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In re Disciplinary Proceedings Against Willihnganz

Supreme Court of Wisconsin

January 31, 2017

In the Matter of Disciplinary Proceedings Against Ty Christopher Willihnganz, Attorney at Law:
v.
Ty Christopher Willihnganz, Respondent. Office of Lawyer Regulation, Complainant,

         Attorney disciplinary proceeding. Attorney publicly reprimanded.

         ¶1 PER CURIAM.

         We review the report of Referee Robert E. Kinney who concluded that Attorney Ty Christopher Willihnganz's professional misconduct warrants a public reprimand and recommends that we require him to pay the full costs of this disciplinary proceeding.

         ¶2 No appeal has been filed from the referee's report and recommendation so we review the matter pursuant to Supreme Court Rule (SCR) 22.17(2) -[1] After considering the referee's report, the parties' stipulation, and the record in this matter, we agree that Attorney Willihnganz engaged in some, but not all, of the acts of professional misconduct alleged in the Office of Lawyer Regulation's (OLR) complaint. We agree that a public reprimand is appropriate and we require Attorney Willihnganz to pay the full costs of this proceeding, which were $5, 028.97 as of October 6, 2016.

         ¶3 Attorney Willihnganz was admitted to practice law in Wisconsin on April 11, 1996. In 2001, his license was administratively suspended for failure to comply with continuing legal education (CLE) requirements. In 2004, he received a public reprimand for failing to abide by a client's decision concerning the objectives of representation and failing to consult with the client in violation of SCR 20:1.2 (a), [2] and for failure to cooperate with the OLR's investigation into the matter. In re Disciplinary Proceedings Against Willihnganz, 2004 WI 31, 270 Wis.2d 229, 676 N.W.2d 473. His law license was reinstated in June 2007. In 2008, this court imposed a private reprimand on Attorney Willihnganz for practicing law during the administrative suspension for non-compliance with CLE requirements. In re Disciplinary Proceedings Against Willihnganz, No. 2008AP180, unpublished order ( S.Ct. July 28, 2008).

         ¶4 This proceeding arises from Attorney Willihnganz's professional involvement with a Green Bay businessman and family friend, R.V.

         ¶5 In approximately 2010, Attorney Willihnganz, who had taken a break from the practice of law to pursue other career interests, returned to Green Bay and the practice of law. He negotiated an agreement with R.V., whereby R.V. agreed to provide Attorney Willihnganz with office space for his legal practice and to pay his State Bar of Wisconsin bar dues and CLE expenses in exchange for Attorney Willihnganz providing certain legal services to R.V. and his new energy startup, Green Box.

         ¶6 The working arrangement proved stressful and Attorney Willihnganz described it as a "pretty desperate time" when, in March of 2013, an individual who had invested $600, 000 in Green Box filed a lawsuit in Brown County circuit court against R.V. and Green Box, alleging that his investment was obtained by fraudulent misrepresentation. Attorney Willihnganz's brief representation of R.V. and Green Box during his administrative license suspension gave rise to this disciplinary proceeding.

         ¶7 On December 30, 2015, the OLR filed a formal disciplinary complaint against Attorney Willihnganz seeking a 60-day suspension of his license to practice law. First, it alleged that Attorney Willihnganz violated SCR 20:1.16(d)[3] by failing to take steps to protect the interests of R.V. and Green Box upon the termination of his representation of them. Second, it alleged that Attorney Willihnganz violated SCR 22.26(1) (c) [4] by failing to promptly provide written notification to the court and opposing counsel of a June 4, 2013, law license suspension. Third, it alleged that Attorney Willihnganz violated SCR 31.10(1)[5] and 22.26(2)[6] by practicing law after his law license was suspended. Fourth and finally, it alleged that Attorney Willihnganz violated SCR 20:8.4(c)[7] by giving false testimony in a deposition.

         ¶8 The Honorable Robert E. Kinney was appointed as referee. The OLR filed a motion for summary judgment. At a July 2016 telephonic hearing on the OLR's motion, Attorney Willihnganz admitted to count one of the complaint. The parties indicated that a comprehensive stipulation of facts would follow.

         ¶9 Referee Kinney accepted Attorney Willihnganz's admission to count one of the complaint, found that the complaint alleged sufficient facts to support the misconduct charge, and concluded that Attorney Willihnganz committed the misconduct alleged in count one. The parties reserved the right to argue whether the stipulated facts substantiated the remaining allegations of misconduct and the appropriate sanction.

         ¶10 The referee conducted a hearing on August 15, 2016. At the hearing, the parties submitted a comprehensive stipulation of facts, whereby Attorney Willihnganz reiterated his admission to the misconduct alleged in count one of the complaint and agreed that the referee could use the stipulated facts to determine whether Attorney Willihnganz committed the misconduct alleged in counts two through four of the complaint. Attorney Willihnganz testified at the evidentiary hearing.

         ¶11 The parties' stipulation and the testimony from the evidentiary hearing focused on events between March 2013 and January 2014.

         ¶12 In March 2013, M.A. filed a complaint in Brown County circuit court against R.V. and Green Box alleging that R.V. used misrepresentations and false promises to induce M.A. to invest $600, 000 in Green Box. Attorney Willihnganz filed an Answer on behalf of the defendants. Discovery commenced.

         ¶13 On June 4, 2013, Attorney Willihnganz's law license was administratively suspended for failure to comply with 2011-2012 CLE requirements. Attorney Willihnganz told R.V. about the suspension and urged him to retain new counsel, but did not promptly provide formal written notification to the court or to opposing counsel.

         ¶14 In a June 5, 2013, letter to opposing counsel, Attorney Willihnganz sent some undated discovery answers, stating: "Attached are the answers to Plaintiffs First Set of Interrogatories. I will provide you with a signed version as soon as [R.V.] returns to town."

         ¶15 In a June 27, 2013 letter, opposing counsel responded, informing Attorney Willihnganz that the defendants' discovery responses were deficient and reminding him that defendants had failed to respond to a document request. A July 12, 2013, letter from opposing counsel reiterated these issues.

         ¶16 Attorney Willihnganz did not inform R.V. of this correspondence. A motion to compel ensued; Attorney Willihnganz received notice of a September 20, 2013 scheduling conference.

         ¶17 On August 13, 2013, Attorney Willihnganz filed a motion to withdraw as counsel. A hearing on the withdrawal motion was scheduled for September 30, 2013.

         ¶18 On September 20, 2013, Attorney Willihnganz appeared on behalf of R.V. and Green Box for the telephonic scheduling conference on the scheduling conference. During the conference, Attorney Willihnganz stated that he was not intending to withdraw his motion, and the scheduling conference proceeded. Attorney Willihnganz did not inform the court, the clerk, or opposing counsel that his license was administratively suspended.

         ¶19 On September 30, 2013, opposing counsel appeared at the scheduled hearing on Attorney Willihnganz's motion to withdraw as counsel. Attorney Willihnganz did not appear.

         ¶20 On October 4, 2013, the circuit court granted the plaintiff's motion to compel and ordered R.V. and Green Box to produce the requested documents and to serve responses to the Interrogatories on or before November 1, 2013.

         ¶21 On or about November 1, 2013, another administrative suspension was imposed on Attorney Willihnganz's law license for failure to pay State Bar of Wisconsin dues and failure to certify compliance with trust account recordkeeping requirements.

         ¶22 On November 5, 2013, with discovery still not forthcoming, plaintiff's counsel moved to strike the defendants' answer and sought a default judgment.

         ¶23 On January 2, 2014, a new lawyer filed a notice of appearance on behalf of Green Box. On January 21, 2014, another attorney filed a notice of appearance on behalf of R.V.

         ¶24 In a January 22, 2014 deposition in the Green Box litigation, Attorney Willihnganz was asked the following questions and gave the following answers:

Q. Did you tell him ([R.V.]) why it was you participated in the scheduling conference when you didn't have a license to practice law?
A. Yes, I just said, you know, I felt uncomfortable about it; but since I took the call, I just went through with it.
Q. So did you tell him even though you did that you can't represent him, he needs to get some other lawyer?
A. I don't remember if I specifically said that. Again, I thought it was understood that since I did not have a ...

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