In the Matter of Disciplinary Proceedings Against Thomas D. Vaitys, Attorney at Law:
Thomas D. Vaitys, Respondent. Office of Lawyer Regulation, Complainant,
disciplinary proceeding. Attorney's license revoked.
Pending before the court is a report and recommendation filed
by Referee Richard M. Esenberg. The report recommends that we
accept Attorney Thomas D. Vaitys' petition for consensual
license revocation, order him to pay restitution, and revoke
his license to practice law in Wisconsin. Attorney Vaitys is
the subject of an Office of Lawyer Regulation (OLR)
disciplinary complaint alleging that he committed 19 counts
of professional misconduct in several client matters. He is
also the subject of two pending grievances that have not yet
been fully investigated by the OLR.
We agree that both revocation and restitution are
appropriate, and we agree that Attorney Vaitys shall pay the
costs of this proceeding, which are $4, 703.85 as of July 10,
Attorney Vaitys was admitted to the practice of law in
Wisconsin in 2004. He currently resides in Sonora,
California. He has not previously been subject to
professional discipline. His law license has been suspended,
however, for failure to pay State Bar dues, failure to
provide a required trust account certification, and for
failure to comply with CLE reporting requirements.
On June 28, 2017, the OLR filed a disciplinary complaint
charging Attorney Vaitys with 19 counts of professional
misconduct. Referee Esenberg was appointed on July 24, 2017.
On September 18, 2018, Attorney Vaitys filed a petition for
consensual license revocation pursuant to Supreme Court Rule
Attorney Vaitys states that he cannot successfully defend
himself against the professional misconduct alleged in the
complaint or the pending investigations, and states he will
make appropriate restitution. On September 18, 2018, the OLR
filed a recommendation, supporting Attorney Vaitys'
The referee issued a report on January 8, 2019, recommending
revocation and restitution. No appeal has been filed in this
matter, so our review proceeds pursuant to SCR 22.17(2). We
revoke Attorney Vaitys' Wisconsin law license effective
the date of this order.
The first 12 counts of the OLR's disciplinary complaint
arise from Attorney Vaitys' representation of T.A. T.A.
is an individual with a "wide range of cognitive and
comprehension difficulties, including difficulty reading
and/or understanding written information." In February
2012, T.A. hired Attorney Vaitys and Attorney Thomas
Napierala, a lawyer with another firm, to set aside a
mediation agreement and settlement that T.A. had entered in a
Milwaukee County Circuit Court case involving the estate of
If they succeeded in setting aside the settlement, the two
lawyers would then commence litigation to establish that T.A.
was entitled to inherit the T.J. estate. If not, they
intended to appeal and, perhaps, seek review in this court.
The legal work was to be paid from settlement funds that T.A.
had received from the T.J. estate (the Probate Award). Work
commenced in February of 2012, but no written fee agreement
was signed until November 2012.
The fee agreement limited what the lawyers could charge for
appellate work. It established a $25, 000 "Appellate
Fund" trust account. Fees and costs related to this
appellate work were only to be paid from the Appellate Fund,
not from the remainder of the Probate Award. The balance of
the Probate Award was to be held in Attorney Vaitys'
IOLTA trust account. It was agreed there would be an
accounting of any other work previously performed for T.A.
Other than the anticipated appeals, the fee agreement covered
no other matters or any subsequent work on the T.J. estate
matter. With respect to non-appellate work, the fee agreement
provided that one-third of all fees would be paid to Attorney
Vaitys, and two-thirds would be paid to Attorney Napierala.
Work performed by Attorney Napierala was to be billed to and
the charges approved by Attorney Vaitys.
On November 26, 2012, Attorney Vaitys received a check for
$161, 269.23 representing the settlement funds from the T.J.
estate. Attorney Vaitys deposited the funds in his general
IOLTA trust account. He then transferred $25, 000 to the
Appellate Fund trust account.
Thereafter, Attorney Vaitys failed to keep proper records of
disbursements, commingled funds, improperly withdrew funds
from both the Probate Award in his general IOLTA trust
account and from the Appellate Fund trust account,
misrepresented account balances, converted funds, improperly
billed, made then-prohibited internet banking transactions,
failed to make a proper accounting, and failed to file a
timely reply brief. Essentially, Attorney Vaitys improperly
took a substantial portion of T.A.'s funds and kept T.A.
in the dark about the balance of funds held by Attorney
Vaitys and the charges against them.
Based on the forgoing, the OLR alleged that Attorney
Vaitys' handling of the T.A. matter violated a number of
the rules of professional conduct, as follows:
Count One: By failing, prior to November 12,
2012, to communicate in writing to T.A. the scope of the
representation and the rate and basis of Attorney Vaitys'
fees and expenses, Attorney Vaitys violated SCR 20:1.5(b) (1)
Count Two: By failing to clearly and
accurately communicate with T.A. about the specific amounts
Attorney Vaitys disbursed from T.A.'s funds, the total
amount of fees Attorney Vaitys believed were due and owing,
and the total amount of T.A.'s funds remaining in the
trust accounts, so as to provide T.A. with an accurate
understanding of Attorney Vaitys' handling of his funds
and the total amount of such funds in Attorney Vaitys'
possession, Attorney Vaitys violated SCR 20:1.4(a)
and SCR 20:1.4(a) (4) .
Count Three: By converting T.A.'s funds
to his own use or benefit, Attorney Vaitys violated SCR
Count Four: By charging T.A. $275 per hour
for services that were not reasonably billable to T.A.,
Attorney Vaitys violated SCR 20:1.5(a).
Count Five: By using T.A.'s funds to pay
obligations to other clients or third parties, thereby
failing to safeguard and hold those funds in trust, Attorney
Vaitys violated SCR 20:1.15(b)(1).
Count Six: By failing to take reasonable
steps to ensure that Attorney Napierala's billing
statements were accurate before paying the same from
T.A.'s funds, thereby failing to safeguard and hold those
funds in trust, Attorney Vaitys violated SCR 20:1.15(b) (1) .
Count Seven: By failing to provide T.A. with
accurate, written accountings upon request, Attorney Vaitys
violated former SCR 20:1.15(d) (2) .
Count Eight: By making multiple internet
banking transactions related to either T.A.'s appellate
trust account or his IOLTA trust account, at a time when such
transactions were prohibited, Attorney Vaitys violated former
SCR 20:1.15(e) (4)c.
Count Nine: By failing to timely file
T.A.'s reply brief or to timely file for an extension of
time in which to file the reply brief, Attorney Vaitys
violated SCR 20:1.3.
Count Ten: By holding himself out as trustee
of T.A.'s special needs trust, when no such trust existed
and Attorney Vaitys was not trustee of any trust related to
T.A., Attorney Vaitys violated SCR 20:8.4(c).
Count Eleven: By failing to cooperate in the
OLR's investigation of the grievance, including making
misrepresentations to the OLR during the investigation and by
willfully failing to fully and fairly disclose all facts and
circumstances pertaining to his alleged misconduct after
having been notified by the OLR of the matter, Attorney
Vaitys violated SCR 22.03 (2) and SCR 22.03(6),
enforceable via SCR 20:8.4(h).
Count Twelve: By making misrepresentations
to the OLR during the OLR's initial evaluation of these
grievances, Attorney Vaitys violated SCR 20:8.4(c).
The remaining seven allegations in the complaint relate to
misconduct that the OLR identified in the course of
investigating the T.A. grievance. These include accounting
anomalies affecting other clients, and misrepresentations
that Attorney Vaitys made to the OLR in an effort to hide his
misconduct. The OLR audited Attorney Vaitys' banking
records during the period he represented T.A. and identified
at least seven occasions between February 6, 2013 and
February 12, 2014 when Attorney Vaitys made other internet
banking transfers from the Appellate Fund trust account or
general IOLTA trust account to his business account. These
transactions were prohibited at the time.
During the investigation, Attorney Vaitys represented to the
OLR that billing statements were supported by
contemporaneously created ledgers that he claimed to have
gone over with T.A. on a monthly basis. Attorney Vaitys later
admitted that these statements and ledgers were fabricated to
conceal his misuse of T.A.'s funds.
Attorney Vaitys also misrepresented the terms of the fee
agreement, falsely stating that it provided for up to $43,
000 in fees and costs for appellate work, and falsely
claiming that he obtained ...