OLR v. Ty Christopher Willihnganz , 373 Wis. 2d 44 ( 2017 )

2017 WI 4
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2676-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Ty Christopher Willihnganz, Attorney at
Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Ty Christopher Willihnganz,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST WILLIHNGANZ
OPINION FILED: January 31, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 4
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2676-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Ty Christopher Willihnganz,
Attorney at Law:
Office of Lawyer Regulation,
FILED
Complainant, JAN 31, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Ty Christopher Willihnganz,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review the report of Referee
Robert E. Kinney who concluded that Attorney Ty Christopher
Willihnganz's professional misconduct warrants a public
reprimand and recommends that we require him to pay the full
costs of this disciplinary proceeding.
¶2 No appeal has been filed from the referee's report and
recommendation so we review the matter pursuant to Supreme Court
No. 2015AP2676-D
Rule (SCR) 22.17(2).1 After considering the referee's report,
the parties' stipulation, and the record in this matter, we
agree that Attorney Willihnganz engaged in some, but not all, of
the acts of professional misconduct alleged in the Office of
Lawyer Regulation's (OLR) complaint. We agree that a public
reprimand is appropriate and we require Attorney Willihnganz to
pay the full costs of this proceeding, which were $5,028.97 as
of October 6, 2016.
¶3 Attorney Willihnganz was admitted to practice law in
Wisconsin on April 11, 1996. In 2001, his license was
administratively suspended for failure to comply with continuing
legal education (CLE) requirements. In 2004, he received a
public reprimand for failing to abide by a client's decision
concerning the objectives of representation and failing to
consult with the client in violation of SCR 20:1.2(a),2 and for
1
SCR 22.17(2) provides:
If no appeal is filed timely, the supreme court shall
review the referee's report; adopt, reject or modify
the referee's findings and conclusions or remand the
matter to the referee for additional findings; and
determine and impose appropriate discipline. The
court, on its own motion, may order the parties to
file briefs in the matter.
2
SCR 20:1.2(a) provides:
Subject to pars. (c) and (d), a lawyer shall abide by
a client's decisions concerning the objectives of
representation and, as required by SCR 20:1.4, shall
consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on
behalf of the client as is impliedly authorized to
carry out the representation. A lawyer shall abide by
(continued)
2
No. 2015AP2676-D
failure to cooperate with the OLR's investigation into the
matter. In re Disciplinary Proceedings Against Willihnganz,
2004 WI 31, 270 Wis. 2d 229, 676 N.W.2d 473. His law license
was reinstated in June 2007. In 2008, this court imposed a
private reprimand on Attorney Willihnganz for practicing law
during the administrative suspension for non-compliance with CLE
requirements. In re Disciplinary Proceedings Against
Willihnganz, No. 2008AP180, unpublished order (S. Ct. July 28,
2008).
¶4 This proceeding arises from Attorney Willihnganz's
professional involvement with a Green Bay businessman and family
friend, R.V.
¶5 In approximately 2010, Attorney Willihnganz, who had
taken a break from the practice of law to pursue other career
interests, returned to Green Bay and the practice of law. He
negotiated an agreement with R.V., whereby R.V. agreed to
provide Attorney Willihnganz with office space for his legal
practice and to pay his State Bar of Wisconsin bar dues and CLE
expenses in exchange for Attorney Willihnganz providing certain
legal services to R.V. and his new energy startup, Green Box.
a client's decision whether to settle a matter. In a
criminal case or any proceeding that could result in
deprivation of liberty, the lawyer shall abide by the
client's decision, after consultation with the lawyer,
as to a plea to be entered, whether to waive jury
trial and whether the client will testify.
3
No. 2015AP2676-D
¶6 The working arrangement proved stressful and Attorney
Willihnganz described it as a "pretty desperate time" when, in
March of 2013, an individual who had invested $600,000 in Green
Box filed a lawsuit in Brown County circuit court against R.V.
and Green Box, alleging that his investment was obtained by
fraudulent misrepresentation. Attorney Willihnganz's brief
representation of R.V. and Green Box during his administrative
license suspension gave rise to this disciplinary proceeding.
¶7 On December 30, 2015, the OLR filed a formal
disciplinary complaint against Attorney Willihnganz seeking a
60-day suspension of his license to practice law. First, it
alleged that Attorney Willihnganz violated SCR 20:1.16(d)3 by
failing to take steps to protect the interests of R.V. and Green
Box upon the termination of his representation of them. Second,
it alleged that Attorney Willihnganz violated SCR 22.26(1)(c)4 by
3
SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to
protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
4
SCR 22.26(1)(c) provides:
On or before the effective date of license suspension
or revocation, an attorney whose license is suspended
or revoked shall do all of the following . . ..
Promptly provide written notification to the court or
(continued)
4
No. 2015AP2676-D
failing to promptly provide written notification to the court
and opposing counsel of a June 4, 2013, law license suspension.
Third, it alleged that Attorney Willihnganz violated
SCR 31.10(1)5 and 22.26(2)6 by practicing law after his law
administrative agency and the attorney for each party
in a matter pending before a court or administrative
agency of the suspension or revocation and of the
attorney's consequent inability to act as an attorney
following the effective date of the suspension or
revocation. The notice shall identify the successor
attorney of the attorney's client or, if there is none
at the time notice is given, shall state the client's
place of residence.
5
SCR 31.10(1) provides:
If a lawyer fails to comply with the attendance
requirement of SCR 31.02, fails to comply with the
reporting requirement of SCR 31.03(1), or fails to pay
the late fee under SCR 31.03(2), the board shall serve
a notice of noncompliance on the lawyer. This notice
shall advise the lawyer that the lawyer’s state bar
membership shall be automatically suspended for
failing to file evidence of compliance or to pay the
late fee within 60 days after service of the notice.
The board shall certify the names of all lawyers so
suspended under this rule to the clerk of the supreme
court, all supreme court justices, all court of
appeals and circuit court judges, all circuit court
commissioners appointed under SCR 75.02(1) in this
state, all circuit court clerks, all juvenile court
clerks, all registers in probate, the executive
director of the state bar of Wisconsin, the Wisconsin
State Public Defender’s Office, and the clerks of the
federal district courts in Wisconsin. A lawyer shall
not engage in the practice of law in Wisconsin while
his or her state bar membership is suspended under
this rule.
6
SCR 22.26(2) provides:
An attorney whose license to practice law is suspended
or revoked or who is suspended from the practice of
(continued)
5
No. 2015AP2676-D
license was suspended. Fourth and finally, it alleged that
Attorney Willihnganz violated SCR 20:8.4(c)7 by giving false
testimony in a deposition.
¶8 The Honorable Robert E. Kinney was appointed as
referee. The OLR filed a motion for summary judgment. At a
July 2016 telephonic hearing on the OLR's motion, Attorney
Willihnganz admitted to count one of the complaint. The parties
indicated that a comprehensive stipulation of facts would
follow.
¶9 Referee Kinney accepted Attorney Willihnganz's
admission to count one of the complaint, found that the
complaint alleged sufficient facts to support the misconduct
charge, and concluded that Attorney Willihnganz committed the
misconduct alleged in count one. The parties reserved the right
to argue whether the stipulated facts substantiated the
remaining allegations of misconduct and the appropriate
sanction.
¶10 The referee conducted a hearing on August 15, 2016.
At the hearing, the parties submitted a comprehensive
law may not engage in this state in the practice of
law or in any law work activity customarily done by
law students, law clerks, or other paralegal
personnel, except that the attorney may engage in law
related work in this state for a commercial employer
itself not engaged in the practice of law.
7
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
6
No. 2015AP2676-D
stipulation of facts, whereby Attorney Willihnganz reiterated
his admission to the misconduct alleged in count one of the
complaint and agreed that the referee could use the stipulated
facts to determine whether Attorney Willihnganz committed the
misconduct alleged in counts two through four of the complaint.
Attorney Willihnganz testified at the evidentiary hearing.
¶11 The parties' stipulation and the testimony from the
evidentiary hearing focused on events between March 2013 and
January 2014.
¶12 In March 2013, M.A. filed a complaint in Brown County
circuit court against R.V. and Green Box alleging that R.V. used
misrepresentations and false promises to induce M.A. to invest
$600,000 in Green Box. Attorney Willihnganz filed an Answer on
behalf of the defendants. Discovery commenced.
¶13 On June 4, 2013, Attorney Willihnganz's law license
was administratively suspended for failure to comply with 2011-
2012 CLE requirements. Attorney Willihnganz told R.V. about the
suspension and urged him to retain new counsel, but did not
promptly provide formal written notification to the court or to
opposing counsel.
¶14 In a June 5, 2013, letter to opposing counsel,
Attorney Willihnganz sent some undated discovery answers,
stating: "Attached are the answers to Plaintiffs First Set of
Interrogatories. I will provide you with a signed version as
soon as [R.V.] returns to town."
¶15 In a June 27, 2013 letter, opposing counsel responded,
informing Attorney Willihnganz that the defendants' discovery
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No. 2015AP2676-D
responses were deficient and reminding him that defendants had
failed to respond to a document request. A July 12, 2013,
letter from opposing counsel reiterated these issues.
¶16 Attorney Willihnganz did not inform R.V. of this
correspondence. A motion to compel ensued; Attorney Willihnganz
received notice of a September 20, 2013 scheduling conference.
¶17 On August 13, 2013, Attorney Willihnganz filed a
motion to withdraw as counsel. A hearing on the withdrawal
motion was scheduled for September 30, 2013.
¶18 On September 20, 2013, Attorney Willihnganz appeared
on behalf of R.V. and Green Box for the telephonic scheduling
conference on the scheduling conference. During the conference,
Attorney Willihnganz stated that he was not intending to
withdraw his motion, and the scheduling conference proceeded.
Attorney Willihnganz did not inform the court, the clerk, or
opposing counsel that his license was administratively
suspended.
¶19 On September 30, 2013, opposing counsel appeared at
the scheduled hearing on Attorney Willihnganz's motion to
withdraw as counsel. Attorney Willihnganz did not appear.
¶20 On October 4, 2013, the circuit court granted the
plaintiff's motion to compel and ordered R.V. and Green Box to
produce the requested documents and to serve responses to the
Interrogatories on or before November 1, 2013.
¶21 On or about November 1, 2013, another administrative
suspension was imposed on Attorney Willihnganz's law license for
failure to pay State Bar of Wisconsin dues and failure to
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No. 2015AP2676-D
certify compliance with trust account recordkeeping
requirements.
¶22 On November 5, 2013, with discovery still not
forthcoming, plaintiff's counsel moved to strike the defendants'
answer and sought a default judgment.
¶23 On January 2, 2014, a new lawyer filed a notice of
appearance on behalf of Green Box. On January 21, 2014, another
attorney filed a notice of appearance on behalf of R.V.
¶24 In a January 22, 2014 deposition in the Green Box
litigation, Attorney Willihnganz was asked the following
questions and gave the following answers:
Q. Did you tell him ([R.V.]) why it was you
participated in the scheduling conference when you
didn't have a license to practice law?
A. Yes, I just said, you know, I felt uncomfortable
about it; but since I took the call, I just went
through with it.
Q. So did you tell him even though you did that you
can't represent him, he needs to get some other
lawyer?
A. I don't remember if I specifically said that.
Again, I thought it was understood that since I did
not have a license I was not the lawyer.
. . .
Q. I looked you up on the State Bar of Wisconsin
website, and it indicated that you're currently
suspended?
A. That is correct.
Q. And if I recall correctly, you have been subjected
to discipline by the Supreme Court on at least one
occasion?
9
No. 2015AP2676-D
A. Yes.
Q. And when was that?
A. That was 2004, I believe.
¶25 After testifying to the facts of his 2004 discipline,
Attorney Willihnganz was asked the following question and gave
the following answer:
Q. Is that the only time you have been disciplined by
the Supreme Court?
A. Yes.
Attorney Willihnganz did not disclose his 2008 private
reprimand.
¶26 R.V. maintained that "neither he nor Green Box knew,
or had reason to know, that Attorney Ty Willihnganz was failing
to properly manage the case, failing to respond to the
Plaintiff's communications and failing to comply with the orders
of this court."
¶27 In his accompanying affidavit, R.V. stated:
In or around June 2013, Attorney Willihnganz informed
me that his license was suspended due to his failure
to complete continuing education classes and pay state
bar dues. I was informed that Attorney Willihnganz
was working towards having his license reinstated.
¶28 R.V. also stated:
Following the filing of the Motion to Withdraw, I did
not receive any mail from either the plaintiffs
counsel or the court. At the time of Attorney
Willihnganz's withdrawal, I also did not receive any
documents from him that were provided to him from
plaintiff's counsel regarding the discovery issues.
¶29 Attorney Willihnganz complied with his CLE
requirements in April 2014; his law license remained suspended
10
No. 2015AP2676-D
until June, 2014, when he resolved all remaining administrative
obligations and his law license was reinstated.
¶30 On October 23, 2014, nine months after successor
counsel replaced Attorney Willihnganz, the circuit court granted
plaintiff's motion for default judgment against R.V. and Green
Box and entered judgment against them in the amount of
$813,735.34. The defendants appealed but the court of appeals
affirmed, noting that after retaining replacement counsel, the
defendants did not attempt to rectify the discovery violation
for almost eleven months. The court remanded the case,
directing the circuit court to amend the judgment to require the
plaintiff to transfer his membership units back to Green Box
upon payment of the judgment.
¶31 In its decision, the court of appeals stated:
At his deposition, Willihnganz testified that, around
the time of his motion, he strongly advised [R.V.] and
Green Box to obtain new counsel. Nonetheless, because
he expected to be reinstated, he participated in a
scheduling conference on September 20, 2013. After the
scheduling conference, Willihnganz failed to open his
mail, did not respond to telephone calls, and did not
provide any additional discovery to [plaintiff's
counsel].
Araujo v. Van Den Heuvel, No. 2014AP2846-FT unpublished slip
op., ¶3 (Wis. Ct. App. Aug. 25, 2015).
¶32 The referee rendered his report and recommendation in
this disciplinary proceeding on September 20, 2016. The referee
had already accepted Attorney Willihnganz's admission to the
misconduct alleged in count one of the OLR complaint so the
11
No. 2015AP2676-D
report focused on the remaining allegations and the appropriate
sanction.
¶33 The complaint alleged that Attorney Willihnganz failed
to promptly provide written notification to the court and
opposing counsel of his law license suspension, in violation of
SCR 22.26(1)(c). An attorney who fails to abide by mandatory
continuing legal education requirements may be suspended. See
SCR 31.01(1). Supreme Court Rule 22.26(1) provides that an
attorney whose license is suspended shall - on or before the
effective date of license suspension - do a number of things,
including, as pertinent here, promptly providing:
[W]ritten notification to the court or administrative
agency and the attorney for each party in a matter
pending before a court or administrative agency of the
suspension or revocation and of the attorney's
consequent inability to act as an attorney following
the effective date of the suspension or revocation.
The notice shall identify the successor attorney of
the attorney's client or, if there is none at the time
notice is given, shall state the client's place of
residence.
SCR 22.26(1)(c).
¶34 It is undisputed that Attorney Willihnganz's law
license was administratively suspended on June 4, 2013, and that
he filed a motion to withdraw as counsel on August 13, 2013.
¶35 Attorney Willihnganz testified that he thought he had
a "reasonable amount of time" before he provided notice of his
license suspension. The referee observed that "even under the
most liberal interpretation" of the rule, Attorney Willihnganz's
delay in this matter was unreasonable. Moreover, the referee
12
No. 2015AP2676-D
noted that "the record is devoid of any evidence that [Attorney
Willihnganz] furnished notice of his suspension in the manner
contemplated by the rule." The referee thus concluded that by
failing to promptly provide written notification to the court
and opposing counsel of his June 4, 2013, law license suspension
and his consequent inability to act as an attorney after June 4,
2013, Attorney Willihnganz violated SCR 22.26(1)(c) as alleged
in count two of the OLR complaint.
¶36 The referee next considered whether Attorney
Willihnganz practiced law after his license had been suspended
in violation of SCRs 31.10(1) and 22.26(2). Specifically, as
alleged in the complaint and as stipulated by the parties,
Attorney Willihnganz sent a letter and answers to
interrogatories to opposing counsel on June 5, 2013, one day
after his administrative license suspension, and he appeared on
his clients' behalf at a September 20, 2013 telephone scheduling
conference, during that suspension.
¶37 Attorney Willihnganz argued that he qualified for a
narrow exception to the prohibition against a suspended lawyer
practicing law, on the theory that he was engaged in law related
work for a commercial employer itself not engaged in the
practice of law, namely Green Box. Supreme Court Rule 22.26(2)
provides:
An attorney whose license to practice law is suspended
or revoked or who is suspended from the practice of
law may not engage in this state in the practice of
law or in any law work activity customarily done by
law students, law clerks, or other paralegal
personnel, except that the attorney may engage in law
13
No. 2015AP2676-D
related work in this state for a commercial employer
itself not engaged in the practice of law.
(Emphasis added). See also In re Disciplinary Proceedings
Against Hyndman, 2002 WI 6, 249 Wis. 2d 650, 638 N.W.2d 293.
¶38 The referee was not persuaded. The referee
specifically found that Attorney Willihnganz was not an employee
of Green Box. The referee thus rejected Attorney Willihnganz's
contention that his work for Green Box fell within the exception
to SCR 22.26(2).
¶39 The referee also rejected Attorney Willihnganz's
effort to characterize his actions as permissible because they
were "purely administrative." For example, Attorney Willihnganz
claimed he had drafted the discovery responses before his
suspension and merely mailed them after the suspension and noted
that lay persons sometimes attend scheduling conferences.
¶40 The referee rejected these arguments. He noted that
SCR 22.26(2) broadly encompasses "any law work activity
customarily done by law students, law clerks, or other paralegal
personnel" and concluded that it was impermissible for Attorney
Willihnganz to send the discovery responses or participate in
the scheduling conference while suspended. Accordingly, the
referee concluded that Attorney Willihnganz practiced law after
his privilege to do so had been suspended, thereby violating
SCRs 31.10(1) and 22.26(2).
¶41 The referee next considered whether Attorney
Willihnganz violated SCR 20:8.4(c) by giving false testimony at
his January 22, 2014, deposition. Specifically, when asked
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No. 2015AP2676-D
about his professional disciplinary history, Attorney
Willihnganz did not affirmatively disclose having received a
private reprimand in 2008.
¶42 At the evidentiary hearing, Attorney Willihnganz
testified that he was nervous during the deposition and he just
"forgot" about the private reprimand. He said he had nothing to
gain by not disclosing it, noting he had disclosed the public
reprimand which he considered more serious. The OLR argued this
was "just not credible."
¶43 The referee stated, "I frankly do not know, based on
this record, whether [Attorney Willihnganz] remembered or forgot
that he had been privately reprimanded." At the hearing and in
his report, the referee raised questions about the scope of a
lawyer's obligation to affirmatively disclose a private
reprimand. Ultimately, the referee recommended the court
dismiss count four of the complaint.
¶44 Supreme Court Rule 22.17(1) provides that within 20
days after the filing of the referee's report, the director or
the respondent may file with the supreme court an appeal from
the referee's report. Neither party appealed. Accordingly, we
review this matter pursuant to SCR 22.17(2).
¶45 This court will affirm a referee's findings of fact
unless they are found to be clearly erroneous, but we review the
referee's conclusions of law on a de novo basis. In re
Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305
Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level
of discipline given the particular facts of each case,
15
No. 2015AP2676-D
independent of the referee's recommendation, but benefitting
from it. In re Disciplinary Proceedings Against Widule, 2003 WI
34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶46 There is no showing that any of the referee's findings
of fact, which are largely derived from the parties' stipulation
and the referee's credibility determinations, are clearly
erroneous. Accordingly, we adopt them.
¶47 We also accept the referee's conclusions with respect
to the alleged misconduct. We agree with the referee's analysis
and share his conclusion that Attorney Willihnganz committed the
misconduct alleged in counts one, two, and three of the
complaint.
¶48 The facts of record in this case do not support a
conclusion that Attorney Willihnganz's deposition testimony
constituted conduct involving dishonesty, fraud, deceit or
misrepresentation, in violation of SCR 20:8.4(c). Omissions
that cause a statement to be false can constitute unethical
conduct in violation of SCR 20:8.4(c). See, e.g., In re
Disciplinary Proceedings Against Knickmeier, 2004 WI 115, 275
Wis. 2d 69, 683 N.W.2d 445, cert. denied, 544 U.S. 1041 (2005);
In re Disciplinary Proceedings Against Urban, 2002 WI 63, 253
Wis. 2d 194, 645 N.W.2d 612. Here, the referee did not find
that Attorney Willihnganz's omission was dishonest, fraudulent,
deceitful, or that he communicated an untruth, either knowingly
or with reckless disregard. See SCR 20:1.0(h) (defining
misrepresentation). Mindful that the referee is the ultimate
arbiter of witness credibility, In re Disciplinary Proceedings
16
No. 2015AP2676-D
Against Riordan, 2012 WI 125, ¶28, 345 Wis. 2d 42, 824
N.W.2d 441, we conclude that there is insufficient evidence on
this record to establish that Attorney Willihnganz's deposition
testimony constituted conduct involving dishonestly, fraud,
deceit or misrepresentation in violation of SCR 20:8.4(c).
Accordingly, we dismiss count four of the OLR's complaint.
¶49 We next consider the appropriate discipline for
Attorney Willihnganz's misconduct. The referee properly
considered relevant factors, including, (1) the seriousness,
nature and extent of the misconduct; (2) the level of discipline
needed to protect the public, the courts and the legal system
from repetition of the attorney's misconduct; (3) the need to
impress upon the attorney the seriousness of the misconduct; and
(4) the need to deter other attorneys from committing similar
misconduct. In re Disciplinary Proceedings Against Hammis, 2011
WI 3, ¶39, 331 Wis. 2d 19, 793 N.W.2d 884; see also In re
Disciplinary Proceedings Against Grogan, 2011 WI 7, ¶15, 331
Wis. 2d 341, 795 N.W.2d 745 (recognizing the ABA Standards as a
guidepost).
¶50 The referee acknowledged that this court generally
follows a policy of progressive discipline. In re Disciplinary
Proceedings Against Ray, 2004 WI 45, 270 Wis. 2d 651, 678
N.W.2d 246; In re Disciplinary Proceedings Against Louderman,
230 Wis. 2d 200, 601 N.W.2d 625 (1999).
¶51 Indeed, in this case, the OLR's recommendation for a
60-day suspension was predicated on the OLR's policy of
progressive discipline. The OLR acknowledged that Attorney
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No. 2015AP2676-D
Willihnganz's conduct in this matter was not egregious. The OLR
observed:
In and of themselves in a vacuum, these violations are
relatively minor in that they don't involve harming
anyone, stealing any money or anything of that
severity. The reason for the recommendation of a 60-
day suspension is in weighing the pros and cons, the
merits and the balancing test, there is a desire in
the system that, for attorneys like Mr. Willihnganz,
that there be a system of progressive discipline.
Progressive discipline meaning that where,
unfortunately, there are subsequent violations, that
the penalties become increasingly more severe, Mr.
Willihnganz's first violation was - resulted in a
private reprimand. His second violation resulted in a
public reprimand. Had it not been for those two
cases, the OLR's recommendation in this case would
probably be for either a private or public reprimand
because that's the level of severity in a vacuum which
they reach.
¶52 The referee declined to impose progressive discipline
in this case. The referee opined that the cases cited by the
OLR involved more serious misconduct than was committed here.
He observed that Attorney Willihnganz provided representation in
only one case, over a brief period of time, and performed
minimal legal work. The referee found Attorney Willihnganz's
testimony credible when he said that he repeatedly urged the
client to provide more extensive discovery responses. The
referee also believed that Attorney Willihnganz "repeatedly
urged the client to engage the services of another lawyer."
¶53 The referee cited several cases where this court opted
to impose a successive public reprimand despite the OLR's
recommendation for progressive discipline in the form of a
license suspension. See In re Disciplinary Proceedings Against
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No. 2015AP2676-D
Kremkoski, 2006 WI 59, 291 Wis. 2d 1, 715 N.W.2d 594 (imposing
public reprimand despite prior private and public reprimand); In
re Disciplinary Proceedings Against Brandt, 2009 WI 43, 317
Wis. 2d 266, 766 N.W.2d 194 (imposing public reprimand despite
two private reprimands and a public reprimand); In re
Disciplinary Proceedings Against Hudec, 2014 WI 46, 354
Wis. 2d 728, 848 N.W.2d 287 (imposing public reprimand despite
three prior private reprimands and one public reprimand). The
referee noted the absence of other aggravating factors and the
presence of mitigating factors, including his cooperativeness
and remorse. The OLR has not appealed this recommendation and
we accede to the referee's recommendation that a public
reprimand is sufficient discipline for Attorney Willihnganz's
misconduct.
¶54 Finally, although the referee recommends we dismiss
one of the alleged counts of misconduct, he recommends that we
impose all of the costs of this disciplinary proceeding. In re
Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶29-30,
279 Wis. 2d 266, 694 N.W.2d 367 (holding that even when a
respondent prevails on a number of counts, it is still the
court's policy to assess full costs). We agree. Nothing about
this case warrants deviating from our general policy of imposing
all costs upon the respondent. See SCR 22.12. Attorney
Willihnganz is ordered to pay the full costs of the proceeding,
which are $5,028.97 as of October 6, 2016.
¶55 We accept the OLR's October 6, 2016 statement that
restitution is not warranted in this matter.
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No. 2015AP2676-D
¶56 IT IS ORDERED that count four of the complaint is
dismissed.
¶57 IT IS FURTHER ORDERED that Ty Christopher Willihnganz
is publicly reprimanded for his professional misconduct.
¶58 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Ty Christopher Willihnganz shall pay to the
Office of Lawyer Regulation the costs of this proceeding, which
total $5,028.97 as of October 6, 2016.
¶59 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2015AP2676-D.ssa
¶60 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam but write separately to state that I would have the
court address count 4, namely giving false testimony at a
deposition.
¶61 When Attorney Willihnganz was asked at a deposition if
he had been disciplined only once by this court, he responded
"Yes," apparently referring to a public reprimand he had
received from this court.
¶62 In addition to the public reprimand, Attorney
Willihnganz had received a private reprimand from this court.
¶63 The referee decided to dismiss count 4 but raised
questions about the scope of a lawyer's obligation to
affirmatively disclose a private reprimand to a tribunal.
¶64 I do not object to the referee's recommendation to
dismiss count 4. I do, however, conclude that the court ought
to answer whether an attorney should consider a private
reprimand as discipline by this court in answering questions
about court discipline. Lawyers, as well as the Office of
Lawyer Regulation and referees, ought to know the answer to this
question for the future.
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