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In re Disciplinary Proceedings Against Marx

Supreme Court of Wisconsin

July 22, 2016

In the Matter of Disciplinary Proceedings Against Matthew H. Marx, Attorney at Law:
v.
Matthew H. Marx, Respondent. Office of Lawyer Regulation, Complainant,

         DISCIPLINARY PROCEEDINGS AGAINST MARX OPINION

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          PER CURIAM.

         ¶1 We review a stipulation, as revised, filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney Matthew H. Marx. Attorney Marx stipulates to the misconduct alleged by the OLR, stipulates, further, that he should be ordered to pay restitution to two clients and that his license to practice law in Wisconsin should be suspended for nine months.

         ¶2 We adopt the stipulated facts and conclusions of law. We agree that Attorney Marx's professional misconduct warrants the suspension of his Wisconsin law license for a period of nine months. We further agree that restitution is appropriate. Because this matter was resolved by stipulation without appointment of a referee, we will not impose the costs of this proceeding upon Attorney Marx.

         ¶3 Attorney Marx was admitted to the practice of law in Wisconsin in 1996. Although he has not previously been disciplined by this court, Attorney Marx's license is administratively suspended for failing to pay State Bar dues and for failing to maintain his CLE requirements. In addition, his law license has been temporarily suspended since March 18, 2014 for noncooperation with the OLR's investigation into this matter.

         ¶4 On January 13, 2016, OLR filed a disciplinary complaint against Attorney Marx alleging 22 counts of misconduct. The first seven counts of the OLR's complaint alleged, and the parties have stipulated, that Attorney Marx violated various provisions of SCR 20:1.15, the trust account rule.[1] He violated SCR 20:1.15(b)(1)[2] and/or SCR 20:1.15(b)(3)3 by paying from his trust account $2, 102.03 in personal and business expenses; $215 in filing fees for a client who had no funds in trust; and at least $301.33 in credit card surcharges. He violated SCR 20:1.15(b)(3)[3] when he deposited and retained $3, 800 in personal funds in his trust account. He violated SCR 20:1.15(f)(1)a., b., and g.[4] by failing to maintain a transaction register and client ledgers, and violated SCR 20:1.15(e)(7)[5] by failing to produce a transaction register, client ledgers, and a monthly reconciliation. Attorney Marx also violated SCR 20:1.15(e)(4)e.[6] by authorizing credit card and other electronic payments be deposited into his trust account, and violated SCR 20:1.15(e)(4)c.[7] by making internet deposits and disbursements from his trust account.

         ¶5 Counts 8 and 9 of the complaint allege and the parties have stipulated that Attorney Marx committed misconduct in his representation of D.A. in her divorce action. Attorney Marx failed to hold D.A.'s funds in trust in violation of SCR 20:1.15(b) and then failed to cooperate with the investigation of this matter, in violation of SCR 22.03(2)[8] and SCR 22.03(6), [9]enforced via SCR 20:8.4(h).[10]

         ¶6 Counts 10-16 of the complaint allege, and the parties have stipulated, that Attorney Marx also committed misconduct in his representation of C.W. in a divorce. Attorney Marx violated SCR 20:1.15(e)(4)h.[11] by allowing the deposit of C.W.'s credit card payment into his client trust account. He violated SCR 20:1.15(g)(1)[12] by failing to provide C.W., in writing, at least five business days prior to withdrawing his funds for payment of fees, (a) an itemized bill or other accounting showing services rendered, (b) notice of the amount owed and anticipated date of withdrawal, and (c) a statement of the balance of his funds in the trust account following the withdrawal. He violated SCR 20:1.4(a)(4)[13] by failing to respond to C.W.'s telephone calls and emails requesting information and violated SCR 22.26(1)(a), [14]enforced via SCR 20:8.4(f)[15] by failing to notify C.W. by certified mail of the suspension of his license to practice law and his consequent inability to represent him further. Additionally, he violated SCR 20:1.16(d)[16] by failing to refund unearned fees to C.W. upon termination of the representation and violated SCR 20:8.4(c)[17] by making misrepresentations to the OLR. He also violated SCR 22.03(2) and SCR 22.03(6), enforced via SCR 20:8.4(h), by failing to respond to OLR's letters regarding C.W. matter.

         ¶7 Counts 17-22 of the complaint allege, and the parties have stipulated, that Attorney Marx committed misconduct by violating the terms of his temporary license suspension. Specifically, he failed to report his license suspension to the U.S. District Court for the Eastern District of Wisconsin, thereby violating SCR 20:3.4(c)[18] and SCR 22.26(1)(c), [19] enforced via SCR 20:8.4(f).

         ¶8 In addition, by failing to notify his client, J.L., of his suspension and her need to hire successor counsel, Attorney Marx violated SCR 22.26(1)(a) and (b), [20] enforced via SCR 20:8.4(f), and, by continuing to represent J.L. and filing numerous documents in support of the U.S. District Court case, Attorney Marx violated SCR 22.26(2), [21] enforced via SCR 20:8.4(f).

         ¶9 In addition, by misrepresenting to OLR that he had notified all his active clients of his March 18, 2014 suspension, when he continued to represent J.L., Attorney Marx violated SCR 20:8.4(c).

         ¶10 Finally, in failing to respond to OLR's letters sent January 23, 2015 and February 18, 2015, requesting a response to OLR's inquiry, Attorney Marx violated SCR 22.03(2) and (6), enforced via SCR 20:8.4(h).

         ¶11 In late February 2016, the OLR and Attorney Marx executed a stipulation addressing the complaint. In addition to stipulating to the facts as set forth above, the parties stipulated to discipline in the form of a nine-month suspension of Attorney Marx's Wisconsin law license. The OLR filed a memorandum in support of the stipulation. The memorandum discusses attorney disciplinary cases that resulted in comparable suspensions for professional misconduct. The OLR deems analogous the matter of Disciplinary Proceedings Against Maynard, 2014 WI 13, 352 Wis.2d 629, 845 N.W.2d 648.

         ¶12 Attorney Maynard's law license was suspended for one year for misconduct consisting of failing to notify his clients and the courts that his license was suspended, continuing to practice law while suspended, engaging in dishonesty, misrepresenting his license status to the court, making false statements in his affidavit of compliance, continuing to use his letterhead and making false communications that he was permitted to practice in Wisconsin, and providing false information to OLR during its investigation. See also Disciplinary Proceedings Against Wood, 2013 WI 11, Id., 345 Wis.2d 279, 825 N.W.2d 473; Disciplinary Proceedings Against Scanlan, 2006 WI 38, 290 Wis.2d 30, 712 N.W.2d 877. The OLR advises the court that Attorney Marx's misconduct is much like Attorney Maynard's in that Attorney Marx failed to comply with SCR 22.26, made misrepresentations regarding his license status, and provided false information to OLR.

         ¶13 This court reviewed the stipulation. Noting that the stipulation did not provide for restitution, the court issued an order directing the parties to consider specific modifications to the stipulation to address whether the court should order Attorney Marx to pay restitution to two clients, D.A. and C.W.

         ¶14 On April 28, 2016, the parties filed a revised stipulation. The revised stipulation reiterated previous terms and also stipulated that the court should order Attorney Marx to pay restitution to D.A. in the amount of $994.50, reflecting the balance that remained in his trust account attributable to D.A. as of February 25, 2013. The parties further agreed that the court should order Attorney Marx to pay restitution to C.W. in the amount of $1, 568, the amount that should be returned to C.W. after Attorney Marx's payment of the $198 filing fee and $500 worth of work that Attorney Marx performed on C.W.'s case.

         ¶15 The stipulation, as revised, provides that it is not the result of a plea bargain. Attorney Marx verifies that he fully understands the misconduct allegations, the ramifications if this court should impose the stipulated level of discipline, his right to contest the matter, and his right to consult with counsel. He further verifies that his entry into the stipulation was made knowingly and voluntarily, and that it represents his admission of all misconduct and his assent to the level and type of discipline sought by the OLR.

         ¶16 We adopt the stipulation, as revised, and the stipulated facts and conclusions of law, and impose the stipulated discipline. We agree that the seriousness of Attorney Marx's misconduct warrants the suspension of his Wisconsin law license for nine months and payment of restitution to D.A. and C.W. We agree that Attorney Marx's mismanagement of his trust account evidences a careless disregard for the basic requirements of segregating trust funds from personal funds and record keeping and that his misconduct was exacerbated by his apparent indifference to making restitution. In light of the stipulation, the OLR does not seek costs, so we do not impose costs.

         ¶17 IT IS ORDERED that the license of Matthew H. Marx to practice law in Wisconsin is suspended for a period of nine months, effective the date of this order.

         ¶18 IT IS FURTHER ORDERED that Matthew H. Marx shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

         ¶19 IT IS FURTHER ORDERED that compliance with all conditions of this order is required for reinstatement. See SCR 22.28(2).

         ¶20 IT IS FURTHER ORDERED that the March 18, 2014 temporary suspension of Matthew H. Marx's license to practice law in Wisconsin, due to his wilful failure to cooperate with the ...


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