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In re Disciplinary Proceedings Against Fulkerson

Supreme Court of Wisconsin

April 20, 2018

In the Matter of Disciplinary Proceedings Against Holly Lynn Fulkerson,
Holly Lynn Fulkerson, f/k/a Holly Lynn Strop, Respondent. Attorney at Law: Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

          PER CURIAM.

         ¶1 We review a stipulation pursuant to Supreme Court Rule (SCR) 22.12 between the Office of Lawyer Regulation (OLR) and Attorney Holly Lynn Fulkerson.[1] The stipulation provides that Attorney Fulkerson committed six counts of professional misconduct arising out of the representation of a single client and jointly requests that the court publicly reprimand Attorney Fulkerson for her professional misconduct.

         ¶2 After carefully reviewing the matter, we accept the stipulation and impose the requested public reprimand. We do not require Attorney Fulkerson to pay any restitution, as none was requested by the OLR. Although there was a prior submission of a proposed consensual public reprimand to a referee, this disciplinary proceeding has been resolved by a stipulation under SCR 22.12 without the appointment of a referee. Thus, we do not impose any costs on Attorney Fulkerson.

         ¶3 Attorney Fulkerson was admitted to the practice of law in this state in June 2001. According to the information provided to the State Bar, Attorney Fulkerson has most recently engaged in the private practice of law in Blue Mounds, Wisconsin.

         ¶4 Attorney Fulkerson has been the subject of professional discipline on one prior occasion. In 2015 she consented to the imposition of a private reprimand for failing to act with reasonable diligence, failing to protect a client's interests, failing to keep a client reasonably informed, making a frivolous discovery request or failing to make reasonably diligent efforts to comply with a discovery request, and knowingly disobeying an obligation under the rules of a tribunal. Private Reprimand No. 2015-28 (electronic copy available at 002845.html).

         ¶5 This matter was initially submitted to a referee as a proposed consensual public reprimand under SCR 22.09. At that time the OLR was alleging seven counts of professional misconduct, which Attorney Fulkerson conceded. After reviewing the submission, the referee declined to approve the consensual reprimand. He pointed to the presence of seven counts of misconduct and the existence of the previous private reprimand. He stated that he was particularly concerned with the fact that Attorney Fulkerson had agreed to represent the clients even though she did not have prior experience handling medical malpractice matters and that she appeared not to have adequately sought guidance from other experienced attorneys or educated herself.

         ¶6 Following the refusal of the consensual reprimand, Attorney Fulkerson sent a lengthy letter to the OLR providing additional, highly personal mitigating information. In its memorandum in support of the current SCR 22.12 stipulation, the OLR asserts that Attorney Fulkerson has been "forthright and cooperative" throughout the OLR's investigation and that her letter did not attempt to avoid responsibility for or minimize her conduct. To the contrary, the OLR states that her letter demonstrated that she had understood her misconduct and was making changes in her life that will result in her being a better, more diligent lawyer. The OLR then submitted the matter to the Preliminary Review Committee, which found cause to proceed on six of the seven original counts. The OLR then reconsidered the sanction question, but ultimately determined that, especially in light of the mitigating information provided by Attorney Fulkerson and the totality of the information in the OLR's file, a public reprimand was still the most appropriate level of discipline to seek. The OLR then concluded that rather than submit a second consensual reprimand to a referee under SCR 22.09, it would pursue a SCR 22.12 stipulation with Attorney Fulkerson that would be submitted to this court for a decision.

         ¶7 In the resulting stipulation, Attorney Fulkerson represents that she understands the misconduct allegations against her and her right to contest them, that she admits them, and that she agrees with the OLR's recommended level of discipline. Attorney Fulkerson further states that she understands her right to consult with another attorney regarding these matters, that she understands the ramifications of the stipulated level of discipline, and that she is entering into the stipulation knowingly and voluntarily. The stipulation also states that it was not the product of plea-bargaining.

         ¶8 The counts of misconduct to which Attorney Fulkerson is stipulating arise from her representation of La.G. and Li.G. (collectively, "the G.s"). Li.G's illness and subsequent complications had caused her to spend nearly a year in various hospitals and nursing care facilities. The G.s' health insurance carrier had also denied coverage for approximately $27, 000 in Li.G.'s medical expenses on the ground that certain services had been medically unnecessary. The G.s retained Attorney Fulkerson to pursue coverage for the unpaid medical expenses and to address a potential malpractice claim against certain health-care providers.

         ¶9 Attorney Fulkerson initially sent a letter to the health insurance carrier appealing the denial of coverage for the certain medical expenses. The insurer denied the appeal.

         ¶10 The G.s and Attorney Fulkerson then discussed proceeding with a lawsuit. Attorney Fulkerson agreed to represent the G.s on a contingent fee basis, but she failed to draft a written fee agreement memorializing that fee arrangement.

         ¶11 In November 2012 the G.s gave a check in the amount of $270 to Attorney Fulkerson to cover the filing fee for the anticipated civil action. Attorney Fulkerson (or someone on her behalf) negotiated that check on December 6, 2012, depositing the funds into Attorney Fulkerson's personal account. Attorney Fulkerson has acknowledged to the OLR that the funds should have been held in trust.

         ¶12 At the time she began her representation of the G.s, Attorney Fulkerson had no experience litigating medical malpractice cases. Early in the representation Attorney Fulkerson informed the G.s of her lack of experience in such cases, but told them that she believed that she was familiar with the standards of care required in medical facilities, as she had worked in the health-care field for 15 years. Prior to initiating the civil action, which contained medical malpractice claims, Attorney Fulkerson did not seek guidance concerning the specifics of litigating medical malpractice claims. ...

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