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In re Disciplinary Proceedings against Rajek

Supreme Court of Wisconsin

September 15, 2017

In the Matter of Disciplinary Proceedings Against Michael M. Rajek, Attorney at Law:
v.
Michael M. Rajek, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Complaint dismissed.

          PER CURIAM.

         ¶1 We review Referee James R. Erickson's report recommending, consistent with a stipulation executed by the Office of Lawyer Regulation (OLR) and Attorney Michael M. Rajek, that we dismiss a pending disciplinary complaint against Attorney Rajek. We agree with the OLR's discretionary determination that the alleged rule violations do not warrant discipline in light of our decision in In re Disciplinary Proceedings Against Rajek, 2015 WI 18');">2015 WI 18, 361 Wis.2d 60, 859 N.W.2d 439. (Raj ek I.) We therefore dismiss the complaint. No costs will be imposed.

         ¶2 Attorney Rajek was admitted to the practice of law in Wisconsin in 1974. In 1986, he received a consensual private reprimand for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Private Reprimand No. 1986-5. In 2006, he received a consensual public reprimand for misconduct consisting of committing a criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Public Reprimand of Michael J. Rajek No. 2006-4 (electronic copy available at https://compendium.wicourts.gov/app/raw/001848.html).

         ¶3 On April 7, 2014, the OLR filed the disciplinary complaint presently before this court. It alleged four counts of misconduct involving two clients and it sought a 60-day license suspension and costs. Two of the counts of alleged misconduct involved deficiencies in the fee agreement Attorney Rajek used. The fee agreement required a client to pay a specified amount of money up-front before Attorney Rajek would commence work. Although characterized as a "non-refundable retainer" the payment was actually an "advanced fee" as defined in SCR 20:1.0 (ag) . The fee agreement stated that the fee would not be held in trust, thus rendering it subject to SCR 20:1.15(b)(4m) ("Alternative protection for advanced fees.") This rule provides that an attorney electing not to hold an advanced fee in trust must provide certain notices to the client, in writing, upon accepting the advanced fee payment.[1]Attorney Rajek's fee agreement did not include several of these required notices, nor did any other document provide these required notices to the client at the outset of the representation. As such, by failing to include in his fee agreement the notices required by SCR 20:1.15(b)(4m)a.4., 5., and 6., Attorney Rajek allegedly violated those subsections of SCR 20:1.15(b)(4m) with respect to two clients, T.L. and M.J.

         ¶4 The other two counts of alleged misconduct pertained to an unresolved fee dispute with one of these clients and to Attorney Rajek's delay in cooperating with the ensuing OLR investigation. In August 2011, M.J. hired Attorney Rajek to represent her on a non-criminal traffic charge. The fee agreement required M.J. to pay Attorney Rajek an initial $2, 500. M.J.'s case proceeded to a jury trial at which M.J. was found guilty. Attorney Rajek filed a Notice of Appeal on M.J.'s behalf but M.J. opted to terminate representation and proceed pro se. On April 26, 2012, Attorney Rajek sent M.J. a final bill reflecting a balance due of $8, 250. M.J. formally disputed the amount due and M.J. and Attorney Rajek were unable to resolve their disagreement regarding the fee.

         ¶5 Former SCR 20: 1.15(b) (4m) c provided that when a fee dispute cannot be resolved upon termination of representation:

Upon timely receipt of written notice of a dispute from the client, the lawyer shall attempt to resolve that dispute with the client, and if the dispute is not resolved, the lawyer shall submit the dispute to binding arbitration with the State Bar Fee Arbitration Program or a similar local bar association program within 30 days of the lawyer's receipt of the written notice of dispute from the client.

         (Emphasis added.)

         ¶6 On May 11, 2012, Attorney Rajek wrote to M.J., stating in part:

I am in receipt of your letter disputing the bill that was sent to you regarding trial expenses followed by a notice informing the court that I will no longer be representing you. It is mandatory that your dispute be subject to binding arbitration. I have scheduled this matter with Judge Proctor for June 5, 2012, at 11:00 a.m. at Proctor ADR, LLC located at 116 West Grand Ave, Eau Claire, Wl 54703.

         Although Judge Proctor is a former Eau Claire County circuit court judge, who now provides alternative dispute resolution services, he was not affiliated with the State Bar Fee Arbitration Program or a similar local bar association program. Attorney Rajek's selection of Judge Proctor was unilateral.

         ¶7 M.J. objected to this choice and contacted the State Bar of Wisconsin Fee Arbitration Program, requesting binding arbitration. The State Bar, in turn, contacted Attorney Rajek to coordinate arbitration but, as of the date the disciplinary complaint was filed, Attorney Rajek had not agreed to submit to arbitration through the State Bar's arbitration program. The OLR alleged this violated SCR 20:1.15(b)(4m)c.

         ¶8 Attorney Rajek also delayed approximately two months before responding to the OLR's request for information regarding these matters. The OLR alleged this violated SCR 22.03(2).

         ¶9 While the OLR and Attorney Rajek litigated this disciplinary proceeding, we issued our decision in Rajek I. That matter also involved several counts of misconduct related to Attorney Rajek's fee agreement. We concluded that Attorney Rajak had committed five of the six alleged violations of the Rules of Professional Conduct but we opted to impose no discipline and we reduced the costs he was required to pay. In re Disciplinary Proceedings Against Rajek, 2015 WI 18');">2015 WI 18, ¶3, 361 Wis.2d 60, 859 N.W.2d 439. We stated:

[W] e conclude that Attorney Rajek committed the rule violations on five counts as found by the referee. The violations, however, involved relatively minor failures of communication, including failures in some instances to provide certain notices or pieces of information to clients under Supreme Court Rule (SCR) 20:1.15(b)(4m), which sets forth the alternative procedure for handling advanced fees. They did not involve the sufficiency or quality of the legal representation provided by Attorney Rajek to his clients. Given the particular facts of this case and the nature of the violations, we determine that it is not necessary to impose any discipline on ...

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