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In re Disciplinary Proceedings Against Baratki

Supreme Court of Wisconsin

October 3, 2017

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

         DISCIPLINARY PROCEEDINGS AGAINST BARATKI

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          PER CURIAM.

         ¶1 We review Referee James J. Winiarski's recommendation that the court declare Attorney Robert J. Baratki in default and suspend his Wisconsin law license for a period of 60 days for his misconduct in two client matters, his appearance in numerous client matters while his license to practice law was suspended, and his non-cooperation with the Office of Lawyer Regulation's (OLR) investigation into his conduct. The referee also recommended that Attorney Baratki be required to make restitution to a former client in the amount of $487.50, and to pay the full costs of this proceeding, which total $1, 428.93 as of June 13, 2017.

         ¶2 Because no appeal has been filed, we review the referee's report pursuant to Supreme Court Rule (SCR) 22.17(2) . After conducting our independent review of the matter, we agree with the referee that, based on Attorney Baratki's failure to answer the complaint filed by the OLR, the OLR is entitled to a default judgment. However, we disagree with the referee that Attorney Baratki's professional misconduct warrants only a 60-day suspension. We conclude, instead, that a six-month suspension is warranted. We agree with the referee that Attorney Baratki should be ordered to pay the full costs of the proceeding, as well $487.50 in restitution.

         ¶3 Attorney Baratki was admitted to practice law in Wisconsin in 1990. He has twice been privately reprimanded. In 2006, he was privately reprimanded for engaging in a consensual sexual relationship with his client when he did not have such a relationship with the client prior to the establishment of their attorney-client relationship, in violation of former SCR 20:1.8(k) (2) . See Private Reprimand No. 2006-20 (electronic copy available at https://compendium.wicourts.gov/app/raw/001926.html). In 2014, he was privately reprimanded for: (1) transmitting a letter to opposing counsel at a time his license was suspended for noncompliance with mandatory continuing legal education (CLE) requirements, in violation of SCR 20:8.4(f); and (2) acting on behalf of clients, including appearances in court, during a period when his license was suspended for noncompliance with CLE requirements, in violation of SCR 31.10(1), enforced via SCR 20:8.4(f). See Private Reprimand No. 2014-4 (electronic copy available at https://compendium.wicourts.gov/app/raw/002644.html).

         ¶4 Attorney Baratki's law license is currently subject to administrative and temporary suspensions. It is administratively suspended for failure to comply with mandatory CLE reporting requirements. It is temporarily suspended due to his willful failure to cooperate with OLR investigations into his conduct. See Office of Lawyer Regulation v. Baratki, 2016XX1482-D and 2016XX1830-D, unpublished orders ( S.Ct. December 14, 2016 and February 13, 2017, respectively).

         ¶5 On September 28, 2016, the OLR filed the current complaint against Attorney Baratki. The complaint alleges nine counts of professional wrongdoing, divided into three categories of misconduct. The following facts are taken from the OLR's complaint.

         Client K.D. (Counts 1-4)

         ¶6 In February 2014, K.D. retained Attorney Baratki to represent her in a divorce proceeding.

         ¶7 Beginning in April 2014, Attorney Baratki began sending flirtatious, and sometimes sexual, text messages to K.D. In April 2014, Attorney Baratki sent K.D. a text message that read, "I forgot to tell you yesterday your top was really pretty, " and, "You[] are so bad." When K.D. responded, "I think it is your imagination, " Attorney Baratki replied, "Nope, it was you and your abs." In May 2014, Attorney Baratki texted K.D. to suggest that she "could stop over for a 10 or 15 minute pawing before [K.D.'s daughter] stops over." Attorney Baratki later texted such appeals as, "Are you ignoring me?" and, "You don't love me anymore." Attorney Baratki also bragged to K.D. about how many women he had been with, suggested that she should "date, " and forecasted her sexual predilections. In one of his meetings with K.D., Attorney Baratki lifted her shirt and kissed her abdominal area.

         ¶8 In December 2014, K.D. retained new counsel and Attorney Baratki's flirtatious communications ended.

         ¶9 In July 2015, the OLR sent Attorney Baratki notice of a formal investigation asking him to respond to a grievance filed by K.D. The OLR requested copies of all of his communications with K.D., as well as a complete copy of his file. Although Attorney Baratki provided a response to the OLR's investigative request, he did not provide the OLR with copies of his communications with K.D., or a complete copy of his file. After another written request from the OLR for a copy of these documents, Attorney Baratki provided what he claimed was a copy of all text messages pertaining to K.D.'s grievance. This claim was not true; Attorney Baratki omitted several text exchanges. When the OLR wrote to Attorney Baratki requesting copies of the omitted text messages, he failed to respond. When the OLR wrote to Attorney Baratki requesting a response to K.D.'s allegation that he had lifted her shirt and kissed her abdominal area, he failed to respond.

         ¶10 Based on the course of conduct described above, the OLR alleged in its complaint that Attorney Baratki represented K.D. despite a significant risk that his representation would be materially limited by his personal interest, in violation of SCR 20:1.7 (a) (2)[1] (Count 1); engaged in harassment on the basis of sex, in violation of SCR 20:8.4 (i)[2] (Count 2); violated that portion of the attorney's oath which requires abstention from all offensive personality, in violation of SCR 20:8.4(g)[3] and SCR 40.15[4] (Count 3); and failed to timely provide relevant information during the course of the OLR's investigation, in violation of SCR 22.03(2) and SCR 22.03(6), [5] enforced through SCR 20:8.4(h)[6] (Count 4).

         Client T.T. (Counts 5-6)

         ¶11 In June 2013, T.T. retained Attorney Baratki to represent her in a divorce proceeding. Attorney Baratki failed to appear at a March 17, 2015 scheduling conference. On March 31, 2015, Attorney Baratki informed the circuit court that he no longer represented T.T. Attorney Baratki did not file a notice of withdrawal, did not request permission from the court to withdraw, and did not give T.T. reasonable notice or the opportunity to obtain substitute counsel. Following his withdrawal, Attorney Baratki did not provide T.T. with an accounting of his time or the services provided.

         ¶12 After T.T. filed a grievance with the OLR, Attorney Baratki provided the OLR with an accounting showing a balance due to T.T. in the amount of $487.50, which remains unpaid.

         ¶13 Based on the course of conduct described above, the OLR alleged in its complaint that Attorney Baratki failed to act with reasonable diligence and promptness in representing T.T., in violation of SCR 20:1.3[7] (Count 5); and failed to take proper steps upon termination of the representation to protect T.T.'s interests, in violation of SCR 20:1.16(d)[8] (Count 6).

         Practicing While Suspended (Counts 7-9)

         ¶14 On September 30, 2015, the State Bar of Wisconsin sent Attorney Baratki a certified letter advising him that if he failed to pay his fiscal 2016 State Bar dues, as well as sign a trust account certification, by 5:00 p.m. on October 31, 2015, he would be suspended from the practice of law. Attorney Baratki personally signed the receipt for the certified letter. Attorney Baratki failed to pay his bar dues or sign the trust account certification by the October 31, 2015 deadline.

         ¶15 On November 2, 2015, Attorney Baratki sent the State Bar a check for the dues owed, as well as for a late fee and a reinstatement fee. The State Bar received the check on November 5, 2015. However, Attorney Baratki ...


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