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In re Disciplinary Proceedings Against Sarbacker

Supreme Court of Wisconsin

September 15, 2017

In the Matter of Disciplinary Proceedings Against Steven J. Sarbacker, Attorney at Law:
v.
Steven J. Sarbacker, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          PER CURIAM.

         ¶1 We review the report and recommendation of Referee James C. Boll, approving a partial stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Steven J. Sarbacker and concluding that Attorney Sarbacker committed the professional misconduct alleged by the OLR, as stipulated by the parties. The referee determined that a 60-day suspension of Attorney Sarbacker's license to practice law is appropriate.

         ¶2 Upon careful review of this matter, we uphold the referee's findings of fact and conclusions of law and agree that a 60-day license suspension is an appropriate sanction for Attorney Sarbacker's misconduct. We also find it appropriate to impose the full costs of this proceeding, which are $1, 375.83 as of June 13, 2017. The OLR does not seek restitution and no restitution is ordered.

         ¶3 Attorney Sarbacker was admitted to practice law in Wisconsin in 1995. He practices in Portage, Wisconsin. In 2013, Attorney Sarbacker received a private reprimand for his conduct resulting in a misdemeanor conviction for operating while intoxicated. Private Reprimand No. 2013-15 (electronic copy available at https://compendium.wicourts.gov/app/raw/002634.html). In 2016, he received a private reprimand for his failure to obey a court order pertaining to child support. Private Reprimand No. 2016-9 (electronic copy available at https://compendium.wicourts.gov/app/raw/002899.html).

         ¶4 On December 21, 2016, the OLR filed a six count disciplinary complaint alleging five counts of professional misconduct involving one client matter and an additional count of professional misconduct based on criminal misconduct committed by Attorney Sarbacker. The OLR sought a 60-day suspension and costs.

         ¶5 The facts, to which the parties have stipulated, are as follows. In November 2011, D.F. and L.F., a married couple, obtained a $5, 441.20 money judgment against a tenant in a Columbia County circuit court proceeding. They retained Attorney Sarbacker to collect the money judgment. There was no written fee agreement. In July 2012, Sarbacker advised the clients in writing that he could no longer pursue their collection case. He did not charge them.

         ¶6 In 2013, the couple again retained Attorney Sarbacker to pursue the collection case. Again, there was no written fee agreement. By June of 2014, Attorney Sarbacker had successfully arranged for the Ho-Chunk Nation's Department of Treasury-Payroll Division (DOT-P) to garnish the wages of the debtor and, in July 2014, Attorney Sarbacker began receiving weekly garnishment checks on behalf of his clients. At this time, the outstanding debt was $5, 914.45.

         ¶7 Attorney Sarbacker and the clients agreed that his fee and costs would total $2, 032.73 and that he would take this amount from the garnishment checks, then send the balance of the garnishment funds to the clients. Attorney Sarbacker knew the total cost of representation exceeded $1, 000, a fact relevant to whether a written fee agreement was required.

         ¶8 Attorney Sarbacker began depositing garnishment checks into both his trust account and operating accounts. By December 29, 2014, Attorney Sarbacker had received 24 garnishment checks totaling $2, 038.30 - $5.57 more than his agreed upon fee of $2, 032.73. After December 29, 2014, Attorney Sarbacker received 25 additional garnishment checks, representing the clients' portion of the garnishment but he did not disburse these funds to the clients.

         ¶9 By June 2015, the clients had demanded their garnishment portion from Attorney Sarbacker but Attorney Sarbacker failed to send them the garnished funds. Accordingly, L.F. contacted the DOT-P and requested that all remaining garnishment checks be sent directly to the clients. On June 26, 2015, the DOT-P began sending weekly garnishment checks directly to the clients.

         ¶10 On July 14, 2015, L.F. sent a certified letter to Attorney Sarbacker listing the clients' unsuccessful attempts to contact him. She demanded payment plus interest of the clients' portion of the garnishment funds in his possession. Attorney Sarbacker failed to respond.

         ¶11 Finally, by early October 2015, Attorney Sarbacker sent the clients a cashier's check in the amount of $2, 171.29 and a receipt documenting $61.25 of incurred costs.[1]

         ¶12 The clients filed a grievance with the OLR. Attorney Sarbacker failed to promptly respond to the OLR's requests for information about the grievance.

         ¶13 Based on these events, the OLR alleged and Attorney Sarbacker has stipulated to five counts of ...


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