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In re Disciplinary Proceedings Against White

Supreme Court of Wisconsin

August 23, 2019

In the Matter of Disciplinary Proceedings Against Cole J. White, Attorney at Law:
Cole J. White, Respondent. Office of Lawyer Regulation, Complainant,

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          PER CURIAM.

         ¶1 We review a supplemental referee's report and recommendation concluding that Attorney Cole J. White committed 27 counts of professional misconduct in his handling of four client matters. The referee recommended that this court impose a 15-month suspension of Attorney White's law license. We adopt the referee's findings of fact, conclusions of law, and recommendation regarding discipline. We also agree with the referee's recommendation that Attorney White be required to make restitution to two clients. Finally, we impose the full costs of this proceeding, which total $17, 105.44 as of January 23, 2019, on Attorney White.

         ¶2 Attorney White was admitted to practice law in Wisconsin in 2013 and practices in Green Bay. He has no prior disciplinary history.

         ¶3 On September 26, 2017, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney White alleging 28 counts of professional misconduct. Attorney White filed an answer on November 24, 2017. James R. Erickson was appointed referee on December 12, 2017.

         ¶4 An evidentiary hearing was held on September 12, 2018. Attorney White chose not to appear in person at the hearing. His counsel, Attorney Jevon J. Jaconi, appeared on his behalf. Pursuant to an agreement between Attorney Jaconi and counsel for the OLR, with the approval of the referee, the deposition transcript of Attorney White, including exhibits, was offered and received into evidence. Two of Attorney White's former clients testified in person at the hearing, and two testified telephonically. Testimony was also taken from other witnesses, both in person and telephonically.

         ¶5 The referee issued his initial report and recommendation on January 3, 2019. On April 9, 2019, this court remanded the matter to the referee for further proceedings. The referee issued a supplemental report on June 10, 2019.

         ¶6 In his supplemental report, the referee noted that the parties agreed to dismiss one of the counts in the complaint. The referee further noted that Attorney White stipulated to 17 counts in the complaint. The referee found that the OLR had met its burden of proof with respect to the 10 remaining disputed counts.

         ¶7 The OLR's complaint alleged eight counts of misconduct with respect to Attorney White's representation of S.E. In September 2012, the Neenah Police Department and the Lake Winnebago Area Metropolitan Enforcement Group conducted a raid of S.E.'s business pursuant to a "no-knock" search warrant issued by Winnebago County Circuit Court Judge Scott Woldt, based upon suspicious illegal drug activities. S.E. was charged with several felonies following the raid. In December 2013, he pled no contest to a signal misdemeanor possession charge. All other charges were dropped.

         ¶8 During the criminal proceeding against S.E., S.E.'s attorney brought a motion to suppress evidence on the basis that the warrant was not valid because Judge Woldt was not "neutral and detached" and should have disqualified himself from issuing the warrant. The motion was denied.

         ¶9 In June of 2014, S.E. hired Attorney White to file a federal civil rights lawsuit against the City of Neenah and others as a result of the raid. Attorney White provided S.E. with a fee agreement charging a flat fee of $4, 500 plus a 30 percent contingent fee on any settlement. S.E. was to be responsible for any costs. The fee agreement did not state Attorney White's intention to use the alterative fee placement measures allowed under former SCR 20:1.15(b) (4m) . S.E. paid Attorney White the $4, 500 flat fee in installments. Attorney White did not place any of the money in his trust account.

         ¶10 On December 2, 2014, Attorney White filed a lawsuit in United States District Court for the Eastern District of Wisconsin. The plaintiffs included S.E. and his business, as well as adjoining business owners. The defendants included the City of Neenah, the Neenah Police Department, Judge Woldt, the Neenah Police Chief, a captain of the Neenah Police Department, and Winnebago County. Attorney White's complaint against Judge Woldt was based on the judge's signing of the search warrant, which the plaintiffs asserted was "overly broad and invalid." The complaint also alleged the judge was not neutral because of a prior dispute between him and S.E.

         ¶11 Judge Woldt was represented in the lawsuit by Assistant Attorney General David C. Rice. On December 9, 2014, AAG Rice filed a motion to dismiss on numerous grounds including judicial immunity, Eleventh Amendment immunity, failure to state a claim upon which relief can be granted, issue preclusion, and lack of jurisdiction. Attorney White did not respond to the motion to dismiss, and the court granted it on February 5, 2015. Attorney White told the OLR he did not respond to the motion because he believed it would be granted. Attorney White admitted to the OLR that the complaint he filed was "bloviated and histrionic," but he said he filed it anyway because it was what his client wanted "in terms of sending a message."

         ¶12 Attorney White failed to respond to requests that he provide dates that his clients would be available for a deposition. He also failed to respond to interrogatories and requests for production of documents.

         ¶13 S.E. periodically contacted Attorney White to find out the status of the case. Attorney White would respond by saying that everything was taken care of, things were going well, and he hoped to set up a settlement conference. On November 13, 2015, counsel for the City of Neenah and the Neenah Police Department filed a motion to dismiss based on the plaintiffs' failure to prosecute the action. Attorney White failed to provide his clients with a copy of the motion to dismiss. On November 30, 2015, Attorney White responded to the motion claiming he had moved his office and did not receive deposition notices until the day after they were scheduled to take place because the defendants had mailed the notices to his former office address. Attorney White also claimed he had notified the defendants of his new office address in June 2015 and that the plaintiffs had all the evidence they needed to proceed to trial. Attorney White did not copy his clients with his response to the motion to dismiss. After filing the response, Attorney White mentioned the motion to dismiss in a text message he sent to S.E. that included the statement "we filed a response calling out their game."

         ¶14 On December 1, 2015, counsel for Winnebago County also filed a motion to dismiss due to the plaintiffs' failure to state a claim against the County and the plaintiffs' failure to prosecute the case. On December 14, 2015, counsel for the Neenah Police Department and the City of Neenah filed a reply to Attorney White's response to their motion to dismiss alleging that the response contained flagrant misrepresentations.

         ¶15 On January 2, 2016, Attorney White filed a response to Winnebago County's motion to dismiss that was identical to his response to the City of Neenah's and Neenah Police Department's motion. Attorney White included no supporting affidavits or memorandum, and he did not copy his clients on his response.

         ¶16 On January 20, 2016, the court issued a decision granting the remaining defendants' motions to dismiss and ordering Attorney White to personally pay a sanction of $1, 500 to the defendants. Attorney White failed to inform S.E. and the other plaintiffs of the dismissal order. S.E. learned about the dismissal when reporters asked him for comment.

         ¶17 On January 26, 2016, S.E. wrote to Attorney White directing him to file an appeal. Attorney White falsely informed S.E. that he "never received a goddamned email from them about dates" and that the defendants had filed a motion to dismiss because Attorney White did not timely receive notice of the deposition. Attorney White agreed to file a notice of appeal and said the judge's decision was "filled with so many lies, misstatements and misconstructions it verges on the absurd."

         ¶18 S.E. subsequently hired new counsel. On February 17, 2016, S.E.'s new counsel filed a motion to alter or amend the judgment dismissing the case. The motion was denied, with the court commenting that "the merits of the complaint, which had named a judge, were not particularly strong."

         ¶19 In April 2016, S.E. filed a grievance against Attorney White with the OLR. In Attorney White's response to the grievance, he falsely said that he had had several conversations with S.E. about the depositions and that S.E. had expressed exasperation and annoyance about having to answer questions. Attorney White also falsely stated that he had a telephone conversation with counsel for the defendants telling them the location of the depositions was problematic. Attorney White also falsely told the OLR that he had informed the defendants' counsel of his new address in a telephone call.

         ¶20 Attorney White also provided an email to the OLR, purportedly written on September 14, 2015, in which he requested a call to discuss scheduling depositions. The email was fabricated.

         ¶21 Attorney White has not paid the $1, 500 in costs and attorney's fees as ordered in the court's January 20, 2016 decision.

         ¶22 The OLR's complaint alleged the following counts of misconduct with respect to Attorney White's representation of S.E.:

Count 1: By failing to hold the advanced fees that S.E. paid to him in trust, Attorney White violated former SCR 20:1.15(b)(4), [1]
Count 2: By naming Judge Woldt as a defendant despite his immunity as a judge from civil suits for his judicial acts and the existence of multiple other grounds precluding a civil action against Judge Woldt, Attorney White violated SCR 20:3.1 (a) (1) .[2]
Count 3: By failing to respond to requests from opposing counsel and by failing to otherwise take action to prosecute his clients' case, Attorney White violated SCR 20:1.3.[3]
Count 4: By failing to respond to the defendants' discovery requests, Attorney White violated SCR 20:3.4(d) .[4]
Count 5: By failing to inform S.E. and the other plaintiffs of the defendants' discovery requests, including interrogatories and deposition notices and by failing to inform them of the dismissal of the lawsuit, Attorney White violated SCR 20:1.4(a)(3).[5]
Count 6: In the course of the federal lawsuit filed on behalf of S.E., by making false statements in documents filed with the court, Attorney White violated SCR 20:3.3(a) (1) .[6]
Count 7: By making false statements to his client about the status of the case and the conduct of the opposing parties, Attorney White violated SCR 20:8.4(c) .[7]
Count 8: In the course of the OLR's investigation, by fabricating an email in an effort to show that he had responded to opposing counsel's request to schedule depositions and inform them of his new office address, by falsely asserting that he and/or his intern had telephone conversations with opposing counsel, and telling the OLR "the court records were updated" in response to the OLR's request for evidence that he had informed opposing counsel of his new address, and that he had several conversations with his clients about scheduling depositions, Attorney White violated SCR 22.03(6), [8] enforceable via SCR 20:8.4(h).[9]

         ¶23 The second client matter detailed in the OLR's complaint involved Attorney White's representation of R.R., who hired Attorney White to represent him in modifying a custody and placement order that granted R.R.'s ex-wife sole custody and granted R.R. supervised visits and telephone contact with his daughter. At the time he undertook this representation, Attorney White had little or no experience in custody and placement cases.

         ¶24 On September 23, 2014, Attorney White provided R.R. with a written agreement to represent him "in connection with the alteration of custody and placement order currently in effect with K.K.," which would "include counseling, advocacy and representation in all hearings, motions, mediations and any other proceedings arising in or related to this action." Attorney White charged R.R. a flat fee of $11, 000 and described the fee as being non-refundable. The fee agreement did not state Attorney White's intention to use the alterative fee placement measures allowed under former SCR 20:1.15(b) (4m) . R.R.'s mother and step-father paid the $11, 000 advanced fee to Attorney White. Attorney White did not place the money in his trust account.

         ¶25 On June 26, 2015, Attorney White filed a three-page standard "fill in the blank" motion to modify form available on the court's website. The motion requested that physical placement of R.R.'s daughter be modified from primary placement to shared placement and legal custody be modified to joint legal custody. The factual basis alleged in support of the motion was that the mother regularly withheld visitation and contact and had made baseless criminal allegations against Attorney White's client.

         ¶26 A motion hearing was held before a court commissioner on September 23, 2015. The court commissioner denied the motions since no substantial change had been alleged since the September 26, 2013 custody and placement order; the psychological issues that served as the basis for supervised visitation had not been addressed; and the allegations of interference with visitation were more properly the subject of an enforcement motion.

         ¶27 Despite R.R. providing Attorney White with a substantial amount of documentation about the placement case, including police reports, court records, and other documents, Attorney White did not provide any of those documents to the court commissioner.

         ¶28 Attorney White claimed that after the September 2015 hearing he informed R.R. he would pursue a new application to the court to modify placement, but that R.R. never provided the necessary information. As a result, Attorney White said he considered the case closed. Attorney White had no documentation that he ever explained to R.R. the outcome of the motion, that he requested additional information from R.R. to pursue the matter, or that he considered the matter closed. Attorney White provided no documentation that he earned the entire $11, 000 advanced fee.

         ¶29 Attorney White subsequently led R.R. to believe that the custody matter was ongoing and advised R.R. to claim a Texas residence in order to establish a substantial change in circumstances.

         ¶30 On September 23, 2015, R.R. hired Attorney White to pursue a second matter, a defamation claim against his ex-wife alleging she falsely accused him of molesting their daughter. Attorney White provided R.R. a second fee agreement which provided for a flat fee of $5, 000 that was described as non-refundable. The agreement acknowledged receipt of an initial $200 payment and called for additional payments of $300 on September 24 and $4, 500 by October 9. The second fee ...

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