In the Matter of Disciplinary Proceedings Against Daniel J. Rostollan, Attorney at Law:
Daniel J. Rostollan, Respondent. Office of Lawyer Regulation, Complainant,
DISCIPLINARY PROCEEDINGS AGAINST ROSTOLLAN
disciplinary proceeding. Attorney's license
We review Referee Jonathan V. Goodman's amended report
recommending that this court suspend Attorney Daniel J.
Rostollan's license to practice law in Wisconsin for a
period of two years and direct him to pay restitution as well
as the costs of this proceeding.
No appeal has been filed so we review the referee's
report pursuant to Supreme Court Rule (SCR) 22.17(2) . After
conducting an independent review of the matter, we agree that
Attorney Rostollan should be deemed to have defaulted, we
accept and adopt the referee's findings of fact and
conclusions of law, which are based on the allegations of the
complaint filed by the Office of Lawyer Regulation (OLR). We
agree that Attorney Rostollan's law license should be
suspended for two years and that he should be directed to pay
restitution. We impose the full costs of this proceeding on
Attorney Rostollan, which are $2, 663.71 as of January 30,
Attorney Rostollan was admitted to practice law in Wisconsin
in 1983. He has not previously been disciplined. However,
while this matter was pending, this court granted the
OLR's request and temporarily suspended Attorney
Rostollan's license to practice law for failure to
cooperate in a new and separate disciplinary investigation.
As of the date of this order, his license is suspended.
See Office of Lawyer Regulation v. Daniel J.
Rostollan, No. 2018XX173-D, unpublished order ( S.Ct.
April 9, 2018) .
On September 30, 2016, the OLR filed a complaint against
Attorney Rostollan alleging 21 counts of professional
Attorney Rostollan filed an answer and asserted, inter alia,
that his practice was adversely affected by depression and
family issues. He also stated that he had reimbursed former
client, R.W. Thereafter, however, he failed to respond to
discovery requests and on June 5, 2017, the OLR moved for a
default judgment. On July 11, 2017, the referee advised
Attorney Rostollan that he had seven days to respond to the
default motion. Attorney Rostollan did not respond.
On July 31, 2017, the referee issued an initial report and
recommendation, recommending the court deem Attorney
Rostollan to have defaulted, finding the facts as alleged in
the OLR's complaint as true, and concluding that Attorney
Rostollan had committed the alleged misconduct. The referee
recommended we suspend Attorney Rostollan's license to
practice law for two years and recommended that Attorney
Rostollan be ordered to pay restitution to R.W.
The court identified some factual and procedural issues with
the report and, on November 13, 2017, remanded the matter to
the referee for additional information, with directions to
file a supplemental report.
On remand, Attorney Rostollan indicated he wanted to
participate in this proceeding. The referee conducted a
hearing on December 5, 2017, at which Attorney Rostollan
appeared. The referee afforded him an opportunity to respond
to discovery, but Attorney Rostollan then failed to respond.
Accordingly, the referee filed a supplemental report on
January 10, 2018, including additional information requested
by this court and confirming the previous recommendation.
Neither party has appealed so we consider the amended report
pursuant to SCR 22.17(2).
We review a referee's findings of fact subject to the
clearly erroneous standard. See In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269
Wis.2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the
appropriate level of discipline independent 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.
First, in light of Attorney Rostollan's failure to
consistently appear or participate in this case, we accept
the referee's finding that Attorney Rostollan's
conduct was egregious such that his answer should be stricken
and he should be deemed to have defaulted.
The referee's findings of fact are based on the
allegations in the complaint. They have not been shown to be
clearly erroneous, and we adopt them. We also accept the
conclusions of law that flow from those findings.
The first nine counts of the complaint pertain to Attorney
Rostollan's representation of R.W. In 2012, R.W. retained
Attorney Rostollan to file a Chapter 13 bankruptcy petition
on his behalf and to represent him in certain adversary
There were a number of problems with Attorney Rostollan's
representation of R.W. These included no written fee
agreement or disclosures, mishandling of the bankruptcy
proceeding, mishandling of trust funds, and various
misrepresentations that Attorney Rostollan made to his
client, the court, and the OLR.
On July 23, 2013, Attorney Rostollan filed the requested
Chapter 13 bankruptcy petition in the Eastern District of
Wisconsin. The bankruptcy court dismissed this petition, so
Attorney Rostollan filed a second petition, with documents
required for two related adversary proceedings. He then filed
inaccurate bankruptcy schedules, and electronically affixed
R.W.'s signature to these filings, potentially exposing
R.W. to charges of perjury and endangering the bankruptcy
Attorney Rostollan also informed the bankruptcy court that he
had charged R.W. $4, 000 for the bankruptcy action but later
acknowledged that he had charged R.W. an additional $4, 690
for related adversary actions without disclosing these
additional fees to the bankruptcy court.
The bankruptcy court has established a presumptively
reasonable fee of $4, 000 for Chapter 13 cases. If attorney
fees will exceed the presumptively reasonable amount, the
attorney must disclose the additional fees to the bankruptcy
court. 11 U.S. Code § 329, Rule 2016(b). Additionally,
it is the bankruptcy court's policy that fees in addition
to a presumptively reasonable fee must be approved by the
court under local Rule 20.16.
Meanwhile, R.W. gave Attorney Rostollan a $36, 000 check,
representing life insurance proceeds that Attorney Rostollan
was to hold in trust for R.W. On April 9, 2013, Attorney
Rostollan deposited these funds into his trust account,
yielding a balance of $36, 020.
Over several months, Attorney Rostollan transferred money in
and out of various accounts. On April 10, 2013, Attorney
Rostollan disbursed $4, 281 from his trust account to his
business account, leaving $31, 719 in trust. On June 12,
2013, Attorney Rostollan disbursed $5, 000 to R.W. Between
April and mid-August 2013, Attorney Rostollan transferred
almost all of the remaining funds from his trust account into
his business account. By May 30, 2014, Attorney
Rostollan's trust account balance was $10.
In July 2014, Attorney Rostollan sent R.W. an accounting
stating that only $1, 500 remained from the insurance
proceeds and that some $36, 000 had been expended on debts,
adversary claims, and legal fees. R.W. questioned this
In August 2014, Attorney Rostollan sent R.W. a second
accounting, this time stating that $14, 784 remained in
trust. Meanwhile, on August 15, 2014, Attorney Rostollan
deposited $29, 407.53 belonging to another client, M.Z., into
his trust account. The next day, Attorney Rostollan wrote a
check to R.W. in the amount of $14, 784.24 with a memo line
stating "balance from trust account." At most, $10
of those funds actually belonged to R.W. Attorney Rostollan
failed to disclose his conversion of R.W.'s funds.
The OLR received notice of an overdraft in Attorney
Rostollan's trust account and commenced an investigation.
Attorney Rostollan sent the OLR fabricated and misleading
trust account ledgers that omitted deposit information,
internet transfers, and included non-existent disbursements,
and transactions. Attorney Rostollan also made
misrepresentations to the OLR orally and in writing regarding
the source and use of funds in his trust account. On March 3,
2015, the OLR requested additional information from Attorney
Rostollan. Attorney Rostollan failed to fully and timely
respond. Eventually, this court issued an order directing
Attorney Rostollan to show cause why his license should not
be suspended for non-cooperation. This prompted Attorney
Rostollan to respond, so the OLR withdrew its motion.
Based on the allegations in the complaint, the referee
• By failing to communicate in writing to R.W. the rate
and basis for all of the fees he intended to charge related
to the representation, and also by failing to state in
writing the purpose and effect of any advanced fee payment,
Attorney Rostollan violated SCR 20:1.5(b)(1) and
• By failing to safeguard and hold in trust client
funds, Attorney Rostollan violated SCR
20:1.15(b)(1) (Count 2);
• By converting client funds to his own use or for the
use of other clients, Attorney Rostollan violated SCR