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In re Disciplinary Proceedings Against Stewart

Supreme Court of Wisconsin

April 26, 2017

In the Matter of Disciplinary Proceedings Against Alan R. Stewart, Attorney at Law:
v.
Alan R. Stewart, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          DISCIPLINARY PROCEEDINGS AGAINST STEWART

          PER CURIAM.

         ¶l We review the report and recommendation of Referee William Eich approving a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Alan R. Stewart. Attorney Stewart stipulated to the facts underlying the 11 counts of misconduct alleged in the OLR's complaint and joined the OLR in jointly recommending a nine-month suspension of Attorney Stewart's license to practice law in Wisconsin. The referee agreed that a nine-month suspension was appropriate.

         ¶2 Upon careful review of this matter, we uphold the referee's findings of fact and conclusions of law and agree that a nine-month suspension is an appropriate sanction for Attorney Stewart's misconduct. We also find it appropriate to impose the full costs of this proceeding, which are $645.46 as of February 13, 2017, on Attorney Stewart. We further agree that Attorney Stewart should reimburse the Wisconsin Lawyers' Fund for Client Protection (the Fund) in the amount of $4, 400 for funds it paid to one client, and he should be required to pay restitution to F.W. in the amount of $8, 000.

         ¶3 Attorney Stewart was admitted to practice law in Wisconsin in 1992. His current address is in Appleton, Wisconsin. His law license has been suspended since February 2015 for failure to cooperate in two OLR investigations. His Wisconsin license is also suspended for failure to comply with continuing legal education requirements, failure to pay State Bar dues, and failure to file required trust account certifications. On March 19, 2001, Attorney Stewart was initially registered as a patent attorney with the United States Patent and Trademark Office (USPTO). Attorney Stewart is not currently registered as a patent attorney with the USPTO. As of July 16, 2015, he is registered only as a patent agent with the USPTO.

         ¶4 On February 24, 2016, the OLR filed a complaint against Attorney Stewart alleging 11 counts of misconduct. The first six counts arose out of his representation of A.H. and C.H. (the Hs) . The Hs contacted Attorney Stewart in November 2013 to discuss the possibility of hiring him to represent them in connection with patenting an invention. In early January of 2014, the Hs hired Attorney Stewart to draft and file a non-provisional patent application. They paid Attorney Stewart a $4, 400 advanced fee to represent them in the matter.

         ¶5 Attorney Stewart never drafted the non-provisional patent application, and he failed to perform any meaningful work in the matter. Attorney Stewart failed to respond to several telephone calls and emails from the Hs requesting information, and he did not keep the Hs reasonably informed about the status of their matter. Attorney Stewart did not refund to the Hs the $4, 400 advanced fee in spite of their multiple requests for a refund. Attorney Stewart has not returned the Hs' product sample and papers even after they requested that he do so. The Hs filed an application for reimbursement in the amount of $4, 400 with the Fund, and in December 2014, the Fund approved payment to the Hs in that amount.

         ¶6 The Hs filed a grievance against Attorney Stewart in May 2014. The OLR provided Attorney Stewart with written notice of its formal investigation of the grievance and of his duty to cooperate with the investigation of the grievance in September 2014. Attorney Stewart was informed that his written response to the grievance was to be submitted on or before October 6, 2014. Attorney Stewart did not respond. He also failed to respond to a follow-up letter sent on October 13, 2014 that was sent by both certified and first class mail, nor did he respond to a November 19, 2014 letter that was personally served upon him. In December 2014, the OLR filed with this court a notice of motion and motion requesting an order to show cause as to why Attorney Stewart's license should not be suspended for failing to cooperate in two OLR investigations. This court issued an order requiring Attorney Stewart to show cause in writing why the OLR's motion should not be granted and his license to practice law in Wisconsin should not be temporarily suspended. Attorney Stewart failed to respond to this court's order. On February 10, 2015, this court granted the OLR's motion and temporarily suspended Attorney Stewart's Wisconsin law license. His license remains temporarily suspended.

         ¶7 The OLR's complaint alleged the following counts of misconduct with respect to his representation of the Hs:

Count One: By failing to complete and file the non-provisional patent application, and by otherwise failing to act in furtherance of the Hs' interests, Attorney Stewart violated SCR 20:1.3.[1]
Count Two: By failing to keep the Hs reasonably informed regarding the status of the matter, and by failing to respond to the Hs' several telephone calls and emails requesting information, Attorney Stewart violated SCR 20:1.4 (a) (3) and (4).[2]
Count Three: Having received a $4, 400 advanced fee from the Hs to complete and file the non-provisional patent application, and thereafter by failing to do so, Attorney Stewart violated SCR 20:1.5(a).[3]
Count Four: Having received an advanced fee payment in contemplation of completing and filing the non-provisional patent application, and thereafter failing to do so, rendering the advanced fee unearned, by failing to refund the advanced fee and return the product sample and papers to the Hs, Attorney Stewart violated SCR 20:1.16(d).[4]
Count Five: By misrepresenting to the Hs that he had completed the non-provisional patent application and sent it to them via email for their review, Attorney ...

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