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In re Disciplinary Proceedings Against Clemment

Supreme Court of Wisconsin

June 15, 2018

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

         ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

         DISCIPLINARY PROCEEDINGS AGAINST CLEMMENT

          PER CURIAM.

         ¶1 We review the report of Referee John Nicholas Schweitzer recommending that Attorney Sarah Clemment be declared in default, concluding that Attorney Clemment engaged in professional misconduct, and recommending that she be publicly reprimanded. Attorney Clemment failed to present a defense despite being given the opportunity to do so, and she did not oppose the Office of Lawyer Regulation's (OLR) motion for default. Accordingly, we declare her to be in default. We also conclude that a public reprimand is an appropriate sanction for her misconduct. We further agree with the referee that Attorney Clemment should be required to make restitution in the amount of $5, 000, and the full costs of the proceeding, which are $802.19 as of April 12, 2018, should be assessed against her.

         ¶2 Attorney Clemment was admitted to practice law in Wisconsin in 2000 and practices in Madison. In 2011 she received a consensual public reprimand for failing to provide competent representation to a client, failing to act with reasonable diligence and promptness in representing a client, failing to keep the client reasonably informed about the status of the matter, and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Public Reprimand of Sarah Clemment, No. 2011-6 (electronic copy available at https://compendium.wicourts.gov/app/raw/002365.html).

         ¶3 On October 3, 2017, the OLR filed a complaint against Attorney Clemment alleging six counts of misconduct arising out of her representation of D.H. In November 2015, D.H. had been charged with first-degree murder in Dane County. In January of 2016, D.H. hired Attorney Clemment to represent him. Attorney Clemment had never handled a homicide case and had never tried a case to a jury. D.H.'s sister, B.H., paid Attorney Clemment $5, 000 to represent D.H. Attorney Clemment deposited the $5, 000 into her business account and prepared a written flat fee agreement outlining the scope of the representation.

         ¶4 The circuit court held a preliminary hearing on January 28, 2016, found probable cause, and bound D.H. over for trial. There was DNA and GPS evidence implicating D.H.

         ¶5 Prior to arraignment, Attorney Clemment visited D.H. four times while he was incarcerated at the Dane County jail. D.H. was arraigned on March 8, 2016. Attorney Clemment moved for a speedy trial even though discovery was ongoing. Attorney Clemment subsequently filed requests for discovery, a motion to sequester the jury, and a number of motions in limine seeking to exclude certain evidence, including evidence of prior convictions, DNA evidence, and GPS evidence.

         ¶6 The circuit court held a hearing on Attorney Clemment's motions on May 3, 2016. Attorney Clemment failed to submit any case law or evidence to support her motion to sequester the jury and for that reason the circuit court denied the motion. Attorney Clemment withdrew her motion in limine to exclude evidence of prior convictions after an exchange with the circuit court showed she had misunderstood the appropriate legal standard for the motion.

         ¶7 As to the speedy trial motion, the circuit court noted that Attorney Clemment had not hired an investigator, had not retained any DNA, GPS, or pathology experts, had not filed a witness list that identified any witnesses other than those identified by the state, and had not received additional discovery forthcoming from the state. In addition, D.H. was then serving time for other crimes and thus would not be prejudiced by having a speedy trial request denied. The circuit court continued D.H.'s case and strongly urged Attorney Clemment to associate more experienced trial counsel to assist her in the case.

         ¶8 By this point, Attorney Clemment had visited D.H. four more times, including two visits to the Dodge County Correctional Institution in Waupun. In September of 2016, D.H. was transferred to the Green Bay Correctional Institution. After April 5, 2016, Attorney Clemment made no additional personal visits to D.H. but rather communicated with him by telephone and letter. Attorney Clemment never associated any experienced counsel on the case.

         ¶9 On August 29, 2016, the circuit court held a hearing on Attorney Clemment's motion to suppress DNA evidence. The motion alleged that a search warrant to obtain D.H.'s DNA was not signed by a judge and was thus invalid. Testimony and evidence introduced during the hearing showed that a judge had signed the search warrant and it was legally valid. Moreover, even if D.H.'s motion had been granted, the state would have simply gotten another search warrant to obtain the DNA samples, which would defeat the purpose of the motion. Accordingly, the circuit court denied the motion.

         ¶10 During the August 29, 2016 motion hearing, the circuit court noted that Attorney Clemment had not filed a witness list but had simply reserved the right to call witnesses identified by the state. The circuit court reminded Attorney Clemment that she had no right to call the state's witnesses without specifically referencing each witness on her own list. The circuit court scheduled a hearing on the pending state's motions, and it admonished both parties to be prepared to talk about the evidentiary issues. At that time Attorney Clemment had not filed any non-evidentiary motions.

         ¶11 Another motion hearing took place on September 28, 2016, less than two weeks before the scheduled trial date. At this hearing the state noted that Attorney Clemment had not reviewed any of the physical evidence in the case despite numerous offers by the state to schedule a review of the evidence. Attorney Clemment said she had been ill.

         ¶12 During the September 28, 2016 hearing, the circuit court considered the state's motion in limine regarding a variety of standard pre-trial evidentiary issues, such as exclusion of witnesses, exclusion of evidence not shown, character evidence, other acts evidence, impeachment by prior conviction, and alibi evidence. Attorney Clemment raised no objection to any of the state's individual requests.

         ¶13 At one point, after Attorney Clemment did not object to the exclusion of "golden rule" comments, the circuit court asked her if she knew what the "golden rule" was. Attorney Clemment did not know. The circuit court asked Attorney Clemment if she knew what exclusion of witnesses meant, and she could not adequately answer the question correctly. Attorney Clemment was also unable to answer questions from the circuit court about what "impeachment by prior conviction" meant, and she was unable to recite the specific statutory procedures for addressing when a witness could be impeached based on a prior conviction.

         ¶14 The circuit court asked Attorney Clemment why she did not object to the exclusion of alibi evidence when it appeared that she had planned to introduce evidence at trial showing that D.H. was not at the scene of the crime. Attorney Clemment could not adequately answer the circuit court's questions about the meaning of "effect of arrest and conviction" or "known or unknown third party acts evidence." Attorney Clemment was also unable to explain the difference between testimonial and non-testimonial evidence in the context of the confrontation clause or recall the key United States Supreme Court case discussing these issues.

         ¶15 At this point the circuit court determined that Attorney Clemment was not competent to represent D.H., that she had not acted diligently in representing him, that she had not communicated appropriately with him, and that overall she was not providing effective legal representation to her client. The circuit court noted that Attorney Clemment had not provided all of the police reports to D.H., she had not reviewed all of the physical evidence in the case, she had not hired an investigator to interview any witnesses, she had not hired any experts, and she had ...


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