Office of Lawyer Regulation v. Paul A. Strouse , 364 Wis. 2d 314 ( 2015 )

2015 WI 83SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1619-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Paul A. Strouse, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Paul A. Strouse,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST STROUSE
OPINION FILED: July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 16, 2015
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: BRADLEY, J. did not participate.
ATTORNEYS:
For the respondent-appellant, there were briefs by Dean R.
Dietrich and Ruder Ware L.L.S.C., Wausau, and oral argument by
Dean R. Dietrich.
For the complainant-respondent, there was a brief by James
C. Reiher and The Schroder Group, S.C., Waukesha, and oral
argument by James C. Reiher.
2015 WI 83NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1619-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Paul A. Strouse, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUL 15, 2015
v.
Diane M. Fremgen
Clerk of Supreme Court
Paul A. Strouse,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Paul A. Strouse has appealed a
report filed by Referee Kevin L. Ferguson, concluding that he
engaged in professional misconduct and recommending that this
court suspend Attorney Strouse's license to practice law for 60
days and impose full costs, which total $67,562.12 as of May 6,
2015.
¶2 Having considered the referee's report and the
parties' briefs and oral argument on appeal, we conclude that
No. 2013AP1619-D
the referee's findings of fact are supported by satisfactory and
convincing evidence and we accept his conclusions of law, with
one exception: we dismiss the allegation that Attorney Strouse
violated Supreme Court Rule (SCR) 20:8.4(c). We agree that
Attorney Strouse's misconduct warrants the suspension of his
license to practice law for 60 days and we impose the full costs
of this proceeding.
¶3 Attorney Strouse was admitted to practice law in
Wisconsin in 1991. He practices in Milwaukee, primarily
representing debtors in bankruptcy proceedings. Attorney
Strouse has received two previous public reprimands for
misconduct that occurred between 2007 and 2009. Public
Reprimand of Paul A. Strouse, 2010-2; Public Reprimand of Paul
A. Strouse, 2011-5. In addition, during the pendency of this
proceeding, Attorney Strouse received a third public reprimand.
Public Reprimand of Paul Strouse, 2015-6.
¶4 The Office of Lawyer Regulation (OLR) filed the
complaint giving rise to this proceeding on July 22, 2013,
alleging eights counts of professional misconduct committed in
four separate client matters. Attorney Strouse filed an answer
and Referee Ferguson was appointed. Attorney Strouse amended
his answer, and discovery and pre-hearing motions followed.
¶5 Shortly before the evidentiary hearing, Attorney
Strouse entered into a stipulation with the OLR to withdraw his
amended answer and allow entry of judgment regarding Counts One
and Two, pertaining to the matter of F.E. Subsequently, the
2
No. 2013AP1619-D
parties entered into a stipulation of facts, including 59
exhibits.
¶6 In June 2014, the referee commenced a four-day
evidentiary hearing which included extensive testimony, more
than 100 exhibits, and more than 150 pages of briefing. The
referee issued his report and recommendation on October 30,
2014. This appeal followed. The court heard oral argument on
April 16, 2015.
¶7 When reviewing a referee's report and recommendation,
the referee, as the finder of fact, is the ultimate arbiter of
the credibility of the witnesses. In re Disciplinary
Proceedings Against Alia, 2006 WI 12, ¶71, 288 Wis. 2d 299,
709 N.W.2d 399. We affirm the referee's findings of fact unless
they are clearly erroneous. In re Disciplinary Proceedings
Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d
125. We review the referee's conclusions of law de novo. Alia,
2006 WI 12, ¶39. We determine the appropriate level of
discipline to impose given the particular facts of each case,
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.
¶8 Each of the client matters raised in the OLR complaint
will be addressed seriatim.
Matter of F.E.
¶9 Attorney Strouse stipulated that he committed the
misconduct alleged in connection with his representation of F.E.
3
No. 2013AP1619-D
The facts will be summarized because the admitted misconduct is
relevant to our assessment of appropriate discipline.
¶10 F.E. purchased a gas station/convenience store in
Milwaukee and, as part of that transaction, F.E. signed a
Commercial Security Agreement that gave Ridgestone Bank
(Ridgestone) a security interest in, as relevant here, certain
fuel monitoring equipment. In April 2009, Ridgestone started
foreclosure proceedings on the gas station, and obtained a
default judgment in June 2009. Also in June 2009, F.E. hired
Attorney Strouse. Ridgestone's lawyer began asking Attorney
Strouse to arrange for F.E. to return the fuel monitoring
equipment. Meanwhile, Attorney Strouse filed a Chapter 7
bankruptcy petition on behalf of F.E. and, at some point, F.E.
delivered the fuel monitoring equipment to Attorney Strouse's
office. Attorney Strouse did not give F.E. a receipt.
¶11 On November 20, 2009, after Attorney Strouse had
failed to respond to repeated requests for the return of the
equipment, the gas station's receiver went unannounced to
Attorney Strouse's office to collect the fuel monitoring
equipment. Attorney Strouse admitted the equipment had been
stolen or lost.
¶12 The complaint alleged and Attorney Strouse later
stipulated that, by failing to clearly identify and
appropriately safeguard the fuel monitoring equipment left in
his possession, notwithstanding his receipt of written notice of
Ridgestone's interest in the property, Attorney Strouse violated
SCR 20:1.15(b)(6), which provides, in pertinent part, that
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No. 2013AP1619-D
"[t]he lawyer shall clearly identify and appropriately safeguard
other property of a client or 3rd party" (Count One).
¶13 The complaint alleged further and Attorney Strouse
stipulated that, by failing to provide a signed, written receipt
to F.E. describing the fuel monitoring equipment he had taken
into custody and the date of receipt, Attorney Strouse violated
SCR 20:1.15(j)(8)b., which provides that "[u]pon taking custody,
as a fiduciary, of any tangible personal property or securities
in bearer form, the lawyer shall provide to the previous
custodian a signed receipt, with a description of the property,
and the date of receipt" (Count Two).
¶14 We turn to the disputed aspects of this disciplinary
matter.
Matter of G.B.
¶15 Attorney Strouse appeals the referee's conclusion that
he committed two counts of misconduct in his representation of
G.B. In November 2009, G.B. and his partner, C.W., met with
Attorney Strouse to discuss Chapter 7 bankruptcy proceedings.
Attorney Strouse quoted each a fee of approximately $900 for
their respective bankruptcy proceedings, consisting of $300 in
filing fees and $600 in legal fees. It is undisputed that the
initial fee quote was less than $1,000.
¶16 On February 3, 2010, they met again and G.B. offered
to provide website design services in exchange for the $600
attorney fee. The OLR alleged that Attorney Strouse orally
agreed to G.B.'s suggestion. G.B. claimed he subsequently spent
some 15 hours on the website project. Attorney Strouse disputes
5
No. 2013AP1619-D
this claim, stating that he rejected G.B.'s suggestion because a
longtime friend did his website design. He claims that,
instead, he renewed his offer for a "special rate" of $975
conditioned upon receiving $650 up front before filing the
bankruptcy petition. G.B. gave Attorney Strouse $300 for the
bankruptcy filing fee that day.
¶17 On March 6, 2010, G.B. met with Attorney Strouse's law
associate to review and sign bankruptcy schedules for his
bankruptcy petition. The schedules included Form 2016(b), which
stated that Attorney Strouse had agreed to accept $0.00 in
attorney's fees and that no balance was due. The form also
contained the following certification: "I certify that the
foregoing is a complete statement of any agreement or
arrangement for payment to me for representation of the
debtor(s) in this bankruptcy proceeding."
¶18 G.B. stated that he interpreted the $0 as evidence of
the agreement to exchange web design for legal fees. Attorney
Strouse maintains that the $0 figure was an error; he stated
that the bankruptcy petition had to be filed quickly because a
small claims action had just been filed against G.B.
¶19 On March 8, 2010, Attorney Strouse filed G.B.'s
bankruptcy petition and sent G.B. a letter advising him that the
bankruptcy petition had been filed. This letter did not request
any additional fee.
¶20 On or about March 15, 2010, Attorney Strouse and G.B.
spoke by telephone. The substance of that conversation is hotly
contested. G.B. claimed that Attorney Strouse abruptly stated
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No. 2013AP1619-D
that he no longer wanted G.B. to work on the website and
demanded $750, increasing the total cost of representation to
$1,050. Attorney Strouse claims that G.B. realized that most of
the work on his bankruptcy case was done and didn't intend to
pay his balance. Attorney Strouse acknowledged that he "got
angry" and demanded payment.
¶21 On March 17, 2010, Attorney Strouse sent G.B. an
invoice for $1,050, reflecting a $300 payment received and a new
balance due of $750. A series of oral demands for payment and
refusals ensued. G.B. terminated Attorney Strouse's
representation and Attorney Strouse withdrew as counsel for
G.B.'s bankruptcy case.
¶22 On March 26, 2010, G.B. filed a small claims action
against Attorney Strouse in Kenosha County, seeking a refund of
his $300 filing fee, and alleging that Attorney Strouse reneged
on a barter for services agreement. On July 21, 2010, G.B.
prevailed at a bench trial. The transcript from this small
claims proceeding reflects that the circuit court found that
Attorney Strouse reneged on a barter agreement for services.
The circuit court deemed significant the $0 in fees claimed in
the bankruptcy disclosure. The circuit court awarded G.B.
$459.50.
¶23 Turning to this disciplinary proceeding, the referee
concluded that "Attorney Strouse failed to provide to [G.B.] a
written fee agreement setting forth the scope of the
representation and the basis or rate of the fees or expenses for
representation" and that "Attorney Strouse reneged on an
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No. 2013AP1619-D
agreement to provide legal services to [G.B.] for $900.00 and
subsequently failed to abide by the agreement when he increased
the fee to $1,050.00 without his client's consent." The referee
thus concluded that Attorney Strouse violated SCR 20:1.5(b)(1)
(Count Three) and SCR 20:8.4(c) (Count Four) in his
representation of G.B.
¶24 We first consider whether Attorney Strouse violated
SCR 20:1.5(b)(1). SCR 20:1.5(b)(l) provides:
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 . . . . If it is
reasonably foreseeable that the total cost of the
representation to the client, including attorney's
fees, will be $1,000 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.
¶25 The American Bar Association Comment to
SCR 20:1.5(b)(1) reminds us of the reason for this rule:
In a new client-lawyer relationship, however, an
understanding as to fees and expenses must be promptly
established. Generally, it is desirable to furnish
the client with at least a simple memorandum or copy
of the lawyer's customary fee arrangements that states
the general nature of the legal services to be
provided, the basis, rate or total amount of the fee
and whether and to what extent the client will be
responsible for any costs, expenses or disbursements
in the course of the representation. A written
statement concerning the terms of the engagement
reduces the possibility of misunderstanding.
¶26 Attorney Strouse takes issue with the referee's
statement that he "failed to provide to [G.B.] a written fee
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No. 2013AP1619-D
agreement." Attorney Strouse correctly notes that the term
"written fee agreement" does not appear in the rule and that no
written fee communication is required when it is foreseeable
that the total cost of representation will be $1,000 or less.
¶27 However, our rule requires that certain information
with respect to fees and expenses be communicated to the client,
whether orally or in writing. The rule expressly requires that
any changes in the basis or rate of the fee or expenses shall
also be communicated in writing to the client. The first
paragraph of the Wisconsin Committee Comment to SCR 20:1.5
observes that "communication to the client through the billing
statement should clearly indicate that a change in the basis or
rate of the fee or expenses has occurred along with an indication
of the new basis or rate of the fee or expenses." This was not
done.
¶28 The referee found that "Strouse unilaterally set
[G.B.'s] account at his regular flat rate of $1,050 and sent the
Statement . . . to [G.B.] because he was angry with [G.B.]"
(emphasis added). Attorney Strouse sent a brief cover letter
and a cursory billing statement that makes absolutely no mention
of any change in the fee charged to G.B., much less setting
forth the reason for the change. Simply put, the cursory
billing statement submitted to G.B., unilaterally increasing the
fee for legal services in the wake of an acrimonious telephone
call, does not satisfy the requirements of SCR 20:1.5(b).
Notwithstanding the imprecise language in the referee's
conclusion regarding a "written fee agreement," the record
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No. 2013AP1619-D
contains clear, satisfactory, and convincing evidence that
Attorney Strouse failed to satisfy the requirements of
SCR 20:1.5(b)(l).
¶29 We next consider Attorney Strouse's appeal from the
referee's conclusion that he violated SCR 20:8.4(c) in his
representation of G.B. SCR 20:8.4(c) provides that it is
professional misconduct for a lawyer to "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation."
Attorney Strouse contends that the referee failed to make
necessary or sufficient credibility determinations to support
his findings and conclusions on this point. We agree. Our
review would be simpler had the referee made more explicit
findings to support his conclusion that Attorney Strouse's
conduct constituted fraud, deceit, or misrepresentation in
violation of SCR 20:8.4(c).
¶30 The OLR alleged that, by reneging on an alleged
agreement to provide legal services to G.B. in exchange for
website design services or, in the alternative, by agreeing to
provide legal services for $900 and subsequently failing to
abide by that agreement, unilaterally increasing the fee to
$1,050 without his client's consent, Attorney Strouse violated
SCR 20:8.4(c).
¶31 The referee made a factual finding that the small
claims court "found in favor of [G.B.] and awarded [G.B.] a
judgment of $300.00 plus costs against Strouse to be paid
[G.B.]" and that the court "concluded that there was an
agreement between [G.B.] and Strouse for website design services
10
No. 2013AP1619-D
in lieu of bankruptcy legal fees [when he stated]: 'I'm
satisfied there was an agreement. You were taking it out in
work.'" However, the referee's mere recognition of the prior
small claims proceeding is insufficient, alone, to sustain a
violation of SCR 20:8.4(c) under these facts, particularly in
view of the lower burden of proof applicable in small claims
proceedings. The referee did find that Attorney Strouse
"reneged" on an agreement with G.B., but the precise nature of
that agreement remains unclear and the circumstances as
reflected in the referee's findings do not establish that
Attorney Strouse's conduct rose to the level of
misrepresentation in violation of SCR 20:8.4(c). This court
will not make a finding that the referee could have made but did
not. See In re Disciplinary Proceedings Against Wood,
122 Wis. 2d 610, 363 N.W.2d 220 (1985); see also In re
Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380,
342 N.W.2d 406 (1984). We conclude that the referee's findings
do not support the conclusion that Attorney Strouse's conduct
constituted misrepresentation in violation of SCR 20:8.4(c) and
we dismiss this charge.
Matter of Y.W.
¶32 Attorney Strouse appeals Referee Ferguson's
determination that Attorney Strouse violated SCR 20:1.5(b)(1) in
his representation of Y.W. In February 2010, Attorney Strouse
agreed to represent Y.W. in a Chapter 7 bankruptcy matter and,
on February 4, 2010, Y.W. paid Attorney Strouse $100 to start
11
No. 2013AP1619-D
the proceeding. The receipt reflects payment but does not state
a balance due.
¶33 On April 3, 2010, Y.W. paid an additional $300. The
receipt reflects a balance due of $650.
¶34 On April 15, 2010, Attorney Strouse filed Y.W.'s
Chapter 7 bankruptcy petition, without schedules. He sent a
billing statement to Y.W. dated April 15, 2010, reflecting an
opening balance of $1,050 with a balance due of $650.1
¶35 On April 22, 2010, Attorney Strouse met with Y.W. and
told her she owed him an additional $700. Attorney Strouse
later told the OLR that Y.W. agreed to pay the extra $50, a
claim Y.W. disputes. Attorney Strouse agreed to accept two
post-dated checks, each in the amount of $350, as payment, now
reflecting a total cost of representation of $1,100.
¶36 The same day, Attorney Strouse filed the requisite
bankruptcy schedules with the bankruptcy court and certified to
the court that he was charging Y.W. $750 for legal services, of
which $50 had been paid, with a balance due of $700.
¶37 Y.W. filed a grievance claiming that Attorney Strouse
agreed to represent her for a fee of $500. Attorney Strouse
denied that he would have agreed to a $500 fee.
1
Attorney Strouse paid $300 for the bankruptcy filing fee
and $28 for the purchase of three credit reports from the $400
he had received from Y.W.
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No. 2013AP1619-D
¶38 The referee found that "the testimony of [Y.W.] on the
total amount of fees was not credible," but concluded that
Attorney Strouse violated SCR 20:1.5(b)(1) (Count Five).
¶39 On appeal, Attorney Strouse maintains that the
April 15 billing statement sent to Y.W. satisfies the
requirements of SCR 20:1.5(b)(1). We disagree.
¶40 The referee found that Attorney Strouse agreed to
represent Y.W. for $1,050, consistent with his standard fee for
a Chapter 7 bankruptcy proceeding, and that Attorney Strouse did
not "provide [Y.W.] with a written document stating the scope of
the representation to be provided and the basis of the fee of
$1,050." The evidence supports the referee's findings and we
accept them.
¶41 The barebones billing statement sent to Y.W. does not
satisfy the requirements of SCR 20:1.5(b)(1), which required
Attorney Strouse to provide to Y.W., in writing, the scope of
the representation and the basis or rate of the fee. Nor, to
the extent there was a change in the fee from $1,050 to $1,100,
does the billing statement adequately denote the change in the
basis or rate of the fee or expenses. We agree with the
referee's conclusion that Attorney Strouse violated
SCR 20:1.5(b)(1) in his representation of Y.W.
E.J. and S.J.
¶42 Attorney Strouse next appeals the referee's conclusion
that Attorney Strouse violated SCR 20:1.2(a) (Scope of
Representation) and SCRs 20:1.4(a)(2), 20:1.4(a)(4), and
20:1.4(b) (Communication) in his representation of E.J. and S.J.
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No. 2013AP1619-D
He contends that Referee Ferguson fails to make necessary
credibility determinations to support his findings and
conclusions. We disagree.
¶43 In 2009, E.J. and S.J. retained Attorney Strouse to
file a Chapter 7 bankruptcy proceeding for them. The parties
disagree as to whether Attorney Strouse also agreed to represent
them in an adversary proceeding involving the discharge of
E.J.'s student loans. E.J. and S.J. claim there was such an
agreement. Attorney Strouse denies it; he claims they had a
limited agreement whereby he would look into the issue of
potentially representing them on the discharge of the student
loan and evaluate the likelihood of success of such a claim.
¶44 On August 1, 2009, E.J. and S.J. paid Attorney Strouse
$750. No written fee agreement was executed. It is undisputed
that Attorney Strouse filed a Chapter 7 bankruptcy petition on
the clients' behalf, which proceeded without incident. In
November 2009, when E.J. and S.J. sent Attorney Strouse a final
check for his services, however, they inquired about the student
loan discharge. In early January 2010, E.J. and S.J. hand-
delivered to Attorney Strouse's office a letter expressing
concern about Attorney Strouse's failure to return their calls
or communicate about the bankruptcy matter and the student loan
issue. Attorney Strouse did not respond.
¶45 On January 31, 2010, E.J. and S.J. again wrote to
Attorney Strouse about the student loan issue, requesting
information regarding a hearing date. Attorney Strouse did not
respond. On February 4, 2010, E.J. sent another letter to
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No. 2013AP1619-D
Attorney Strouse regarding the student loan issue. Attorney
Strouse did not respond.
¶46 Finally, E.J. and S.J. claim that on April 8, 2010,
they met with Attorney Strouse to discuss the student loan
matter. At this meeting, they say Attorney Strouse admitted
that he missed a relevant filing date and returned their file.
Attorney Strouse refutes this claim.
¶47 During the ensuing disciplinary proceeding, Attorney
Strouse told the OLR that he had prepared and delivered a legal
research memorandum to E.J. and S.J. addressing the student loan
issue. E.J. and S.J. deny receiving any such memorandum and
deny that Attorney Strouse discussed the contents of such a memo
with them.
¶48 The referee concluded that, by failing to consult with
E.J. and S.J. regarding the means by which the objectives of the
representation were to be pursued, including the discharge of
student loan debt, Attorney Strouse violated SCR 20:1.2(a)2 and
SCR 20:1.4(a)(2)3 (Count Six). In addition, the referee
concluded that, by failing to explain to E.J. and S.J. the
issues associated with the discharge of student loan debt,
2
SCR 20:1.2(a) provides, in relevant part, "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."
3
SCR 20:1.4(a)(2) provides that a lawyer shall "reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
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No. 2013AP1619-D
including the cost to pursue an adversary proceeding, the
likelihood of success of such efforts, and the results of his
research into the viability of such a claim, Attorney Strouse
failed to explain matters sufficiently to enable E.J. and S.J.
to make informed decisions regarding the representation. In so
doing, Attorney Strouse violated SCR 20:1.4(b)4 (Count Seven).
In addition, the referee concluded that, by failing to respond
to the multiple requests for information from E.J. and S.J.,
including letters dated November 7, 2009, January 4, 2010,
January 31, 2010, and February 4, 2010, Attorney Strouse
violated SCR 20:1.4(a)(4)5 (Count Eight).
¶49 Attorney Strouse appeals, claiming, inter alia, that
the referee's findings are insufficient to support these charges
and that his credibility determinations are clearly erroneous.
¶50 The referee found that that E.J. and S.J. sought
Attorney Strouse's representation in filing for Chapter 7
bankruptcy and to discharge E.J.'s student loan debt. The
referee found that "[b]oth [E.J. and S.J.] offered credible
testimony there was such an agreement." The referee explicitly
stated that, "[h]aving weighed the contradictory testimony and
evidence on the issue of the scope of representation, I did not
find the testimony of Strouse to be credible." (Emphasis
4
SCR 20:1.4(b) provides that "[a] lawyer shall explain a
matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation."
5
SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for information."
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No. 2013AP1619-D
added.) The referee found that Attorney Strouse failed to
respond to E.J.'s and S.J.'s repeated requests for information
related to the discharge of the student loan. The referee found
that Attorney Strouse never consulted with E.J. and S.J.
concerning the means by which the objectives of his
representation were to be pursued to secure the discharge of the
student loan. The referee found that Attorney Strouse never
explained to E.J. and S.J. the issues associated with the
discharge of the student loan debt, the costs of pursuing any
adversary proceedings, the likelihood of success, or the results
of any research he had done. The referee found that Attorney
Strouse never explained matters sufficiently to E.J. and S.J. to
enable them to make informed decisions regarding the student
loan discharge. The evidence supports these findings and we
adopt them.
¶51 Attorney Strouse contends that this is not enough and
proceeds to outline a number of additional factual findings he
thinks the referee should have made. He reminds the court that
the "testimony, documentation, and argument the parties
presented to Referee Ferguson was substantial and hotly
contested in many respects." He claims that Referee Ferguson
failed to make necessary credibility determinations or to
include specific findings of fact to support his conclusions of
law. He suggests that Referee Ferguson's finding that he "did
not find the testimony of Strouse to be credible" is somehow
inadequate and "does not go to the merits of the parties'
contested arguments."
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No. 2013AP1619-D
¶52 From our perspective, Attorney Strouse simply
disagrees with the referee's credibility determinations, as
evidenced by his claim that it is "contrary to the evidence."
He suggests that the referee should have made a different
credibility determination. Attorney Strouse states:
[E.J.'s] credibility must be doubted in this respect
as well as others concerning the representation.
First, she has a mental condition that affects memory
and ability to remember the dates of events. This was
demonstrated numerous times throughout the hearing.
She denied meeting with Strouse on July 22, 2009,
which was corroborated by Strouse's calendar and the
intake questionnaire that was completed and dated by
her. She could not recall the date of the meeting
between [E.J. and S.J.] and Strouse on September 12,
2009, to sign the bankruptcy petition. She denied
meeting with Strouse on January 20, 2009, an event
listed on Strouse's calendar maintained in the normal
course of business. Further, she was fixated on the
adversary proceeding as the method to discharge her
student loans. This is demonstrated in the fact that
she brought case law with her at the initial meeting
on the issue, allegedly other case law in a subsequent
meeting, and in her written communications to Strouse.
(Record citations omitted.) Attorney Strouse thus claims that
he is more credible than E.J. He asks the court to find Referee
Ferguson's credibility determination with respect to E.J.
clearly erroneous.
¶53 We reject this invitation to disregard the referee's
credibility determination. The referee is the ultimate arbiter
of the facts and credibility of witnesses and there is no reason
to deem these findings clearly erroneous. E.J. was very
forthright in her testimony about the fact that a medical
condition affected her ability to recall specific details such
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No. 2013AP1619-D
as dates, but her testimony as to the substance of what occurred
was clear and bolstered by documentary evidence, including
letters to Attorney Strouse. The referee's findings of fact and
conclusions of law relating to this matter are substantiated by
clear and convincing evidence from the record and we adopt them.
¶54 We turn to the question of appropriate discipline.
The OLR sought and the referee recommends a 60-day suspension.
Attorney Strouse seeks a private reprimand or, at most, a public
reprimand. Attorney Strouse reasons that the matter of F.E.
involved minor technical violations and that the other
allegations are similarly de minimus.
¶55 Even with our decision to dismiss the alleged
violation of SCR 20:8.4(c) (Count Four), the record before this
court and the concept of progressive discipline support a 60-day
suspension. The record here suggests that Attorney Strouse is a
busy, aggressive lawyer who serves an important role in the
Milwaukee legal community, providing affordable bankruptcy
representation. It bears noting that Attorney Strouse
successfully obtained bankruptcy discharges for all the clients
at issue in this proceeding. We also accept and acknowledge the
mitigating fact that Attorney Strouse has taken steps to
establish better written fee communications in his office.
However, the record before us also reveals a persistent pattern
of failure to abide by the requirements of our rules of
professional conduct. Attorney Strouse has thrice been publicly
reprimanded by this court, once for conduct that also resulted
in being suspended by a bankruptcy court.
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No. 2013AP1619-D
¶56 While the misconduct committed in this matter is not
identical, we observe a continuing pattern of disregard of
supreme court rule requirements. Representation anticipated to
exceed $1,000 requires a written fee communication. See
SCR 20:1.5. Unilateral changes to fees charged to clients
certainly require more than a single line on an invoice. We
note, with some concern, repeated discrepancies between
disclosures on bankruptcy filings and invoices submitted to
clients, a factor that adds to client confusion. As the referee
observed, "by failing to accept responsibility for his actions
and attempting to shift the blame to others for the poor
handling of these matters, Attorney Strouse demonstrates that he
lacks both remorse and insight into the impact of his repeated
violations on his clients and other third parties."
¶57 We acknowledge that none of the cases cited by the
parties are directly on point. This is not unusual in
disciplinary matters. We find In re Disciplinary Proceedings
Against Kitchen, 2004 WI 83, 273 Wis. 2d 279, 682 N.W.2d 780provides useful guidance, and ultimately, we accept the
referee's recommendation for a 60-day suspension as consistent
with the principles of progressive discipline.
¶58 Finally, we consider Attorney Strouse's objection to
the costs of this proceeding. We consider the factors set forth
in SCR 22.24(1m), which include the number of counts charged,
contested, and proven; the nature of the misconduct; the level
of discipline sought and recommended; cooperation with the OLR;
prior discipline; and other relevant circumstances. We are not
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No. 2013AP1619-D
persuaded that this scope of the appeal was enlarged due to
Referee Ferguson's insufficient credibility determinations or
failure to discuss the parties' arguments. Full costs are
appropriate in this vigorously litigated case.
¶59 IT IS ORDERED that the license of Paul A. Strouse to
practice law in Wisconsin is suspended for a period of 60 days,
effective August 14, 2015.
¶60 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Paul A. Strouse shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $67,562.12.
¶61 IT IS FURTHER ORDERED that Paul A. Strouse shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶62 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
¶63 ANN WALSH BRADLEY, J., did not participate.
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No. 2013AP1619-D
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