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In re Disciplinary Proceedings Against Schwitzer

Supreme Court of Wisconsin

June 1, 2017

In the Matter of Disciplinary Proceedings Against Matthew R. Schwitzer, Attorney at Law:Office of Lawyer Regulation, Complainant,
Matthew R. Schwitzer, Respondent.

         ATTORNEY disciplinary proceeding. Attorney's license suspended

          PER CURIAM.

         ¶l We review the report and recommendation of Referee Jonathan V. Goodman that the license of Attorney Matthew R. Schwitzer be suspended for six months for professional misconduct and that Attorney Schwitzer pay the full costs of this proceeding, which are $1, 661.68 as of May 25, 2017.

         ¶2 After careful review of the matter, we adopt the referee's findings of fact and conclusions of law. We agree with the referee that a six-month suspension of Attorney Schwitzer's law license is an appropriate sanction for his professional misconduct. We further agree that the full costs of the proceeding should be assessed against Attorney Schwitzer.

         ¶3 Attorney Schwitzer was admitted to practice law in Wisconsin in 2007. He practiced in Green Bay. His Wisconsin law license was suspended in 2013 for failure to pay State Bar dues and failure to file required trust account certifications. His Wisconsin law license was also suspended in 2014 for failure to comply with continuing legal education reporting requirements. On September 25, 2014, Attorney Schwitzer's law license was additionally suspended for willful failure to cooperate with an Office of Lawyer Regulation (OLR) investigation concerning his conduct. His law license remains suspended.

         ¶4 The OLR filed a complaint against Attorney Schwitzer on April 6, 2015. On July 13, 2015 the OLR filed an amended complaint alleging five counts of misconduct. The complaint alleged that on February 4, 2014, Attorney Schwitzer was convicted in Brown County of unlawful phone use - threatens harm, in violation of Wis.Stat. § 947.012(1) (a), a Class B misdemeanor; Possession of THC, in violation of Wis.Stat. § 961.41(3g) (e), an unclassified misdemeanor; and Possession of Cocaine/Coca, in violation of Wis.Stat. § 961.41(3g) (c), an unclassified misdemeanor. Other charges relating to possession of drug paraphernalia, narcotics, and illegally obtained prescription drugs were dismissed but read in. The Brown County circuit court withheld sentence and placed Attorney Schwitzer on two years' probation, conditioned on thirty days in jail, to run concurrently on each of the three counts. Attorney Schwitzer was also ordered to comply with his healthcare provider's recommendations, continue psychological and medical treatment, take all prescription medications, surrender a firearm, and have no contact with anyone who uses, sells, or possesses illegal drugs.

         ¶5 On October 20, 2014, Attorney Schwitzer fell asleep or lost consciousness while driving his car, drifted out of his lane of travel, and sideswiped another driver's car. The police officer who interacted with Attorney Schwitzer at the scene observed that Attorney Schwitzer had an unsteady balance, was shaking and sweating, his pupils were dilated, and he was having a hard time forming sentences and was slurring his words.

         ¶6 When the officer asked Attorney Schwitzer to turn off his car, the officer noticed there was a female passenger in the car. The female passenger was not breathing. The officer performed CPR until Fire and Rescue arrived. Fire and Rescue administered Narcan to the passenger, at which time she regained consciousness. The female passenger told a firefighter transporting her to the hospital that she had snorted heroin in Attorney Schwitzer's car and had lost consciousness. Upon searching Attorney Schwitzer's car, officers found a plastic baggie containing cocaine and a rolled up $20 bill which tested positive for cocaine.

         ¶7 On April 3, 2015, in Washington County circuit court, Attorney Schwitzer pled guilty and was convicted of possession of cocaine, as a party to a crime, an unclassified misdemeanor, in violation of Wis.Stat. § 961.41 (3g) (c) . A second count for possession of drug paraphernalia was dismissed but read in. The Washington County circuit court sentenced Attorney Schwitzer to five months in jail.

         ¶8 The OLR's amended complaint alleged the following count of misconduct with respect to Attorney Schwitzer's convictions:

Count 1: By engaging in the conduct leading to his convictions of three misdemeanors in State v. Schwitzer, Brown County Case No. 2013 CF 1142, and one misdemeanor in State v. Schwitzer, Marinette County Case No. 2014 CF 1150, Attorney Schwitzer violated SCR 20:8.4 (b)[1]

         ¶9 The OLR's amended complaint also alleged that prior to his August 2013 arrest, Attorney Schwitzer practiced law with Attorneys Todd G. Simon and Timothy J. Feldhausen as part of the law firm Schwitzer Simon, LLC. Attorney Schwitzer and his brother, Kevan Schwitzer created a website used by the law firm. Attorney Schwitzer's partners had no control or access to the content of the website. Following Attorney Schwitzer's arrest, Attorneys Simon and Feldhausen negotiated a separation from Schwitzer Simon, LLC, which was completed in May 2014 by the signing of a formal separation agreement. Before the separation was complete, Attorneys Simon and Feldhausen had asked Attorney Schwitzer to remove their information from the website. A formal separation agreement signed in May 2014 required Attorney Schwitzer to remove Simon and Feldhausen's information from the website.

         ¶10 The website, as controlled by Attorney Schwitzer, continued to operate and be accessible by the public following Attorney Schwitzer's suspension until at least November 10, 2014. Sometime between January 4, 2014, and August 11, 2014, Attorney Schwitzer caused the website to be modified to advertise a law firm called Matthew R. Schwitzer, LLC, of which Attorney Schwitzer was the only attorney. There is no registered Wisconsin limited liability company named Matthew R. Schwitzer, LLC, or any similarly named company other than Schwitzer Simon, LLC.

         ¶11 As of October 30, 2014, the website continued to state that Attorney Schwitzer was admitted to practice law in Wisconsin as a member of the Wisconsin Bar Association and was also admitted to practice before the Supreme Court of Wisconsin. As of that date, the website invited website visitors to "Call today . . . for a free initial consultation." The website identified the address for Matthew R. Schwitzer, LLC, as P.O. Box 8413, Green Bay, Wisconsin 54308, ...

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