Office of Lawyer Regulation v. Mark Alan Ruppelt ( 2017 )

2017 WI 80SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP89-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Mark Alan Ruppelt,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST RUPPELT
OPINION FILED: July 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 15, 2017
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Terry E. Johnson and Peterson, Johnson & Murray, S.C.,
Milwaukee, and oral argument by Terry E. Johnson.
For the complainant-respondent, there was a brief filed by
Paul W. Schwarzenbart and Office of Lawyer Regulation, Madison,
and oral argument by Paul W. Schwarzenbart.
2017 WI 80NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP89-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Mark Alan Ruppelt, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent, JUL 7, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Mark Alan Ruppelt,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. This disciplinary matter comes to the
court on Attorney Ruppelt's appeal of a report and
recommendation of Referee James J. Winiarski. The referee based
his report on a stipulation between Attorney Ruppelt and the
Office of Lawyer Regulation (OLR), in which Attorney Ruppelt
admitted 16 counts of misconduct and agreed that his Wisconsin
law license should be suspended for one year. In his report,
the referee recommended a slightly longer suspension than what
No. 2015AP89-D
the parties had agreed upon: a 15-month suspension, rather than
the parties' stipulated one-year suspension. Through his
appeal, Attorney Ruppelt challenges the referee's 15-month
suspension; he argues that it is excessive under our
disciplinary case law, whereas the parties' stipulated one-year
suspension is the appropriate length. Attorney Ruppelt also
criticizes certain characterizations and findings by the
referee, and proposes that this court should adopt a policy by
which the court would give deference to parties' disciplinary
stipulations.
¶2 When we review a referee's report and recommendation
in an attorney disciplinary case, we affirm the 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 to impose given the particular
facts of each case, independent of the referee's recommendation,
but benefiting from it. In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶3 After reviewing this matter and considering Attorney
Ruppelt's appeal, we accept the referee's factual findings and
legal conclusions based on the parties' stipulation. We agree
with the referee's recommendation that a 15-month suspension is
appropriate, despite Attorney Ruppelt's arguments to the
contrary. We also reject Attorney Ruppelt's remaining
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No. 2015AP89-D
arguments. Finally, we remand this matter to the referee for
supplemental proceedings on the issue of restitution.
¶4 The OLR initiated this disciplinary proceeding with
the filing of a five-count complaint, which it later amended in
an 18-count complaint seeking a 15-month suspension. Attorney
Ruppelt filed an answer in which he denied any professional
misconduct. During the pre-hearing phase of this proceeding,
the OLR dismissed two counts (Counts 15 and 16) due to
evidentiary problems, leaving 16 counts to be resolved.
¶5 Shortly before the scheduled hearing in this matter,
Attorney Ruppelt entered into a stipulation in which he admitted
the remaining 16 counts of misconduct. Attorney Ruppelt and the
OLR agreed to a one-year suspension.
¶6 The referee's report accepted the parties' stipulation
and determined that the stipulated facts supported legal
conclusions that Attorney Ruppelt had engaged in the remaining
16 counts of professional misconduct. The referee's factual
findings and conclusions of law are described in the following
paragraphs.
¶7 Attorney Ruppelt was admitted to the practice of law
in this state in May 1994. He currently practices law in
Milwaukee. Attorney Ruppelt has been the subject of
professional discipline on one previous occasion: in 2014, this
court publicly reprimanded him for engaging in improper sexual
relations with a client and providing false information to his
employer and the OLR regarding the nature and timing of his
relationship with the client. See In re Disciplinary
3
No. 2015AP89-D
Proceedings Against Ruppelt, 2014 WI 53, 354 Wis. 2d 738, 850
N.W.2d 1.
¶8 In the instant case, Attorney Ruppelt's actions fall
into two broad categories of misconduct, both of which involve
the same client, S.J. The first category of misconduct concerns
Attorney Ruppelt's conversion of $50,000 of trust account funds
to his own use, though he later repaid that amount. The second
category of misconduct generally concerns Attorney Ruppelt's
additional trust fund improprieties; his dishonest billing
practices; his efforts to conceal his misconduct from opposing
counsel, the circuit court, and the OLR; and his failure to
reasonably consult with S.J.
Misuse of $50,000 (Counts 1-5)
¶9 Attorney Ruppelt practiced law as a shareholder in a
small law firm with one other shareholder.
¶10 In approximately July 2006, S.J. hired the firm to
represent him in a criminal matter involving a former
girlfriend. About two years later, the firm began representing
S.J. in a related civil action brought by his former girlfriend.
Attorney Ruppelt was counsel of record for S.J. in both the
criminal and civil cases. S.J.'s former girlfriend retained a
lawyer to represent her in the civil action.
¶11 Between August 2006 and June 2008, at least
$170,332.55 of S.J.'s funds were deposited into the firm's trust
account, most of which, as directed by Attorney Ruppelt, were
applied to pay the firm for fees and expenses for the
representation of S.J. in his criminal and civil cases.
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No. 2015AP89-D
¶12 In approximately May 2007, Attorney Ruppelt needed
money in connection with his and his then-wife's purchase of a
home. Attorney Ruppelt and the firm's other shareholder agreed
that the firm would loan $50,000 to Attorney Ruppelt for that
purpose. Attorney Ruppelt directed the firm's office manager to
disburse $50,000 from the firm's trust account to the firm; to
attribute that payment to the S.J. matter; and to then disburse
that $50,000 to him. About three months later, Attorney Ruppelt
directed the office manager to deposit $50,000 of his own
personal funds to the firm's trust account. During the course
of the OLR investigation, Attorney Ruppelt provided testimony
under oath that the $50,000 trust account disbursement was for
legal fees earned by the firm in S.J.'s criminal and civil
cases. This testimony was untrue.
¶13 The parties stipulated, and the referee agreed, that
Attorney Ruppelt's actions described above constituted a
violation of SCR 20:1.15(b)(1)1 (Count 1); SCR 20:8.4(c)2 (Counts
1
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.
Former SCR 20:1.15(b)(1) provided:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of client
and 3rd parties paid to a lawyer or law firm in
(continued)
5
No. 2015AP89-D
2 and 4); SCR 20:1.15(b)(3)3 (Count 3); and SCR 22:03(6),4
enforceable via SCR 20:8.4(h)5 (Count 5).
Other conduct (Counts 6-14, 17-18)6
¶14 As noted above, the remaining misconduct counts
concern Attorney Ruppelt's additional trust fund improprieties;
his dishonest billing practices; his efforts to conceal his
misconduct from opposing counsel, the circuit court, and the
OLR; and his failure to reasonably consult with S.J. The
referee made the following findings and conclusions regarding
these counts.
connection with a representation shall be deposited in
one or more identifiable trust accounts.
2
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
3
Former SCR 20:1.15(b)(3) provided: "No funds belonging to
a lawyer or law firm, except funds reasonably sufficient to pay
monthly account service charges, may be deposited or retained in
a trust account."
4
SCR 22:03(6) provides: "In the course of the
investigation, the respondent's willful failure to provide
relevant information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a disclosure
are misconduct, regardless of the merits of the matters asserted
in the grievance."
5
SCR 20:8.4(h) provides: "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 22.00l(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
6
As stated above, the parties stipulated to the dismissal
of Counts 15 and 16 due to insufficient evidence.
6
No. 2015AP89-D
¶15 Between January 2007 and July 2008, Attorney Ruppelt
caused the firm to disburse as much as $104,644.68 of S.J.'s
funds held as advanced fees in the firm's trust account in
excess of the amounts that had been earned by the firm on S.J.'s
cases. The parties stipulated, and the referee agreed, that
this conduct constituted a violation of SCR 20:1.15(b)(4)7 and
SCR 20:8.4(c) (Counts 6 and 7).
¶16 Between August 2006 and July 2008, Attorney Ruppelt
also caused the firm to disburse as much as $134,446.88 in fees
from S.J.'s funds in trust, without providing S.J. with written
notice of the disbursements at least five business days before
making them, and without identifying the balance of S.J.'s funds
in trust following the withdrawal of those fees. The parties
stipulated, and the referee agreed, that this conduct
constituted a violation of SCR 20:1.15(g)(1)8 (Count 8).
7
Former SCR 20:1.15(b)(4) provided:
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
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
8
Former SCR 20:1.15(g)(1) provided:
At least 5 business days before the date on which
a disbursement is made from a trust account for the
purpose of paying fees, with the exception of
contingent fees or fees paid pursuant to court order,
the lawyer shall transmit to the client in writing all
of the following:
(continued)
7
No. 2015AP89-D
¶17 In 2008, Attorney Ruppelt used a general durable power
of attorney from S.J. to liquidate S.J.'s life insurance policy
without consulting with S.J. Attorney Ruppelt then deposited an
$18,779.51 check payable from the life insurance company to S.J.
in the firm's trust account, endorsing the check using S.J.'s
power of attorney. The deposit of funds from the insurance
company does not appear in S.J.'s client ledger. The parties
stipulated, and the referee agreed, that this conduct
constituted a violation of SCR 20:1.4(a)(2)9 (Count 9).
¶18 Both before and after Attorney Ruppelt's
representation of S.J. ended, S.J. sent several letters to
Attorney Ruppelt stating that he did not know how much of his
money remained in the trust account. Attorney Ruppelt failed to
provide S.J. with a full accounting for the funds received in
trust either during or after the representation. The parties
stipulated, and the referee agreed, that by failing to provide
S.J. with a full, written accounting for his funds at the
a. an itemized bill or other accounting showing
the services rendered;
b. notice of the amount owed and the anticipated
date of the withdrawal; and
c. a statement of the balance of the client's
funds in the lawyer trust account after the
withdrawal.
9
SCR 20:1.4(a)(2) provides: "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
8
No. 2015AP89-D
termination of the representation, Attorney Ruppelt violated SCR
20:1.15(d)(2)10 (Count 10).
¶19 In the civil action brought by S.J.'s girlfriend
against S.J., Attorney Ruppelt produced in discovery, pursuant
to a circuit court order, twelve invoices dated between February
of 2007 and October of 2009, when those bills were either
altered in June of 2010 or not generated until June of 2010.
The parties stipulated, and the referee agreed, that this
conduct constituted a violation of SCR 20:8.4(c) (Count 11).
¶20 Also in the civil action brought by S.J.'s girlfriend
against S.J., Attorney Ruppelt filed an affidavit stating that
"No funds have been expended for any reason other than the
criminal defense of [S.J.]." This statement was untrue given
that $50,000 of S.J.'s funds had been temporarily used to assist
Attorney Ruppelt in the purchase of a new home, and Attorney
Ruppelt had repeatedly withdrawn funds from the trust before
they had been earned. The parties stipulated, and the referee
agreed, that this conduct constituted a violation of
SCR 20:3.3(a)(l)11 (Count 12).
10
Former SCR 20:15(d)(2) provided: "Upon final
distribution of any trust property or upon request by the client
or a 3rd party having an ownership interest in the property, the
lawyer shall promptly render a full written accounting regarding
the property."
11
SCR 20:3.3(a)(1) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer."
9
No. 2015AP89-D
¶21 Also in the civil action brought by S.J.'s girlfriend
against S.J., Attorney Ruppelt failed to respond to discovery
requests for retainer contracts, billing statements, and S.J.'s
trust account ledger, necessitating two court orders to compel
discovery. Attorney Ruppelt ultimately produced a retainer
agreement, which was dated July 9, 2006, but had actually been
signed by S.J. in early July 2010. Attorney Ruppelt also
produced a trust account ledger that omitted the $50,000
disbursed to Attorney Ruppelt in connection with his purchase of
a new home, his replacement of that $50,000 several months
later, and his deposit of the proceeds of S.J.'s life insurance
policy. The parties stipulated, and the referee agreed, that
this conduct constituted a violation of SCR 20:8.4(c) and
SCR 20:3.4(d)12 (Counts 13 and 14).
¶22 During the course of his legal work for S.J., Attorney
Ruppelt charged S.J. $395 per hour for work performed by an
associate, whose hourly rate was then $200, as well as for work
performed by his legal assistant. The parties stipulated, and
the referee agreed, that this conduct constituted a violation of
SCR 20:1.5(a)13 (Count 17).
12
SCR 20:3.4(d) provides: "A lawyer shall not in pretrial
procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper
discovery request by an opposing party."
13
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
(continued)
10
No. 2015AP89-D
¶23 During the course of the OLR investigation, Attorney
Ruppelt represented to the OLR that he had provided S.J. with
billing statements showing the work performed by the firm, when
this was not in fact true. Attorney Ruppelt also falsely
represented to the OLR he had provided an accurate trust account
ledger both to opposing counsel in S.J.'s civil matter and to
S.J. at the termination of representation. The parties
stipulated, and the referee agreed, that this conduct
constituted a violation of SCR 22:03(6), enforceable via SCR
20:8.4(h) (Count 18).
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.
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No. 2015AP89-D
¶24 In his report, the referee recommended that the court
suspend Attorney Ruppelt's license for 15 months, as opposed to
the one year to which the parties had stipulated. In making
this recommendation, the referee considered a number of
aggravating factors. Among other things, the referee found that
Attorney Ruppelt deliberately and repeatedly failed to follow
trust account rules, apparently believing that he would never
get caught; that he took advantage of a vulnerable client; and
that he engaged in a variety of misleading and deceptive
behaviors in an attempt to conceal his misconduct.
¶25 The referee recommended that Attorney Ruppelt should
be required to pay the full costs of this proceeding. The OLR's
statement of costs discloses that as of April 28, 2017, the
costs of this proceeding were $16,743.46.
¶26 The referee did not recommend restitution, nor did the
OLR request it, explaining that there were no reasonably
ascertainable restitution amounts.
¶27 We now turn to the merits of Attorney Ruppelt's
appeal. Attorney Ruppelt argues that the referee's recommended
15-month suspension is excessive. He argues that analogous
disciplinary cases best support the parties' stipulated one-year
suspension——not the referee's recommended 15-month suspension.
See, e.g., In re Disciplinary Proceedings Against Biester, 2013
WI 85, 350 Wis. 2d 707, 838 N.W.2d 79 (one-year suspension for
30 counts of misconduct in six client matters; misconduct
included misuse of client funds, trust account violations, and
neglect of client matters); In re Disciplinary Proceedings
12
No. 2015AP89-D
Against Raneda, 2012 WI 42, 340 Wis. 2d 273, 811 N.W.2d 412(one-year suspension for 14 counts of misconduct in two client
matters; misconduct included trust account violations, lack of
candor toward a tribunal, and neglect of client matters).
¶28 Attorney Ruppelt further argues that this court should
adopt a policy of awarding deference to parties' disciplinary
stipulations. Attorney Ruppelt reasons that the parties know
more about their case, the strength of the evidence, and the
implications that evidence would have for discipline than the
referee or this court. Attorney Ruppelt also stresses that
respondent lawyers in disciplinary proceedings would greatly
benefit from having some certainty that this court will approve
reasonable disciplinary stipulations entered into with the OLR.
¶29 Attorney Ruppelt also complains that the referee's 15-
month suspension is erroneously based on supposition and
conjecture. He claims that certain of the referee's factual
findings about Ruppelt's conduct were not expressly included
within the parties' stipulation and thus were not an appropriate
basis for increased discipline. In particular, Attorney Ruppelt
takes issue with the referee's statements that his conduct was
premeditated and well planned; that he appeared to believe his
misconduct would never be detected; that he apparently felt that
S.J. was desperate and vulnerable; that he would never have
taken these liberties with a corporate or government client; and
that the referee had to assume that the parties' stipulation
captured all of the improper disbursements from S.J.'s funds in
trust.
13
No. 2015AP89-D
¶30 We disagree with Attorney Ruppelt's arguments. To
begin with, we agree with the referee that Attorney Ruppelt's
actions merit a 15-month suspension, as opposed to the one-year
suspension called for in the parties' stipulation. Although
this court often imposes the disciplinary sanctions that parties
jointly request, we are free to reject such agreements as
circumstances require. See, e.g., In re Disciplinary
Proceedings Against Schreier, 2013 WI 35, 347 Wis. 2d 92, 829
N.W.2d 744 (rejecting the referee's recommendation, which was
based upon the parties' stipulation, for a two-year suspension
with no conditions for reinstatement, and instead imposing a 30–
month suspension with conditions for reinstatement). This
discretion flows from the fact that in lawyer disciplinary
cases, this court is obligated to act as a protector of the
public, the court system, and the integrity of the bar——not as a
scribe charged with formalizing the parties' mutual wishes.
Although this court fully appreciates the efficiency attained
through stipulations, we will not allow the goal of efficiency
to take precedence over the necessity of effecting the core
functions of the lawyer disciplinary system. Sometimes, then, a
departure from a joint stipulation is necessary.
¶31 This is one of those cases. We agree with the referee
that the parties' stipulated one-year suspension does not
adequately take into account the duration and severity of
Attorney Ruppelt's misconduct. We note in particular the
referee's observations that Attorney Ruppelt deliberately and
repeatedly "ignore[d] all trust rules and used trust funds as
14
No. 2015AP89-D
though they were his own"; that he displayed a willingness to
cover-up his misconduct and deceive those who inquired about it;
that his liquidation of S.J.'s life insurance policy without
S.J.'s knowledge or consent was "most disturbing"; and that he
exhibited "a total lack of professionalism and the moral
character required of a licensed attorney." On these facts,
which we deem justified by the record, our cases readily support
the 15-month suspension called for by the referee. See, e.g.,
In re Disciplinary Proceedings Against Edgar, 230 Wis. 2d 205,
601 N.W.2d 284 (1999) (two-year suspension for conversion of
$11,000 from escrow account, misrepresentations, and trust
account violations).
¶32 We acknowledge here, as we have in the past, that "the
imposition of discipline in attorney disciplinary cases is not
an exact science." In re Disciplinary Proceedings Against
Siderits, 2013 WI 2, ¶33, 345 Wis. 2d 89, 824 N.W.2d 812. This
case certainly proves the point. To define with precision the
boundary between conduct that merits a one-year suspension, as
the parties requested, versus conduct that merits a 15-month
suspension, as we deem appropriate, is virtually impossible;
both terms are of significant length, both terms will greatly
impact the respondent lawyer's practice, and both terms will
require the respondent lawyer to successfully complete the
formal reinstatement procedure set forth in SCRs 22.29 through
22.33.
¶33 On these particularly troubling facts, however, we are
confident that a fifteen-month suspension is needed to impress
15
No. 2015AP89-D
upon Attorney Ruppelt and other lawyers in this state the
seriousness of the professional misconduct at issue here, and to
protect the public from similar misconduct in the future.
¶34 We reject the remainder of Attorney Ruppelt's
arguments. As foreshadowed by the above discussion, we will not
adopt, through case law, a policy by which the court will defer
to parties' disciplinary stipulations, as Attorney Ruppelt
requests. Due to our overarching duty to protect the public and
the bar, we must remain the ultimate arbiter of the appropriate
level of discipline, owing no deference on this subject to
either the parties or the referee. To be sure, parties' and
referees' opinions on disciplinary sanctions are highly
informative, but they are just that——opinions, not authorities
to which we must defer. See In re Disciplinary Proceedings
Against Roitburd, 2016 WI 12, ¶20, 368 Wis. 2d 595, 882
N.W.2d 317 (stating that "it is ultimately this court's
responsibility" to determine appropriate disciplinary
sanctions).
¶35 Neither do we agree with Attorney Ruppelt's argument
that a referee may not make any factual findings outside of the
facts expressly included within the parties' stipulation. As a
factfinder, the referee may draw any reasonable inferences from
the evidence introduced——here, the stipulated facts——just as a
circuit court may do when operating as a factfinder. See
SCR 22.16 (providing that a referee has the powers of a judge
trying a civil action); see also Cogswell v. Robertshaw Controls
Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647, 650 (1979) (when the
16
No. 2015AP89-D
trial judge acts as the finder of fact, it is within the trial
judge's authority to draw reasonable inferences from the
credible evidence).
¶36 It can be no other way. To illustrate the point,
consider the number of factors relevant to disciplinary
recommendations that referees must frequently infer. See
generally American Bar Association's Standards for Imposing
Lawyer Sanctions, § 9.22 (including, as potential aggravating
factors to consider in evaluating discipline, the respondent
lawyer's dishonest or selfish motive, bad faith obstruction of
the disciplinary proceeding, refusal to acknowledge wrongful
nature of conduct, and indifference to restitution). It would
be an unusual lawyer indeed who would explicitly stipulate to
any of these behaviors or attitudes. Simply put, some facts are
inferential rather than empirical, and referees, like circuit
courts, are empowered to infer them. We therefore reject
Attorney Ruppelt's argument.
¶37 We turn next to the issue of costs. Our general
practice is to impose full costs on attorneys who are found to
have committed misconduct. See SCR 22.24(1m). Attorney Ruppelt
has not claimed that there are reasons to depart from that
practice in this matter, and we have not found any reason to do
so. We therefore impose full costs.
¶38 Finally, we turn to the issue of restitution. In
response to a concern expressed by the referee in reviewing the
parties' stipulation, the parties informed the referee that no
restitution was due because there was no reasonably
17
No. 2015AP89-D
ascertainable restitution amount. The referee deferred to this
view, though he expressed concern in his report that the
parties' stipulation was "unclear" on "whether [Attorney]
Ruppelt ultimately accounted to his client for his time and all
funds taken by [Attorney] Ruppelt out of the trust account," and
shed no light on "whether the client was satisfied with any
accounting that was rendered or . . . with the overall fees
charged."
¶39 We share the referee's concerns. On this record, it
seems that the amount of restitution owed, if any, is not so
much unknowable as it is simply unknown. Attorney Ruppelt has
stipulated that he prematurely disbursed $104,644.68 of S.J.'s
advanced fees, and that he overstated the hourly rate of his
associate and his legal assistant for the time they billed to
S.J.'s cases. Based on statements made to the referee, it
appears to be Attorney Ruppelt's position that, despite these
billing improprieties, his firm ultimately provided sufficient
legal services to justify all collected fees. Whether this
proposition is true or not is a determinable fact, to be
determined based on more than Attorney Ruppelt's mere say-so.
¶40 We are not, however, a fact-finding court. We
therefore remand this matter to the referee for further
proceedings on the issue of restitution. The referee is to file
a supplemental report on this issue within 120 days.
¶41 IT IS ORDERED that the license of Mark Alan Ruppelt to
practice law in Wisconsin is suspended for a period of fifteen
months, effective August 18, 2017.
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No. 2015AP89-D
¶42 IT IS FURTHER ORDERED that Mark Alan Ruppelt shall
comply with the requirements of SCR 22.26 concerning the duties
of a person whose license to practice law in Wisconsin has been
suspended.
¶43 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Mark Alan Ruppelt shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$16,743.46 as of April 28, 2017.
¶44 IT IS FURTHER ORDERED that within 120 days of the date
of this order, the referee shall file a supplemental report on
the issue of restitution, which shall include a recommendation
on how the costs of the referee's supplemental review should be
paid.
¶45 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
19
No. 2015AP89-D.ssa
¶46 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam opinion. I write about deferring to parties'
stipulations.
¶47 Attorney Ruppelt proposes that the court give
deference to parties' disciplinary stipulations. I disagree
with his proposal.
¶48 I wholeheartedly agree with the per curiam opinion
stating that the court will not act as a "scribe charged with
formalizing the parties' mutual wishes" and that the court will
not give deference to the parties' stipulations:
Although this court fully appreciates the efficiency
attained through stipulations, we will not allow the
goal of efficiency to take precedence over the
necessity of effecting the core functions of the
lawyer discipline system [namely to protect the
public, the court system, and the integrity of the
bar].
. . . .
Due to our overarching duty to protect the public and
the bar, we must remain the ultimate arbiter of the
appropriate level of discipline, owing no deference on
this subject to either the parties or the referee.
Per curiam op., ¶¶30, 35.
¶49 That said, when the per curiam opinion refers to
departure from a joint stipulation when "necessary," per curiam
op., ¶30, it means when a departure from a joint stipulation
would help protect the public, the court system and the
integrity of the bar.
¶50 For the reason set forth, I write separately.
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