Office of Lawyer Regulation v. Ernesto Chavez , 361 Wis. 2d 636 ( 2015 )

2015 WI 39
SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP569-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Ernesto Chavez, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Ernesto Chavez,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST CHAVEZ
OPINION FILED: April 17, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2015 WI 39
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP569-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Ernesto Chavez, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
APR 17, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Ernesto Chavez,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. On November 25, 2014, the Honorable
William Eich, the referee in this matter, issued a report
recommending that Attorney Ernesto Chavez be declared in default
and that his license to practice law in Wisconsin be suspended
for a period of one year for 41 counts of professional
misconduct. The referee also recommended that Attorney Chavez
pay restitution to one client and to the Wisconsin Lawyers' Fund
for Client Protection (Fund), which made payments to three other
No. 2014AP569-D
clients. The referee further recommended that Attorney Chavez
be required to pay the full costs of this proceeding, which are
$677.58 as of December 15, 2014.
¶2 We declare Attorney Chavez to be in default. We agree
with the referee that Attorney Chavez's professional misconduct
warrants a one-year license suspension. We also agree that
Attorney Chavez should be ordered to make restitution and pay
the full costs of this proceeding.
¶3 Attorney Chavez was admitted to practice law in
Wisconsin in 2000. The address he has on file with the State
Bar of Wisconsin is Madison, Wisconsin; however, it is the
belief of the Office of Lawyer Regulation (OLR) that Attorney
Chavez resides in the state of Washington.
¶4 In 2008, Attorney Chavez received a private reprimand
in a civil rights case, in which he failed to keep his clients
informed of the status or merits of their case and failed to
respond to numerous requests for information. Private Reprimand
No. 2008-34. On April 23, 2012, this court temporarily
suspended Attorney Chavez's law license pursuant to SCR 22.03(4)
for failure to cooperate in various OLR investigations
concerning his conduct. In addition, his license is
administratively suspended for failure to pay State Bar dues and
failure to complete continuing legal education (CLE)
requirements.
¶5 On March 13, 2014, the OLR filed a complaint against
Attorney Chavez alleging 41 counts of misconduct with respect to
his handling of nine client matters. Attorney Chavez was
2
No. 2014AP569-D
personally served with the complaint on April 18, 2014. He
failed to file an answer. The OLR filed a motion for default
judgment on June 24, 2014. Attorney Chavez was notified at both
his home address and his last known professional address of a
telephone hearing on the motion scheduled for October 6, 2014.
Attorney Chavez failed to appear in any manner at the hearing.
On November 13, 2014, the referee issued an order recommending
that Attorney Chavez be found in default. As noted above, the
formal referee's report followed on November 25, 2014.
¶6 The allegations in the OLR's complaint, which are
discussed in detail in the referee's report, will not be
extensively recited or repeated here. We will briefly summarize
the incidents giving rise to the misconduct.
Representation of S.C. (Counts One through Four)
¶7 In April of 2009, S.C. and her husband hired Attorney
Chavez to represent them in two appellate cases. S.C. paid
Attorney Chavez $1,500. No written fee agreement was signed.
Attorney Chavez placed the $1,500 advanced fee in a non-trust
account. S.C. terminated Attorney Chavez's representation in
November 2009. Attorney Chavez never returned S.C.'s files.
¶8 In April of 2010, Attorney Chavez executed a one-year
diversion agreement with the OLR concerning a grievance S.C. had
filed. In July of 2011, the OLR informed Attorney Chavez that
he had breached the diversion agreement and that the OLR would
continue investigating S.C.'s grievance.
3
No. 2014AP569-D
¶9 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of S.C.:
[COUNT ONE] By failing to provide a written fee
agreement to [S.C.] when she paid an advanced fee of
$1,500 for his representation, Chavez violated
SCR 20:1.5(b)(1) and (2).1
[COUNT TWO] Upon receipt of $1,500, specifically
in anticipation of providing legal representation to
[S.C.], by failing to deposit those funds into his
trust account, instead admittedly depositing the funds
into his general account, and with no evidence that he
intended to utilize the alternative fee placement
measures permitted under SCR 20:1.15(b)(4m), Chavez
violated SCR 20:1.15(b)(4).2
1
SCR 20:1.5(b)(1) and (2) provide:
(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall be communicated to the
client in writing, before or within a reasonable time
after commencing the representation, except when the
lawyer will charge a regularly represented client on
the same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including attorney's
fees, will be $1000 or less, the communication may be
oral or in writing. Any changes in the basis or rate
of the fee or expenses shall also be communicated in
writing to the client.
(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
that is paid to the lawyer shall be communicated in
writing.
2
SCR 20:1.15(b)(4) provides:
Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
(continued)
4
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[COUNT THREE] By failing to return [S.C.'s]
files to her, Chavez violated SCR 20:1.16(d).3
[COUNT FOUR] By failing to respond to OLR,
Chavez violated SCR 22.03(2) and (6),4 enforceable via
SCR 20:8.4(h).5
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
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 22.03(2) and (6) provide:
(2) Upon commencing an investigation, the
director shall notify the respondent of the matter
being investigated unless in the opinion of the
director the investigation of the matter requires
otherwise. The respondent shall fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct within 20 days after being served
by ordinary mail a request for a written response.
The director may allow additional time to respond.
Following receipt of the response, the director may
conduct further investigation and may compel the
respondent to answer questions, furnish documents, and
present any information deemed relevant to the
investigation.
. . . .
(6) In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a
(continued)
5
No. 2014AP569-D
Representation of G.N. and G.S. (Counts Five through Ten)
¶10 In January of 2010, G.N. paid Attorney Chavez $5,000
to represent her brother, G.S., in post-conviction proceedings.
Attorney Chavez deposited the money into his business account.
Attorney Chavez made various false statements to G.N. and to
G.S.'s wife, including that he had ordered transcripts, that he
had contacted a social worker at G.S.'s prison to schedule a
visit, and that he had drafted a brief.
¶11 In April of 2011, G.N. wrote to Attorney Chavez asking
him to refund the $5,000. Attorney Chavez told G.N. that he
would send her the brief but would refund the money if she did
not approve of the brief. Attorney Chavez never sent G.N. a
brief, nor did he refund any money. In September of 2012, the
Fund paid $5,000 to G.N. as reimbursement for her legal fees.
¶12 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of G.N. and G.S.:
[COUNT FIVE] By failing to order any transcripts
or take any post-conviction action on [G.S.'s] behalf,
Chavez violated SCR 20:1.3.6
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance."
5
SCR 20:8.4(h) provides that it is professional misconduct
for a lawyer to "fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
6
SCR 20:1.3 provides that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client."
6
No. 2014AP569-D
[COUNT SIX] Having accepted $5,000 from [G.N.]
to pursue post-conviction proceedings, and in the
absence of any evidence of having prepared any motions
or documents on behalf of [G.S.], Chavez violated
SCR 20:1.5(a).7
[COUNT SEVEN] By failing to return any of
[G.N.'s] money, after admitting she was entitled to at
least a partial refund, Chavez violated
SCR 20:1.16(d).
[COUNT EIGHT] Upon receipt of $5,000,
specifically in anticipation of providing legal
representation to [G.S.], by failing to deposit those
funds into his trust account, instead admittedly
7
SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
7
No. 2014AP569-D
depositing the funds into a non-trust account, and
with no evidence that he intended to utilize the
alternative fee placement measures permitted under
SCR 20:1.15(b)(4m), Chavez violated SCR 20:1.15(b)(4).
[COUNT NINE] By providing false information
regarding case status, including that transcripts had
been requested, that he had been attempting to set up
a phone visit with [G.S.], and that he had a draft
brief that he would provide to [G.N.], Chavez violated
SCR 20:8.4(c).8
[COUNT TEN] By failing to respond to OLR's
investigation of [G.N.'s] and [G.S.'s] grievance,
Chavez violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
Representation of L.T. (Counts 11-14)
¶13 Attorney Chavez's Wisconsin law license was suspended
for failure to comply with CLE reporting requirements on June 6,
2011. Attorney Chavez began representing L.T. in a Dane County
case in August of 2010. In late June of 2011, Attorney Chavez
sent emails to opposing counsel about a possible agreement in
the L.T. case and appeared on L.T.'s behalf at a plea hearing in
Dane County. Attorney Chavez failed to notify the court,
opposing counsel, or his client of his suspension.
¶14 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of L.T.:
[COUNT 11] By failing to provide notice of his
suspension to his client, the court, or opposing
8
SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
8
No. 2014AP569-D
counsel, Chavez violated [SCR] 22.26(1)(a), (b), and
(c),9 enforceable via SCR 20:8.4(f).10
[COUNT 12] By failing to withdraw from the case
when he was suspended, Chavez violated
11
SCR 20:1.16(a)(1).
[COUNT 13] By telling the bailiff on June 29,
2011 that they were prepared to proceed, negotiating
with the district attorney's office, and preparing to
9
SCR 22.26(1)(a), (b), and (c) provide:
(1) 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:
(a) Notify by certified mail all clients being
represented in pending matters 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.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
(c) Promptly provide written 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.
10
SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
11
SCR 20:1.16(a)(1), as relevant here, provides that a
lawyer shall withdraw from the representation of a client if
"the representation will result in violation of the Rules of
Professional Conduct or other law."
9
No. 2014AP569-D
enter a plea on his client's behalf in State v. [L.T.]
while his law license was suspended, Chavez violated
SCR 31.10(1)12 and [SCR] 22.26(2),13 which are enforced
under the Rules of Professional Conduct via
SCR 20:8.4(f).
[COUNT 14] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
12
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.
13
SCR 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 related work in this state for a
commercial employer itself not engaged in the practice
of law.
10
No. 2014AP569-D
Representation of T.D. (Counts 15-18)
¶15 In May of 2011, Attorney Chavez filed an
administrative appeal on behalf of T.D. in Green County. On
July 8, 2011, after his license was administratively suspended,
Attorney Chavez appeared at a final status teleconference in the
T.D. case. Opposing counsel informed the judge that Attorney
Chavez was suspended, and Attorney Chavez admitted it.
¶16 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of T.D.:
[COUNT 15] By failing, prior to the first
July 8, 2011 status conference, to provide notice of
his suspension to adverse counsel or the court in City
of Brodhead v. [T.D.], Chavez violated
[SCR] 22.26(1)(c), enforceable via SCR 20:8.4(f).
[COUNT 16] By making an appearance on [T.D.'s]
behalf at the first July 8, 2011 status conference in
City of Brodhead v. [T.D.], and by thereafter
attempting to negotiate an agreement with the
prosecuting attorney while his law license was
suspended, Chavez violated SCR 31.10(1) and
SCR 22.26(2), enforceable via SCR 20:8.4(f).
[COUNT 17] Having terminated his representation
of [T.D.] as a result of his June 6, 2011 law license
suspension, and having been ordered by the court in
the course of a teleconference on July 8, 2011 to
write a letter to [T.D.] informing him of a July 15,
2011 status conference, by thereafter failing to
provide such information to [T.D.], Chavez violated
SCR 20:1.16(d) and SCR 20:3.4(c).14
14
SCR 20:3.4(c) provides that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
11
No. 2014AP569-D
[COUNT 18] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
Representation of S.B. (Counts 19-21)
¶17 In July of 2011, after his license had been
administratively suspended, Attorney Chavez represented S.B. in
a Lafayette County case. He waived S.B.'s preliminary hearing
and filed a request for substitution. He failed to notify his
client, the court, or opposing counsel of his suspension.
¶18 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of S.B.:
[COUNT 19] By failing, prior to the July 11,
2011 preliminary hearing, to provide notice of his
suspension to his client, adverse counsel, or the
court in State v. [S.B.], Chavez violated
SCR 22.26(1)(a), (b), and (c), enforceable via
SCR 20:8.4(f).
[COUNT 20] By making an appearance on [S.B.'s]
behalf at a July 11, 2011 preliminary hearing in State
v. [S.B.] while his law license was suspended, Chavez
violated SCR 31.10(1) and [SCR] 22.26(2), enforceable
via SCR 20:8.4(f).
[COUNT 21] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
Representation of T.B. (Counts 22-26)
¶19 In April of 2011, T.B. hired Attorney Chavez to
represent her in a municipal traffic case and paid him $1,500
for the representation. Between May and August of 2011,
Attorney Chavez stopped updating T.B. about her case in spite of
the fact that she left him numerous voicemails. In August of
12
No. 2014AP569-D
2011, after his law license had been administratively suspended,
Attorney Chavez contacted T.B. and told her he could represent
her only if her case did not go to trial. He admitted to T.B.
that his law license was suspended. In March of 2012, the Fund
paid $1,500 to T.B. as reimbursement for her legal fees.
¶20 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of T.B.:
[COUNT 22] By collecting a fee of $1,500 as
payment for all pre-trial services, then failing to
fulfill his obligations under the fee agreement,
Chavez violated SCR 20:1.5(a).
[COUNT 23] By failing to withdraw from the case
when he was suspended, Chavez violated
SCR 20:1.16(a)(1).
[COUNT 24] By failing to provide notice of his
suspension to his client, Chavez violated
SCR 22.26(1)(a) and (b), enforceable via
SCR 20:8.4(f).
[COUNT 25] By telling [T.B.] that he could
continue to represent her as long as she did not go to
trial, and telling her that he would attend her case
review on August 22, 2011 while his law license was
suspended, Chavez violated SCR 20:8.4(c).
[COUNT 26] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
Representation of T.D. and J.B. (Counts 27-32)
¶21 In May of 2010, T.D. hired Attorney Chavez to
represent her son, J.B., in a criminal appeal. T.D. signed a
fee agreement and paid Attorney Chavez $2,000. She gave him
another $1,000 within the following month. Attorney Chavez had
13
No. 2014AP569-D
one meeting with J.B. in July of 2010 where J.B. signed
paperwork confirming that Attorney Chavez was to appeal his
criminal conviction. Attorney Chavez never filed a notice of
intent to pursue post-conviction relief in circuit court, nor
did he file an appeal in the court of appeals. Attorney Chavez
never informed T.D. or J.B. of his administrative suspension and
inability to handle the appeal, nor did he withdraw from
representation.
¶22 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of T.D. and J.B.:
[COUNT 27] By failing to file notice in Circuit
Court of [J.B.'s] intent to appeal, or an appeal in
the Court of Appeals, or to otherwise further [J.B.'s]
interests, Chavez violated SCR 20:1.3.
[COUNT 28] By collecting a fee of $3,000, then
failing to fulfill his obligations under the fee
agreement, Chavez violated SCR 20:1.5(a).
[COUNT 29] By failing to withdraw from [J.B.'s]
case when he was suspended, Chavez violated
SCR 20:1.16(a)(1).
[COUNT 30] By failing to protect [J.B.'s]
appellate rights after he ended his representation,
Chavez violated SCR 20:1.16(d).
[COUNT 31] By failing to provide notice of his
suspension to his client, Chavez violated
SCR 22.26(1)(a) and (b), enforceable via SCR
20:8.4(f).
[COUNT 32] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
14
No. 2014AP569-D
Representation of J.G. (Counts 33-34)
¶23 In May of 2010, J.G. hired Attorney Chavez in
anticipation of criminal charges being filed against him. J.G.
signed a fee agreement and agreed to pay Attorney Chavez $1,500
over time. He paid Attorney Chavez at least $1,000. After his
law license was administratively suspended, Attorney Chavez
offered to prepare papers for J.G. in a civil case in return for
a fee plus part of the settlement. In September of 2011,
Attorney Chavez told the OLR that he was going to draft a
complaint for J.G., who would then appear pro se.
¶24 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of J.G.:
[COUNT 33] By failing to provide notice of his
suspension to his client, and to advise his client to
seek legal advice elsewhere, Chavez violated
[SCR] 22.26(1)(a) and (b), enforceable via
SCR 20:8.4(f).
[COUNT 34] By failing to respond to OLR, Chavez
violated SCR 22.03(2) and (6), enforceable via
SCR 20:8.4(h).
Representation of V.S. (Counts 35-41)
¶25 In March of 2011, V.S. was charged in three Adams
County traffic cases. In May of that year, she hired Attorney
Chavez to represent her. She signed a fee agreement and paid
him $500 as partial payment toward a flat fee. Attorney Chavez
never filed a notice of appearance or took any other action on
V.S.'s behalf. On June 27, 2011, V.S. appeared in court for a
return date, but Attorney Chavez did not appear. Opposing
15
No. 2014AP569-D
counsel informed V.S. that Attorney Chavez's license had been
suspended. In September of 2012, the Fund paid $500 to V.S. as
reimbursement for her legal fees.
¶26 The OLR's complaint alleged, and the referee found,
that Attorney Chavez committed the following counts of
misconduct with respect to his representation of V.S.:
[COUNT 35] By accepting funds from [V.S.] in May
2011, and present[ing] a fee agreement that described
pretrial and trial events through October 2011,
knowing that he was subject to an automatic license
suspension at the close of business on June 6, 2011,
with no apparent intention to remedy his CLE
deficiencies prior to suspension, and with no notice
to [V.S.] of his impending suspension, Chavez violated
SCR 20:8.4(c).
[COUNT 36] Prior to the June 6, 2011 suspension
of his law license, by failing to inform [V.S.] of
relevant case developments, including the impending
suspension of his license and his likely inability to
appear on [V.S.'s] behalf at the June 27, 2011
proceeding in Circuit Court, Chavez violated
SCR 20:1.4(a)(3).15
[COUNT 37] By failing to, while his license was
valid, enter an appearance in the Adams County
matters, request discovery or otherwise further
[V.S.'s] interests, Chavez violated SCR 20:1.3.
[COUNT 38] Having accepted $500 from [V.S.],
despite failing to perform any work on her behalf
beyond the initial introduction and consultation,
Chavez violated SCR 20:1.5(a).
[COUNT 39] By failing to provide notice of his
suspension to [V.S.] following that suspension, Chavez
15
SCR 20:1.4(a)(3) provides that a lawyer shall "keep the
client reasonably informed about the status of the matter."
16
No. 2014AP569-D
violated [SCR] 22.26(1)(a) and (b), enforceable via
SCR 20:8.4(f).
[COUNT 40] Subsequent to his June 6, 2011
license suspension and the consequent termination of
his representation of [V.S.], by failing to respond to
her inquiries regarding case status, particularly
regarding his failure to appear in court on June 27,
2011; by failing to return [V.S.'s] case file; and
failing to return any unearned portion of the advanced
fee, Chavez violated SCR 20:1.16(d).
[COUNT 41] By failing to respond to OLR's
investigation of [V.S.'s] grievance, Chavez violated
SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h).
¶27 The referee recommended that Attorney Chavez's license
be suspended for a period of one year. The referee also
recommended that Attorney Chavez be ordered to pay restitution
of $3,000 to T.D. (T.D. and J.B. matter) and that he be ordered
to pay restitution to the Fund in the amounts of $1,500 for
T.B., $500 for V.S., and $5,000 for G.N. The referee also
recommended that Attorney Chavez be required to pay the full
costs of the proceeding.
¶28 Attorney Chavez has not filed an appeal from the
referee's report.
¶29 We agree with the referee that Attorney Chavez should
be declared in default. Although Attorney Chavez was personally
served with the complaint and was given notice of the hearing on
the motion for default judgment, he failed to appear or present
a defense. Accordingly, we deem it appropriate to declare him
in default.
¶30 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
17
No. 2014AP569-D
See In re Disciplinary Proceedings Against Eisenberg,
2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may
impose whatever sanction it sees fit, regardless of the
referee's recommendation. See In re Disciplinary Proceedings
Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶31 We agree with the referee that the allegations in the
OLR's complaint have been established and that Attorney Chavez
engaged in the 41 counts of misconduct alleged in the complaint.
We further agree that a one-year suspension of his license to
practice law in Wisconsin is an appropriate sanction for the
misconduct, and we agree that he should pay the full costs of
the proceeding. Finally, we agree that Attorney Chavez should
be ordered to make restitution as recommended by the referee.
¶32 IT IS ORDERED that the license of Ernesto Chavez to
practice law in Wisconsin is suspended for a period of one year,
effective the date of this order.
¶33 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Ernesto Chavez shall make restitution as follows:
$3,000 to T.D. (T.D. and J.B. matter); and $7,000 to the
Wisconsin Lawyers' Fund for Client Protection, consisting of
$1,500 on behalf of T.B., $500 on behalf of V.S., and $5,000 on
behalf of G.N.
¶34 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Ernesto Chavez shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $677.58.
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No. 2014AP569-D
¶35 IT IS FURTHER ORDERED that the restitution specified
above is to be completed prior to paying costs to the Office of
Lawyer Regulation.
¶36 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Ernesto Chavez shall comply with the provisions
of SCR 22.26 concerning the duties of an attorney whose license
to practice law has been suspended.
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No. 2014AP569-D
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