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In re Disciplinary Proceedings Against Hammis

Supreme Court of Wisconsin

May 23, 2019

In the Matter of Disciplinary Proceedings Against James Edward Hammis, Attorney at Law:
v.
James Edward Hammis, Respondent-Appellant. Office of Lawyer Regulation, Complainant-Respondent,

          SUBMITTED ON BRIEFS, ORAL ARGUMENT February 14, 2019

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

         DISCIPLINARY PROCEEDINGS AGAINST HAMMIS

          For the respondent-appellant, there was a brief filed by James E. Hammis and Hammis Law Offices, LLC, Stoughton. There was an oral argument by James E. Hammis.

          For the complainant-respondent, there was a brief filed by Jonathan E. Hendrix and Office of Lawyer Regulation, Madison. There was an oral argument by Jonathan E. Hendrix.

          PER CURIAM.

         ¶1 Attorney James Edward Hammis has appealed a report filed by Referee Lisa C. Goldman accepting concessions Attorney Hammis made in a stipulation with the Office of Lawyer Regulation (OLR) that he committed 40 counts of professional misconduct and recommending that his license to practice to law in Wisconsin be revoked. In his appeal, Attorney Hammis primarily challenges the sanction recommendation and asserts that an appropriate sanction would be a suspension of his license to practice law in the range of one year.

         ¶2 Upon careful review of this matter, we uphold all of the referee's findings of fact and conclusions of law. We conclude, however, that the facts of this case do not warrant revocation. Instead, we conclude that a three-year suspension of Attorney Hammis' law license is an appropriate sanction for the misconduct at issue. We also deem it appropriate to impose certain conditions upon the reinstatement of his law license. We also order him to pay $400 in restitution to one former client and, as is our usual custom, we impose the full costs of this proceeding, which are $13, 160.22 as of March 4, 2019 on Attorney Hammis.

         ¶3 Attorney Hammis was admitted to practice law in Wisconsin in 1988. The State Bar of Wisconsin shows that he has a Stoughton address.

         ¶4 In 2011, Attorney Hammis was suspended for four months for ten counts of misconduct involving two clients. The misconduct included practicing law while administratively suspended and failing to cooperate with the OLR's investigation. In re Disciplinary Proceedings Against Hammis, 2011 WI 3, 331 Wis.2d 19, 793 N.W.2d 884. In 2015, Attorney Hammis' license was suspended for 90 days for nine counts of misconduct, including failure to timely report an Ohio misdemeanor conviction to the OLR or the clerk of this court; failing to communicate with an incarcerated client; retaining an advance fee despite taking little or no action in the matter; failing to hold the advance fee in trust; and failing to cooperate with the OLR's investigation. In re Disciplinary Proceedings Against Hammis, 2015 WI 14, 361 Wis.2d 1, 859 N.W.2d 108.

         ¶5 On September 25, 2014, the OLR filed a complaint alleging 46 counts of misconduct against Attorney Hammis. Attorney Hammis filed an answer on January 5, 2015. On August 27, 2015, the OLR filed an amended complaint alleging 49 counts of misconduct. Attorney Hammis filed an answer on January 19, 2016.

         ¶6 On September 29, 2016, the parties filed a stipulation, and Attorney Hammis entered a no contest plea to 40 counts of misconduct. Attorney Hammis agreed that the referee could use the allegations of the amended complaint as an adequate factual basis to support findings of misconduct as to each of the counts to which Attorney Hammis was pleading no contest. The OLR withdrew nine counts of misconduct. Attorney Hammis agreed that the referee's report should recommend that the court order him to make restitution to one client, R.G., in the amount of $400. The parties further agreed that the issue of the appropriate level of discipline to be imposed for Attorney Hammis' misconduct would be addressed on briefs.

         ¶7 On January 6, 2017, the parties filed a stipulation of facts specifying that the referee may use specific allegations in the amended complaint as an adequate factual basis to support findings of misconduct as to each of the misconduct counts to which Attorney Hammis pled no contest. The referee issued her report and recommendation on September 14, 2017.

         ¶8 The counts to which Attorney Hammis pled no contest involved nine separate client matters as well as numerous trust account and other violations.

         G.L.

         ¶9 According to the amended complaint, in 2006 Attorney Hammis represented G.L. in several criminal cases. The representation ended sometime in 2006 or 2007. In early 2008, the Department of Corrections revoked G.L.'s probation and G.L. was resentenced. G.L. hired Attorney Hammis to appeal his post-revocation sentences. In October 2008, Attorney Hammis wrote to G.L. saying he had mailed a copy of the original sentencing transcript to G.L. "a month ago" and the letter had been returned. Actually Attorney Hammis had just obtained a transcript within the prior two weeks and had not mailed anything to G.L. since June 2008. Attorney Hammis did not file a notice of appearance in the case until January 2009. That same month G.L. asked Attorney Hammis for information about the cost of representation but Attorney Hammis never responded.

         ¶10 By virtue of the stipulation, Attorney Hammis pled no contest to the following counts of misconduct with respect to his representation of G.L.:

Count Four: By failing to respond to his client's request for information on the costs of his representation, Attorney Hammis violated SCR 20:1.5(b) (3), [1]
Count Five: By making misrepresentations to his client by letter dated October 31, 2008, Attorney Hammis violated SCR 20:8.4(c).[2]

         B.D.

         ¶11 In 2010, B.D. was employed as a recreation director for the City of Janesville (City). On November 5, 2010, Janesville sent B.D. a "Pre-determination Notice of Discharge." B.D. met with Attorney Hammis regarding her employment and paid him an advance fee of $2, 000. B.D. signed a written fee agreement which allowed Attorney Hammis to deposit the fee into his business account. The agreement required Attorney Hammis to send B.D. a written accounting of his fees at the end of his representation. Attorney Hammis told B.D. he would attend any meetings with the City.

         ¶12 On December 6, 2010, the City terminated B.D.'s employment. That same day, B.D. instructed Attorney Hammis to file a discrimination complaint against the City. Attorney Hammis prepared a complaint but never filed it.

         ¶13 On February 23, 2011, Attorney Hammis believed he ceased representing B.D. He never provided her with an accounting. In March of 2011, B.D. filed a grievance against Attorney Hammis with the OLR. Attorney Hammis failed to respond to numerous OLR requests for a response to the grievance. Attorney Hammis eventually responded to the OLR in July 2011 indicating he had time sheets and phone records for his representation of B.D. The OLR requested Attorney Hammis to provide that information, but Attorney Hammis failed to provide it.

         ¶14 By virtue of the stipulation, Attorney Hammis pled no contest to the following counts regarding his representation of B.D.

Count Six: For failing to account to B.D. for her $2, 000 advance fee deposited into his operating account, as required by the alternative fee placement measures of former SCR 20:1.15(b) (4m), Attorney Hammis violated former SCR 20:1.15(b) (4) .[3]
Counts Eight and Nine: By failing to pursue his client's interest in negotiating considerations in exchange for termination of her employment and by failing at any time from December 6, 2010, to February 23, 2011, to file the discrimination complaint he had prepared for his client, Attorney Hammis violated SCR 20:1.3.[4]
Count Ten: By failing to timely respond to the OLR's request for a written response to B.D.'s grievance, Attorney Hammis violated SCR 22.03 (2), [5] enforced via SCR 20:8.4(h).[6]
Count Eleven: By failing to furnish documents requested by the OLR, which he previously admitted he possessed, Attorney Hammis violated SCR 22.03 (6), [7]enforced via SCR 20:8.4(h).

         S.K.

         ¶15 In 2002, M.K. filed for divorce from S.K. Attorney Hammis agreed to represent S.K. in the matter in June of 2009. In November of 2010, the circuit court found S.K. in contempt and ordered him to spend 45 days in jail, commencing December 1, 2010.

         ¶16 Attorney Hammis moved to withdraw from representing S.K. on January 4, 2011. S.K. filed a grievance with the OLR against Attorney Hammis on June 1, 2011. Attorney Hammis failed to respond to numerous OLR requests for information regarding the grievance. Attorney Hammis finally provided a partial response in September of 2011. He provided additional documents in December of 2011. By virtue of the stipulation, Attorney Hammis pled no contest to the following count of misconduct regarding his representation of S.K.

Count Thirteen: By not timely responding to the OLR's request for a written response to S.K.'s grievance, and then making only a partial and incomplete response that did not include the documents expressly requested and which was not supplemented until approximately four months after the original OLR request, Attorney Hammis violated SCR 22.03(2) and SCR 22.03(6), enforced via SCR 20:8.4(h).

         R.B. and Trust Account Violations

         ¶17 In May 2010, R.B. hired Attorney Hammis to represent him in an automobile accident case. The parties agreed that R.B. would receive the first $4, 800 collected, while Attorney Hammis would advance all expenses and recover anything in excess of $4, 800. Attorney Hammis filed a complaint in the case in June 2010. He subsequently negotiated settlements for R.B. with two insurance companies. One of the companies mailed Attorney Hammis a check in early August 2010 along with a release for R.B.'s signature. Attorney Hammis asked R.B. to lower his share of the settlement to $4, 500. R.B. reluctantly agreed. Attorney Hammis deposited the check in his trust account but never obtained R.B.'s signature on the release or sent a signed release to the insurance company.

         ¶18 On or around August 13, 2010, Attorney Hammis gave R.B. a trust account check for $4, 500. Attorney Hammis failed to send a check to another insurance company for their subrogation interest. By January 27, 2011, the trust account's balance was $1, 000 less than the second insurance company was owed for their subrogation interest. In February 2011, the circuit court dismissed the R.B. case with prejudice because although the parties had reported a settlement, no dismissal order was submitted.

         ¶19 In the summer of 2011, both insurance companies filed grievances with the OLR against Attorney Hammis. Attorney Hammis did not respond to the OLR's initial requests for information about the grievances. He subsequently provided partial responses. In December 2011, Attorney Hammis closed the trust account, which then had a balance of $9.07, having never disbursed the $1, 489.82 due to the subrogated insurance carrier.

         ¶20 On December 14, 2011, the OLR filed a motion requesting an order to show cause with this court due to Attorney Hammis' noncooperation with the OLR's investigation. An order to show cause was issued. On December 30, 2011, Attorney Hammis sent the subrogated insurance carrier a "replacement check" for $1, 489.82 with a cover letter representing that he had previously sent a check on August 13, 2010.

         ¶21 The OLR withdrew its motion for an order to show cause on January 9, 2012. On January 20, 2012, the credit union on which the check was drawn refused to honor the check. The account was closed four days later. In May of 2012, Attorney Hammis sent the subrogated insurance carrier a check dated April 17, 2012, for $1, 489.82 drawn on a business account at a different bank.

         ¶22 In July and August 2013, the OLR wrote and then personally served Attorney Hammis with requests for various documents. Attorney Hammis did not timely respond. In September 2013, the OLR filed another motion requesting an order to show cause. An order to show cause was issued. In November 2013, this court temporarily suspended Attorney Hammis' Wisconsin law license due to his failure to cooperate with the OLR's investigation. Attorney Hammis responded to several of the OLR's requests in December 2013. On December 30, 2013, pursuant to the OLR's request, this court reinstated Attorney Hammis' law license.

         ¶23 On October 7, 2010, Attorney Hammis transferred $15, 000 from his trust account to his wife's checking account, leaving the trust account with a shortfall of $1, 589.50. On December 14, 2010, Attorney Hammis withdrew $45, 000 from the trust account and purchased a cashier's check in that amount. Between July 2010 and December 2011, Attorney Hammis deposited $15, 400 of his or his law firm's funds into the trust account but his client ledgers did not reflect those deposits.

         ¶24 Between July 2010 and February 2011, Attorney Hammis made 56 prohibited Internet or telephone transactions totaling over $250, 000 with his trust account. Attorney Hammis failed to identify the client or matter on deposit slips for 19 deposits totaling over $640, 000 into the trust account between July 2010 and February 2011. Attorney Hammis' client ledgers indicate that he disbursed more funds then he received for four clients, creating negative balances for those clients in the trust account.

         ¶25 By virtue of the stipulation, Attorney Hammis pled no contest to the following counts of misconduct:

Count Fourteen: By converting funds held in trust for a third party to other purposes sometime between August 10, 2010 (the deposit of the insurance settlement check in the R.B. matter) and January 27, 2011 (a date on which the trust account balance was less than the money owed to the subrogated insurance carrier in the R.B. matter), Attorney Hammis violated SCR 20:8.4 (c) .
Count Fifteen: By receiving funds in trust for a third party, the subrogated insurance carrier, and then failing to pay that party for over 20 months, Attorney Hammis violated former SCR 20:1.15(d)(1) through (3).[8]
Count Sixteen: By failing to hold in trust the funds he received for the purpose of paying the subrogation claim of R.B.'s insurer, Attorney Hammis violated SCR 20:1.15(b)(1).[9]
Count Eighteen: By falsely representing to the subrogated insurance carrier that he had sent a check for $1, 489.82 to it on August 13, 2010, Attorney Hammis violated SCR 20:8.4(c).
Count Twenty: By failing to timely answer the OLR's request for a response and his subsequent failure to fully and fairly disclose all the facts and circumstances including those concerning the subrogated insurance carrier's claim, by his wilful failure to fully answer questions, by failing to furnish requested documents, by repeatedly responding to requests for information by referencing nonexistent attachments and by generally failing to provide relevant information, Attorney Hammis violated SCR 22.03(2) and (6), and SCR 20:8.4(h).
Count Twenty-One: By withdrawing $45, 000 from his trust account on December 14, 2010, in order to obtain a cashier's check, Attorney Hammis violated former SCR 20:1.15(e) (4)a.[10]
County Twenty-Two: By engaging from July 2 010 through February 2011 in 56 prohibited Internet and telephone transactions with a combined dollar value of $259, 281.22 to and from his trust account, Attorney Hammis violated former SCR 20:1.15(e)(4)b. and c.[11]
Count Twenty-Three: By failing to identify the client or matter on every deposit slip for all of the 19 deposits totaling $640, 745.79 made to the trust account between July 9, 2010, and February 24, 2011, Attorney Hammis violated former SCR 20:1.15(f) (1)d.[12]
Count Twenty-Four: By converting funds held in trust for clients to other purposes sometime between July 21, 2010, and December 9, 2011, Attorney Hammis violated SCR 20:8.4(c).
Count Twenty-Six: By depositing at least $15, 400 of lawyer or law firm funds into the trust account between July 2, 2010, and February 24, 2011, which funds far exceeded any amounts reasonably necessary to pay monthly account service charges, and none of which was allocated to any client or matter for which funds were held in trust, Attorney Hammis violated former SCR 20:1.15(b) (3) .[13]
Count Twenty-Seven: By disbursing funds from the trust account on at least four occasions that resulted in negative balances on the individual client ledgers recording funds held in trust with respect to four different clients or matters, Attorney Hammis violated former SCR 20:1.15(f) (1)b.[14]

         M.V.

         ¶26 On May 28, 2010, M.V. hired Attorney Hammis to represent her in her role as the personal representative of an estate. M.V. paid Attorney Hammis $2, 000 in advanced fees and signed a written fee agreement. The fee agreement did not authorize Attorney Hammis to use the estate's funds to pay his billings without court approval.

         ¶27 On August 30, 2010, a Dane County Circuit Court judge named R.B. as special administrator of the estate. On October 4, 2010, Attorney Hammis deposited $150, 000 of estate funds into his trust account. On October 5, 2010, Attorney Hammis transferred $1, 000 of estate funds out of his trust account for legal fees. On October 8, 2010, Attorney Hammis sent the special administrator's attorney a check for $145, 000 representing the estate's funds. An invoice for Attorney Hammis' representation of M.V. dated February 28, 2011, indicated that Attorney Hammis used the $5, 000 as a "reserve fee." Attorney Hammis' client ledger indicates that on February 28, 2011, he transferred the remaining $4, 000 of estate funds out of his trust account.

         ¶28 M.V. died on November 16, 2011. On December 7, 2011, D.E. was appointed as special administrator of M.V.'s estate. D.E. hired Attorney Michael Rumpf to represent her. On December 7, 2011, Attorney Rumpf wrote to Attorney Hammis requesting, among other things, that he transfer to Attorney Rumpf any estate funds held in trust, and provide an accounting of those funds. On December 22, 2011, Attorney Hammis transferred his M.V. file to Attorney Rumpf and signed an ...


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