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In re Disciplinary Proceedings Against Philip A. Shepherd

Supreme Court of Wisconsin

June 23, 2017

In the Matter of Disciplinary Proceedings Against Philip A. Shepherd, Attorney at Law:Office of Lawyer Regulation, Complainant,
v.
Philip A. Shepherd, Respondent.

          DISCIPLINARY PROCEEDINGS AGAINST SHEPHERD

          PER CURIAM.

         ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

         ¶1 We review a report filed by Referee John B. Murphy concluding that Attorney Philip A. Shepherd committed ten counts of misconduct as alleged in the Office of Lawyer Regulation's (OLR) complaint. The referee determined that a public reprimand was appropriate discipline for Attorney Shepherd's misconduct. The referee also recommended that Attorney Shepherd should be directed to pay restitution in two client matters and should be assessed the full costs of the proceeding, which are $1, 887.96 as of March 8, 2017.

         ¶2 After careful review of the matter, we conclude that the referee's findings of fact are supported by clear, satisfactory, and convincing evidence. We adopt the referee's conclusions of law. We agree that the appropriate discipline for Attorney Shepherd's misconduct is a public reprimand, and we agree that Attorney Shepherd should be required to pay restitution as recommended, and shall bear the full costs of this proceeding.

         ¶3 Attorney Shepherd graduated from law school in Minnesota in 1991 and was admitted to practice law in Wisconsin in 2006. He practiced in the Fond du Lac area. He has no prior discipline but his Wisconsin law license is presently suspended. On October 31, 2014, the State Bar of Wisconsin administratively suspended Attorney Shepherd's Wisconsin law license for failure to comply with trust account certification requirements. On June 2, 2015, the Board of Bar Examiners (BBE) administratively suspended Attorney Shepherd's Wisconsin law license for failure to comply with continuing legal education requirements. On October 31, 2015, the State Bar of Wisconsin administratively suspended Attorney Shepherd's Wisconsin law license for failure to pay bar dues.

         ¶4 On March 7, 2016, this court temporarily suspended Attorney Shepherd's Wisconsin law license for his failure to cooperate in an OLR investigation into conduct that resulted in Counts nine and ten of the disciplinary complaint in this proceeding.

         ¶5 On April 12, 2016, the OLR filed a ten-count complaint against Attorney Shepherd alleging misconduct involving three client matters as well as failure to cooperate with the OLR.

         ¶6 The first four counts of the OLR complaint involve Attorney Shepherd's representation of Jean and James B., a married couple, who hired Attorney Shepherd to complete a health care power of attorney for Jean's mother. They did not sign a written fee agreement. Attorney Shepherd completed the paperwork and Jean gave Attorney Shepherd a $200 check, which he deposited into his business account. On December 23, 2013, Jean met with Attorney Shepherd to begin drafting guardianship paperwork for her mother and paid Attorney Shepherd $2, 000 in advanced fees; she did not sign a written fee agreement. Attorney Shepherd deposited the $2, 000 into his business account. Later that day, Jean learned that a guardianship would not be necessary. She contacted Attorney Shepherd and told him not to proceed with the guardianship work.

         ¶7 In March of 2014, James asked Attorney Shepherd to draft an estate plan for his family and to form a limited liability corporation (LLC). At that time, Attorney Shepherd had not refunded any fees to these clients or sent them an accounting. They indicated they wished to use their previously paid funds for this legal work. Attorney Shepherd did not prepare a fee agreement for this work. He completed the LLC and estate work in April 2014. On August 4, 2014, the clients requested an accounting and a refund of any unearned fees. When Attorney Shepherd failed to provide an accounting or a refund, the clients filed a grievance.

         ¶8 On March 2, 2015, Attorney Shepherd created and submitted to the OLR an invoice showing $1, 577.50 of work completed on the guardianship, estate plan, and LLC matters, leaving $622.50 in unearned fees. Attorney Shepherd has not refunded any unearned fees to these clients.

         ¶9 The OLR complaint alleged four counts of misconduct with respect to Attorney Shepherd's representation of Jean and James: (1) by accepting a $2, 000 advance fee for legal work without a written fee agreement, when it was reasonably foreseeable that the total cost of the representation would exceed $1, 000, and did exceed $1, 000, Attorney Shepherd violated SCR 20:1.5(b)(1) and (2);[1] (2) by failing to place advanced fees into his trust account, without evidence of an intention to follow the SCR 20:1.15(b)(4m) alternative, Attorney Shepherd violated SCR 20:1.15(b)(4);[2] (3) by failing to respond to the clients' requests for information regarding fees and a final accounting, Attorney Shepherd violated SCR 20:1.5(b)(3);[3] and (4) by failing to refund any unearned fees to these clients, Attorney Shepherd violated SCR 20:1.16(d).[4]

         ¶10 Counts five through eight of the complaint involved Attorney Shepherd's representation of I.P., in connection with documenting the sale of a farm.

         ¶11 In early 2014, I.P. hired Attorney Shepherd to draft paperwork for the sale and transfer of a farm. On January 23, 2014, I.P. met with Attorney Shepherd to discuss the necessary legal work and gave him several original documents. Attorney Shepherd indicated that the work would be completed within a month. At that meeting, I.P. paid Attorney Shepherd $1, 000 in advanced fees, but did not sign a written fee agreement. Attorney Shepherd did not deposit I.P.'s fees into his trust account and did no work on I.P.'s behalf.

         ¶12 From March through May of 2014, I.P. and her daughter repeatedly attempted to contact Attorney Shepherd, without success. Eventually I.P. hired another attorney to document the farm's sale. Attorney Shepherd has not refunded any unearned fees to I.P., despite her request that he do so.[5]

         ¶13 The OLR complaint alleged four counts of misconduct with respect to Attorney Shepherd's representation of I.P.: (1) by failing to take steps to complete the work that he had been hired to perform on I.P.'s behalf, Attorney Shepherd violated SCR 20:1.3;[6] (2) by failing to respond to I.P.'s status inquiries or otherwise keep I.P. informed regarding the status of her matter, Attorney Shepherd violated SCR 20:1.4(a)(3) and (4);[7] (3) by failing to place advanced fees into his trust account, and without evidence of an intention to follow the SCR 20:1.15(b)(4m) alternative, Attorney Shepherd violated SCR 20:1.15(b)(4); and (4) by failing to refund unearned fees to I.P., Attorney Shepherd violated SCR 20:1.16(d).

         ¶14 Counts nine and ten of the OLR complaint pertain to Attorney Shepherd's unauthorized representation of M.T. and his failure to cooperate with the OLR's inquiries about this incident. Attorney Shepherd's Wisconsin law license has been administratively suspended since October 31, 2014. In March 2015, Attorney Shepherd agreed to prepare a will and related documents for M.T. M.T. paid Attorney Shepherd $700 and Attorney Shepherd completed the work for M.T.

         ¶15 On November 16, 2015, the OLR contacted Attorney Shepherd requesting specific information regarding his work for M.T., which was conducted while his law license was suspended. Attorney Shepherd did not respond. On December 17, 2015, the OLR personally served Attorney Shepherd with a letter directing him to respond to the OLR's request regarding M.T. Again, Attorney Shepherd did not respond. The OLR filed a notice of motion and motion requesting an order to show cause as to why Attorney Shepherd's license should not be suspended for failing to cooperate in an OLR investigation. On March 7, 2016, this court granted the OLR's motion and temporarily suspended Attorney Shepherd's law license. His license remains temporarily suspended.

         ¶16 The OLR complaint alleged two counts of misconduct regarding this incident: (1) by practicing law while his license was suspended, Attorney Shepherd violated SCR 22.26(2), [8]enforced via SCR 20:8.4(f);[9] and (2) by failing to respond to the OLR's request for information, Attorney Shepherd violated SCR 22.03(6), enforceable via SCR 20:8.4(h).[10]

         ¶17 Attorney Shepherd filed an answer in which he admitted to "the general factual basis for Counts 1-10" and to the "general legal conclusions in Counts 1-10." Referee Murphy was appointed.

         ¶18 At an ensuing scheduling conference, Attorney Shepherd indicated he did not want to contest the allegations contained in the complaint nor did he contest the OLR's motion for judgment on the pleadings. He did, however, contest the proposed discipline, maintaining private discipline was sufficient in view of his struggles with depression and other personal challenges. The OLR was directed to forward a stipulation to Attorney Shepherd by September 9, 2016.

         ¶19 By letter dated October 11, 2016, the OLR informed the referee that Attorney Shepherd had not returned the stipulation or otherwise responded to the OLR. The OLR sought a judgment on the pleadings.

         ¶20 The OLR and Attorney Shepherd then executed and filed a Waiver of Right to a Hearing and each party submitted briefs on the proper level of discipline.

         ¶21 The referee filed his findings of fact, conclusions of law, and recommendation for discipline on February 24, 2017. The referee determined that the OLR had met its burden of proof with respect to the ten counts of misconduct alleged in the complaint. Essentially, the referee found that Attorney Shepherd admitted to each and every allegation contained in the complaint, based on his admissions contained in the Answer and in the Waiver of Right to a Hearing, together with Attorney Shepherd's statements made during the telephone scheduling conferences.

         ¶22 The referee then considered the appropriate discipline, considering the seriousness, nature, and extent of misconduct, the level of discipline needed to protect the public and the legal system from repetition of the misconduct, the need to impress on the attorney the seriousness of the misconduct, and the need to deter others from committing similar acts. In re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72, 290 Wis.2d 30, 712 N.W.2d 877; citing In re Disciplinary Proceedings Against Charlton, 174 Wis.2d 844, 875-76, 498 N.W.2d 380 (1993). The referee concluded that in this case, public discipline is appropriate. The referee recommends that we publicly reprimand Attorney Shepherd, that we order him to pay restitution, and that we impose the full costs of the proceeding on Attorney Shepherd.

         ¶23 Attorney Shepherd sought to file an appeal from the referee's report and recommendation, but, by order dated May 15, 2017 the court ruled that his appeal was untimely.[11] ...


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