funds to his client. He did not discuss the disbursements with opposing counsel, seek a modification of the MSA, or seek the court's authorization for the disbursements.

          [¶10] In May 2009, J.C.'s counsel filed a motion for an order to show cause due to T.C.'s failure to timely pay her portion of the marital debts. Attorney Clark filed a cross motion asserting that J.C. had failed to comply with the law concerning financial disclosures, disputing that J.C. had paid his share of the debts, and asserting that J.C. had interfered with IRS refunds. As of June 1, 2009, at least five debts to be paid by T.C., totaling $833.15, remained unpaid, but by this time Attorney Clark was holding insufficient funds in trust for T.C. to pay those debts.

          [¶11] At a June 19, 2009 hearing, a Milwaukee County court commissioner held that she had no authority other than to enforce the MSA. The commissioner ordered T.C. to pay her share of the marital debt and ordered that " any monies in trust [] be used for outstanding bills forthwith." At the hearing, Attorney Clark failed to advise the court that he had already disbursed $4,360 of the retirement funds to himself and failed to advise that he had made other disbursements and that only $59.73 of the retirement funds remained in his trust account.

          [¶12] On July 14, 2009, Attorney Clark disbursed $600 to himself, exhausting the remaining retirement funds being held in trust for T.C. and disbursing funds that belonged to T.C. or others. On August 13, 2009, Attorney Clark disbursed $50 from his trust account to T.C. By that date, Attorney Clark was no longer holding any funds in his trust account attributable to T.C. In February 2010, Attorney Clark deposited $1,846.05 in his trust account and identified the deposit as " return of fees" related to his representation of T.C.

          [¶13] The OLR's complaint alleged the following counts of misconduct with respect to Attorney ...


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