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In re Disciplinary Proceedings Against Heins

Supreme Court of Wisconsin

October 19, 2017

In the Matter of Disciplinary Proceedings Against Janet L. Heins, Attorney at Law:
v.
Janet L. Heins, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

          PER CURIAM.

         ¶1 We review a report filed by Referee James W. Mohr, Jr., concluding, based on a stipulation filed by the Office of Lawyer Regulation (OLR) and Attorney Janet L. Heins, that Attorney Heins committed six counts of professional misconduct as alleged in the OLR's complaint. The referee agrees with the parties that a public reprimand is appropriate discipline for Attorney Heins' misconduct. The referee recommends, consistent with the stipulation, that we require Attorney Heins to submit the attorney fee dispute with her former client, J.R., to binding arbitration, that we direct her to abide by any ensuing arbitration order, and that she be assessed the full costs of the proceeding, which are $2, 378.02 as of July 24, 2017.

         ¶2 After careful review, we accept the referee's factual findings, conclusions of law, and recommendation. We commend the referee for his report, which helpfully sets forth the framework for consideration of the parties' stipulation, establishes the factual basis for his legal conclusions, and provides a reasoned analysis and authority supporting his recommendation to accept the stipulated discipline.

         ¶3 We agree that a public reprimand is appropriate here, and we agree that Attorney Heins should be required to submit her fee dispute with J.R. to binding arbitration, to comply with any resulting arbitration award, and that she shall bear the full costs of this proceeding. The OLR does not seek restitution and, based on this record, restitution is not warranted at this time.

         ¶4 Attorney Heins was admitted to practice law in Wisconsin in 1991. She resides and practices law in Mequon. She has no prior discipline.[1]

         ¶5 On December 15, 2016, the OLR filed a six-count complaint against Attorney Heins alleging misconduct involving three client matters. The OLR initially sought a 60-day license suspension and an order requiring Attorney Heins to submit a fee dispute with a client to binding arbitration. Attorney Heins, by counsel, filed an Answer characterizing the OLR's allegations as a failure "to fully meet a handful of technical requirements."

         ¶6 Referee Mohr was appointed. At an ensuing scheduling conference, the referee scheduled a two-day evidentiary hearing to commence June 19, 2017.

         ¶7 On June 14, 2017, the OLR and Attorney Heins executed and filed a stipulation. In the stipulation, Attorney Heins states that she:

[A]dmits the allegations contained in that Complaint and agrees that OLR can prove the allegations of six (6) counts of misconduct and that the referee may use the factual allegations in the Complaint as an adequate factual basis in the record for a determination of misconduct as to each of those counts.

         ¶8 The stipulation further provides that the parties agree that a public reprimand is the appropriate level of discipline for Attorney Heins' misconduct and that she should be ordered to submit her fee dispute with J.R. to binding arbitration before the State Bar Fee Arbitration Program and comply with any arbitration award, subject to any rights and remedies provided for by the Program's rules.

         ¶9 In the stipulation, Attorney Heins further avers that the stipulation did not result from plea bargaining; she fully understands the misconduct allegations; she fully understands her right to contest the matter; she fully understands the ramifications of her entry into the stipulation; she fully understands her right to consult with counsel, states that she has in fact consulted with counsel; and states that her entry into the stipulation is made knowingly and voluntarily.

         ¶10 The referee noted that this stipulation was filed after all discovery was completed, shortly before the hearing. The referee observed that the effect of the stipulation was essentially an admission to all of the material allegations of the complaint. The referee construed the stipulation as a withdrawal of all defenses to the complaint and a plea of no contest. Proceeding consistent with SCR 22.14(2), [2] the referee ascertained whether there was an adequate factual basis for each allegation, then made a determination of misconduct with respect to each allegation.

         ¶11 The first two counts of the complaint involve Attorney Heins' representation of J.R. The complaint alleged and the parties stipulated that Attorney Heins represented J.R. in an employment matter. On February 16, 2012, they entered into a written fee agreement providing that $25, 000 in advance fees paid by J.R. would be placed in Attorney Heins' business account. The written agreement further provided that Attorney Heins would provide an accounting of the fees earned. The agreement provided that if there was any dispute about fees, she would give notice to J.R. and, if the dispute was not resolved, she would submit the dispute to binding arbitration through the State Bar Fee Arbitration Program.

         ¶12 By December 2014, all but $645.23 of the $25, 000 in advance fees had been billed. J.R. made a second advance payment of fees in the amount of $3, 000.

         ¶13 In January 2015, Attorney Heins sought to withdraw as counsel for J.R., citing health issues. On February 12, 2015, she sent J.R a "Final Statement" of fees. Attorney Heins indicated that a refund in the amount of $1, 411.53 was due and she paid that amount to him. The statement did not contain the notices required by former SCR 20:1.15(b)(4m)b.[3]

         ¶14 Ten days later, on February 22, 2015, J.R. notified Attorney Heins that he disputed the fees charged and asked for a "significant refund" of the total $28, 000 he had paid.

         ¶15 On February 24, 2015, Attorney Heins indicated she would not be making an additional refund. On March 2, 2015, J.R. again disputed the fees. In the summer of 2015, J.R. submitted the fee dispute with Attorney Heins to the State Bar Fee Arbitration Program.

         ¶16 Attorney Heins did not respond to any correspondence sent to her by the State Bar Fee Arbitration Program and failed to submit to arbitration.

         ¶17 Count One of the complaint alleged that, by failing to provide to J.R., at the termination of her representation of him, all notices required by former SCR 20:1.15(b)(4m)b., Attorney Heins violated that rule.

         ¶18 Count Two alleged that, by failing to submit the fee dispute with J.R. to arbitration, Attorney Heins violated former SCR 20:1.15(b)(4m)c., [4] which provided that 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 ...


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