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In re Disciplinary Proceedings Against Magana

Supreme Court of Wisconsin

November 28, 2017

In the Matter of Disciplinary Proceedings Against Sergio Magaña, Attorney at Law:
v.
Sergio Magaña, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney's license revoked.

          PER CURIAM.

         ¶1 We review Referee Jonathan V. Goodman's recommendation that the court declare Attorney Sergio Magaha in default and revoke his Wisconsin law license in connection with his work in 22 client matters, his non-cooperation with the Office of Lawyer Regulation's (OLR) investigation into his conduct, his conviction for misdemeanor operating while intoxicated (second offense), and his failure to report that conviction to the OLR and the clerk of this court. The referee also recommended that Attorney Magana be ordered to pay restitution and the costs of this proceeding.

         ¶2 Because no appeal has been filed, we review the referee's report pursuant to Supreme Court Rule (SCR) 22.17(2) .[1]After conducting our independent review of the matter, we agree with the referee that, based on Attorney Magana's failure to answer the amended complaint filed and served by the OLR, the OLR is entitled to a default judgment. We also agree with the referee that Attorney Magana's professional misconduct warrants the revocation of his law license. We further agree that Attorney Magana should pay restitution in the amounts described below, and that he should pay the full costs of this proceeding.

         ¶3 Attorney Magana was admitted to practice law in Wisconsin in September 2012. According to the OLR's amended complaint and the referee's report, Attorney Magana's law license has been suspended for nonpayment of bar dues and for failing to comply with the trust account certification requirements.[2]

         ¶4 In July 2016, the OLR filed a complaint against Attorney Magaha that raised 27 counts of misconduct committed in eight client matters: E.S. (Counts 1-4); M.M.-M. (Counts 5-8); G.A.H. (Counts 9-12); A.G. (Counts 13-15); O.M.G. (Counts 16-19); A.L. (Counts 20-22); M.S. (Counts 23-24); and M.R. (Counts 25-27). In August 2016, Attorney Magaha filed an answer to the complaint in which he admitted some counts of misconduct and denied the remainder.

         ¶5 In mid-October and mid-December 2016, the referee sent correspondence to Attorney Magaha requesting that he contact the referee to set a date for a scheduling conference. Attorney Magaha did not respond.

         ¶6 On December 27, 2016, the OLR filed an amended complaint against Attorney Magaha that raised 74 counts of misconduct. Seventy-two of these counts concerned misconduct allegedly committed in 22 client matters: E.S. (Counts 1-4); M.M.-M. (Counts 5-8); A.H. (Counts 9-12); A.G. (Counts 13-15); O.M.G. (Counts 16-19); A.L. (Counts 20-22); M.S. (Counts 23-24); M.R. (Counts 25-27); J.B.G. (Counts 28-29); J.F.C. (Counts 30- 34); R.A. (Counts 35-38); A.A. (Counts 39-41); A.C.C. (Counts 42-45); A.D. (Counts 46-49); R.G. (Counts 50-51); F.M. (Counts 52-53); F.R.A. (Counts 54-56); C.R. (Counts 57-60); I.R.M. and I.I. (Counts 61-64); I.M. (Counts 65-66); M.S. (Counts 67-70); and N.S.M. (Counts 71-72) . Two additional counts (Counts 73-74) related to Attorney Magaha's misdemeanor operating while intoxicated (second offense) conviction, entered in April 2014, and his subsequent failure to report the same to the OLR and the clerk of this court. The OLR served the amended complaint on Attorney Magaha via U.S. Mail.

         ¶7 On February 2, 2017, Attorney Magaha filed a request for additional time to respond to the OLR's amended complaint. Attorney Magaha confirmed that he had received the amended complaint via U.S. Mail, but claimed that his receipt of the document had been delayed because he had been away on a "holiday break" at the time the OLR had mailed it. He further alleged that the breadth of the allegations necessitated additional time for his response. Although the OLR agreed in writing to extend the answer deadline to March 15, 2017, Attorney Magaha failed to answer by that date, prompting the OLR to file a motion for default judgment in April 2017. The referee set the matter for a telephonic hearing at which Attorney Magaha failed to appear. On June 26, 2017, the referee filed a report recommending that Attorney Magaha be declared in default; concluding that Attorney Magaha engaged in serious professional misconduct warranting license revocation; and recommending that the court order Attorney Magana to pay both the full costs of this proceeding and restitution in certain specified amounts.

         ¶8 Attorney Magana has not filed an appeal from the referee's report and recommendation. Accordingly, our review proceeds pursuant to SCR 22.17(2).

         ¶9 A referee's findings of fact are affirmed unless clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis.2d 43, 675 N.W.2d 747. The court may impose whatever sanction it sees fit, regardless of the referee's recommendation. See In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis.2d 45, 660 N.W.2d 686.

         ¶10 We agree with the referee that Attorney Magana should be declared in default. Attorney Magana undisputedly received a copy of the amended complaint, but failed to appear or present a defense despite being given ample opportunity to do so. He has, therefore, defaulted. We also accept the referee's findings of fact based on the allegations of the amended complaint, and agree with the referee that those findings support a determination of misconduct on the 74 counts alleged in the OLR's complaint.

         ¶11 The scope of Attorney Magana's misconduct-which, again, is deemed admitted here-is vast and troubling. Given the volume of uncontested allegations in the OLR's 61-page amended complaint, we do not repeat them all here. It is sufficient to provide the following summary.

         ¶12 Attorney Magana practiced immigration law at a law firm in the Milwaukee area. Time and again, Attorney Magana collected flat fees and cost advances from his clients and did not perform the work he committed to do. He would often ignore his clients' requests for information about their cases. When he did communicate with his clients, he would supply them with false information-including fabricated documents and false case numbers-in order to deceive them into believing that their cases were progressing on schedule, when in fact they were languishing due to Attorney Magana's inactivity. Attorney Magana eventually left his employing law firm, but did not tell his clients of his departure or take any steps to protect their interests upon his departure. He was uncooperative with the OLR's investigation into his conduct. In April 2014, he pled guilty to a charge of misdemeanor operating while intoxicated (second offense), and failed to timely report that conviction to the OLR and the clerk of this court.

         ¶13 The OLR alleged and the referee concluded that this string of misdeeds amounted to the following ...


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