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In re Disciplinary Proceedings Against Harman

Supreme Court of Wisconsin

December 18, 2019

In the Matter of Disciplinary Proceedings Against Donald J. Harman, Attorney at Law:
Donald J. Harman, Respondent-Appellant. Office of Lawyer Regulation, Complainant-Respondent,


         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          For the respondent-appellant, there was a brief filed by Donald J. Harman, La Crosse, WI.

          For the complainant-respondent, there was a brief filed by Matthew F. Anich and Dallenbach Anich & Wickman SC, Ashland.

          PER CURIAM.

         ¶1 Attorney Donald J. Harman has appealed a report and recommendation filed by Referee Allan E. Beatty, concluding that Attorney Harman committed three counts of professional misconduct and recommending that his license to practice law in Wisconsin be suspended for six months. Rather than challenging the referee's findings of fact or conclusions of law, Attorney Harman argues on appeal that the referee should have recused himself. Attorney Harman did not request a substitution of the referee pursuant to SCR 22.13(4). When he subsequently raised the issue of the referee's participation, he refused to participate in a scheduled telephone conference at which the recusal issue would have been addressed. Based on these facts, we find that Attorney Harman waived his objection to the referee's participation in this matter.

         ¶2 Upon careful review of this matter, we uphold the referee's findings of fact and conclusions of law, and we agree that a six-month suspension of Attorney Harman's Wisconsin law license is an appropriate sanction for the misconduct at issue. We further agree with the referee that, as a condition of the reinstatement of his license, Attorney Harmon should be required to satisfy a judgment entered against him. We also find it appropriate to follow our usual custom of imposing the full costs of this proceeding, which are $7, 662.28 as of May 13, 2019, on Attorney Harman.

         ¶3 Attorney Harman was admitted to practice law in Wisconsin in 1960. He has been disciplined on four prior occasions. In 1987 he was publicly reprimanded for having charged one client an excessive fee and for failing to turn over another client's files upon termination of representation, notwithstanding a court order to do so. In re Disciplinary Proceedings Against Harman, 137 Wis.2d 148, 403 N.W.2d 459 (1987). In 1989 he received a consensual public reprimand for having acted in the presence of a conflict of interest, failing to maintain complete trust account records and render proper accounting of funds held in trust, and failing to cooperate. Public Reprimand of Donald J. Harman, April 26, 1989. In 1998 he received another public reprimand for failing to act promptly in his client's matter and failing to notify the client of a significant procedural development. In re Disciplinary Proceedings Against Harman, 221 Wis.2d 238, 584 N.W.2d 537 (1998). In 2001, Attorney Harman's license was suspended for six months for eight counts of misconduct that included trust account violations, dishonesty, presence of a conflict of interest without obtaining written consent, failing to keep client confidences, knowingly disobeying the rules of a tribunal, and on two separate occasions using information obtained during the representation of a former client to that former client's disadvantage. In re Disciplinary Proceedings Against Harman, 2001 WI 71, 244 Wis.2d 438, 628 N.W.2d 351 (2001).

         ¶4 On July 6, 2018, the Office of Lawyer Regulation (OLR) filed a complaint alleging three counts of misconduct with respect to Attorney Harman's representation of W.Z. in a divorce proceeding in LaCrosse County. Attorney Harman represented W.Z. from February 11, 2016 until April 3, 2017. He did not charge W.Z. for his representation. The petitioner in the divorce action, R.Z., was represented by Attorney Rochelle Jones of Legal Action of Wisconsin, Inc.

         ¶5 On September 11, 2015, a domestic abuse injunction was entered against W.Z. On February 11, 2016, LaCrosse County Family Court Commissioner (FCC) Elizabeth A. Wright issued a temporary order in the divorce requiring the parties to file joint federal and state income tax returns with the tax refunds to be equally divided after being processed through Attorney Jones' trust account.

         ¶6 On April 20, 2016, with no motion or order to show cause pending, Attorney Harman sent an unsolicited letter to FCC Wright asking her to "dismiss the injunction sua sponte and vacate the order awarding custody of the two children to [R.Z.]." The letter informed the family court commissioner that Attorney Harman and his client "are also asking that the police investigate [R.Z.'s] lies" and said if police were satisfied that R.Z. did lie, she should be charged with obstruction.

         ¶7 Attorney Harman's April 20, 2016 letter to FCC Wright enclosed a "claim of [W.Z.'s]," apparently provided in an attempt to satisfy the requirements of Wis.Stat. § 893.80. The "claim" alleged that W.Z. had been damaged through the negligence of an officer of the LaCrosse Police Department, the office of the LaCrosse County District Attorney, the office of the Wisconsin State Public Defender, and Legal Action of Wisconsin, Inc., acting through Attorney Jones. The claim sought damages of $550, 000.

         ¶8 On April 25, 2016, Attorney Harman sent an additional unsolicited letter to FCC Wright, with various enclosures, including medical records of W.Z. and purported "transcripts" of conversations between W.Z. and his wife. Attorney Harman's letter stated:

I challenge [R.Z.] or [the assistant district attorney] or [an attorney with the Office of the State Public Defender] to show me where in the medical records of [W.Z.] any opinion of any doctor that [W.Z.] has a mental illness and/or that a doctor prescribed medication for his mental illness.

         ¶9 On April 25, 2016, Attorney Jones sent Attorney Harman a letter enclosing the Z.'s state income tax refund check in the amount of $871, as well as the Z.'s federal income tax refund check in the amount of $8, 803, with a request that Attorney Harman have his client endorse both checks and return them to Attorney Jones' office so she could deposit them in her client trust account and distribute the funds, pursuant to the February 11, 2016 temporary order in the divorce.

         ¶10 On May 2, 2016, Attorney Harman sent another unsolicited letter to FCC Wright to "present information to you about [R.Z.'s] untruthfulness." Among other things, the letter said, "[R.Z.] should have her child visits supervised so as to try and insulate her children from a mother who has no moral compass and whose life is driven by sex, greed and a desire to dominate others." None of Attorney Harman's letters to FCC Wright constituted motions for relief and the letters failed to conform to basic requirements of Wisconsin civil procedure rules.

         ¶11 On May 16, 2016, Attorney Harman filed a motion on W.Z.'s behalf in the divorce action seeking dismissal of the domestic abuse injunction which had been entered in a separate case. On June 17, 2016, Attorney Harman sent yet another letter to FCC Wright along with a purported "transcript" of a conversation between W.Z. and his daughter with an employee of "The Parenting Place." The June 17, 2016 letter concluded, "I have reported three instances of [R.Z.'s] inappropriate behavior. As a result I am asking the Family Court Commissioner what corrective action she would recommend be taken with respect to [R.Z.]."

         ¶12 On June 27, 2016, Attorney Jones filed a notice of motion and motion for remedial contempt and a supporting affidavit in the divorce action relating to W.Z.'s failure to endorse and return the tax refund checks as required under the terms of the February 11, 2016 temporary order. At the same time, Attorney Jones filed a response opposing Attorney Harman's motion, request for dismissal of motion and request for costs. Attorney Jones requested sanctions against Attorney Harman as well as costs associated with defending the action.

         ¶13 On July 6, 2016, Attorney Harman filed a counterclaim for annulment on W.Z.'s behalf in the Z. divorce. The grounds asserted for an annulment in the counterclaim were frivolous.

         ¶14 On August 9, 2016, Attorney Harman sent another letter to FCC Wright, this time including letters to a clinical therapist, a nurse practitioner, a generalized response from the therapist, and a printout defining mental illness.

         ¶15 On August 18, 2016, FCC Wright issued an order denying W.Z.'s motion seeking relief from the domestic abuse injunction, finding the motion unwarranted under the law and frivolous. The order also denied W.Z.'s motion to dismiss the temporary order that had been entered on February 11, 2016. The order stated the family court commissioner did not have authority to enter a judgment of annulment, and the FCC declined to enter a ruling regarding W.Z.'s counterclaim for an annulment that had been filed on July 6, 2016. The order denied W.Z.'s motion requesting the imposition of sanctions against Attorney Jones, finding the motion not in accordance with the law and frivolous. The order also found W.Z. and Attorney Harman in contempt of the February 11, 2016 temporary order relating to the parties' income tax refunds and found that W.Z. had willfully withheld the refund checks. The FCC deferred a ruling as to the amount of R.Z.'s award of fees, costs, and sanctions pending her attorney filing a petition for fees with a supporting affidavit.

         ¶16 Attorney Harman sent a letter dated August 9, 2016 to FCC Wright saying, "please consider the following factual material in making your decision about dismissing the Domestic Abuse Injunction now in force against [W.Z.] that allows one half hour of visitation with his children one week, and two visits every other week."

         ¶17 On August 10, 2016, W.Z. purged the contempt by endorsing the federal and state income tax refund checks and providing them to Attorney Jones.

         ¶18 On August 19, 2016, Attorney Harman filed requests for de novo hearings in the Z. divorce along with a request for substitution of LaCrosse County Circuit Court Judge Levine. The substitution request was untimely and was denied.

         ¶19 On August 24, 2016, Judge Levine issued an order dismissing W.Z.'s motions for de novo hearings due to his failure to appear. The order noted that W.Z.'s de novo motion regarding the domestic abuse injunction case was untimely. The order also stated that upon receipt of affidavits in support of an award for fees, costs, and sanctions, W.Z. would have 10 days to object to the amount of fees requested by ...

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