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In re Disciplinary Proceedings Against Ruppelt

Supreme Court of Wisconsin

July 7, 2017

In the Matter of Disciplinary Proceedings Against Mark Alan Ruppelt, Attorney at Law:
v.
Mark Alan Ruppelt, Respondent-Appellant. Office of Lawyer Regulation, Complainant-Respondent,

          SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 15, 2017

         DISCIPLINARY PROCEEDINGS AGAINST RUPPELT

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          For the respondent-appellant, there were briefs filed by Terry E. Johnson and Peterson, . Johnson & Murray, S.C., Milwaukee, and oral argument by Terry E. Johnson.

          For the complainant-respondent, there was a brief filed by Paul W. Schwarzenbart and Office of Lawyer Regulation, Madison, and oral argument by Paul W. Schwarzenbart.

          PER CURIAM.

         ¶1 This disciplinary matter comes to the court on Attorney Ruppelt's appeal of a report and recommendation of Referee James J. Winiarski. The referee based his report on a stipulation between Attorney Ruppelt and the Office of Lawyer Regulation (OLR), in which Attorney Ruppelt admitted 16 counts of misconduct and agreed that his Wisconsin law license should be suspended for one year. In his report, the referee recommended a slightly longer suspension than what the parties had agreed upon: a 15-month suspension, rather than the parties' stipulated one-year suspension. Through his appeal, Attorney Ruppelt challenges the referee's 15-month suspension; he argues that it is excessive under our disciplinary case law, whereas the parties' stipulated one-year suspension is the appropriate length. Attorney Ruppelt also criticizes certain characterizations and findings by the referee, and proposes that this court should adopt a policy by which the court would give deference to parties' disciplinary stipulations.

         ¶2 When we review a referee's report and recommendation in an attorney disciplinary case, we affirm the referee's findings of fact unless they are found to be clearly erroneous, but we review the referee's conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis.2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline to impose given the particular facts of each case, independent of the referee's recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis.2d 45, 660 N.W.2d 686.

         ¶3 After reviewing this matter and considering Attorney Ruppelt's appeal, we accept the referee's factual findings and legal conclusions based on the parties' stipulation. We agree with the referee's recommendation that a 15-month suspension is appropriate, despite Attorney Ruppelt's arguments to the contrary. We also reject Attorney Ruppelt's remaining arguments. Finally, we remand this matter to the referee for supplemental proceedings on the issue of restitution.

         ¶4 The OLR initiated this disciplinary proceeding with the filing of a five-count complaint, which it later amended in an 18-count complaint seeking a 15-month suspension. Attorney Ruppelt filed an answer in which he denied any professional misconduct. During the pre-hearing phase of this proceeding, the OLR dismissed two counts (Counts 15 and 16) due to evidentiary problems, leaving 16 counts to be resolved.

         ¶5 Shortly before the scheduled hearing in this matter, Attorney Ruppelt entered into a stipulation in which he admitted the remaining 16 counts of misconduct. Attorney Ruppelt and the OLR agreed to a one-year suspension.

         ¶6 The referee's report accepted the parties' stipulation and determined that the stipulated facts supported legal conclusions that Attorney Ruppelt had engaged in the remaining 16 counts of professional misconduct. The referee's factual findings and conclusions of law are described in the following paragraphs.

         ¶7 Attorney Ruppelt was admitted to the practice of law in this state in May 1994. He currently practices law in Milwaukee. Attorney Ruppelt has been the subject of professional discipline on one previous occasion: in 2014, this court publicly reprimanded him for engaging in improper sexual relations with a client and providing false information to his employer and the OLR regarding the nature and timing of his relationship with the client. See In re Disciplinary Proceedings Against Ruppelt, 2014 WI 53, 354 Wis.2d 738, 850 N.W.2d 1.

         ¶8 In the instant case, Attorney Ruppelt's actions fall into two broad categories of misconduct, both of which involve the same client, S.J. The first category of misconduct concerns Attorney Ruppelt's conversion of $50, 000 of trust account funds to his own use, though he later repaid that amount. The second category of misconduct generally concerns Attorney Ruppelt's additional trust fund improprieties; his dishonest billing practices; his efforts to conceal his misconduct from opposing counsel, the circuit court, and the OLR; and his failure to reasonably consult with S.J.

         Misuse of $50, 000 (Counts 1-5)

         ¶9 Attorney Ruppelt practiced law as a shareholder in a small law firm with one other shareholder.

         ¶10 In approximately July 2006, S.J. hired the firm to represent him in a criminal matter involving a former girlfriend. About two years later, the firm began representing S.J. in a related civil action brought by his former girlfriend. Attorney Ruppelt was counsel of record for S.J. in both the criminal and civil cases. S.J.'s former girlfriend retained a lawyer to represent her in the civil action.

         ¶11 Between August 2006 and June 2008, at least $170, 332.55 of S.J.'s funds were deposited into the firm's trust account, most of which, as directed by Attorney Ruppelt, were applied to pay the firm for fees and expenses for the representation of S.J. in his criminal and civil cases.

         ¶12 In approximately May 2007, Attorney Ruppelt needed money in connection with his and his then-wife's purchase of a home. Attorney Ruppelt and the firm's other shareholder agreed that the firm would loan $50, 000 to Attorney Ruppelt for that purpose. Attorney Ruppelt directed the firm's office manager to disburse $50, 000 from the firm's trust account to the firm; to attribute that payment to the S.J. matter; and to then disburse that $50, 000 to him. About three months later, Attorney Ruppelt directed the office manager to deposit $50, 000 of his own personal funds to the firm's trust account. During the course of the OLR investigation, Attorney Ruppelt provided testimony under oath that the $50, 000 trust account disbursement was for legal fees earned by the firm in S.J.'s criminal and civil cases. This testimony was untrue.

         ¶13 The parties stipulated, and the referee agreed, that Attorney Ruppelt's actions described above constituted a violation of SCR 20:1.15(b)(1)[1] (Count 1); SCR 20:8.4(c)[2] (Counts 2 and 4); SCR 20:1.15 (b) (3)[3] (Count 3); and SCR 22:03(6), [4]enforceable via SCR 20:8.4(h)[5] (Count 5).

         Other conduct (Counts 6-14, 17-18)[6]

         ¶14 As noted above, the remaining misconduct counts concern Attorney Ruppelt's additional trust fund improprieties; his dishonest billing practices; his efforts to conceal his misconduct from opposing counsel, the circuit court, and the OLR; and his failure to reasonably consult with S.J. The referee made the following findings and conclusions regarding these counts.

         ¶15 Between January 2007 and July 2008, Attorney Ruppelt caused the firm to disburse as much as $104, 644.68 of S.J.'s funds held as advanced fees in the firm's trust account in excess of the amounts that had been earned by the firm on S.J.'s cases. The parties stipulated, and the referee agreed, that this conduct constituted a violation of SCR 20:1.15(b)(4)[7] and SCR 20:8.4(c) (Counts 6 and 7).

         ¶16 Between August 2006 and July 2008, Attorney Ruppelt also caused the firm to disburse as much as $134, 446.88 in fees from S.J.'s funds in trust, without providing S.J. with written notice of the disbursements at least five business days before making them, and without identifying the balance of S.J.'s funds in trust following the withdrawal of those fees. The parties stipulated, and the referee agreed, that this conduct constituted a violation of SCR 20:1.15(g)(1)[8] (Count 8).

         ¶17 In 2008, Attorney Ruppelt used a general durable power of attorney from S.J. to liquidate S.J.'s life insurance policy without consulting with S.J. Attorney Ruppelt then deposited an $18, 779.51 check payable from the life insurance company to S.J. in the firm's trust account, endorsing the check using S.J.'s power of attorney. The deposit of funds from the insurance company does not appear in S.J.'s client ledger. The parties stipulated, and the referee agreed, that this conduct constituted a violation of SCR 20:1.4(a)(2)[9] (Count 9).

         ¶18 Both before and after Attorney Ruppelt's representation of S.J. ended, S.J. sent several letters to Attorney Ruppelt stating that he did not know how much of his money remained in the trust account. Attorney Ruppelt failed to provide S.J. with a full accounting for the funds received in trust either during or after the representation. The parties stipulated, and the referee agreed, that by failing to provide S.J. with a full, written accounting for his funds at the termination of the representation, Attorney Ruppelt violated SCR 20:1.15(d) (2)[10] (Count 10) .

         ¶19 In the civil action brought by S.J.'s girlfriend against S.J., Attorney Ruppelt produced in discovery, pursuant to a circuit court order, twelve invoices dated between February of 2007 and October of 2009, when those bills were either altered in June of 2010 or not generated until June of 2010. The parties ...


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