Office of Lawyer Regulation v. James G. Moldenhauer , 369 Wis. 2d 1 ( 2016 )

2016 WI 43
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1966-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against James G. Moldenhauer, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
James G. Moldenhauer,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MOLDENHAUER
OPINION FILED: May 24, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 43
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP1966-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against James G. Moldenhauer, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
MAY 24, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
James G. Moldenhauer,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review a stipulation filed pursuant
to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer
Regulation (OLR) and Attorney James G. Moldenhauer. In the
stipulation, Attorney Moldenhauer agrees that he engaged in two
counts of misconduct involving his clients, G.C. (now deceased),
and G.C.'s wife, L.C. (collectively, the C.s.). Attorney
Moldenhauer also agrees that a 60-day suspension of his license
No. 2015AP1966-D
to practice law in Wisconsin is an appropriate sanction for his
misconduct. The OLR does not request restitution, and it also
does not seek the imposition of costs against Attorney
Moldenhauer.
¶2 After careful review of the matter, we approve the
stipulation and agree that a 60-day suspension of Attorney
Moldenhauer's license to practice law is an appropriate
sanction. Because this matter is being resolved without the
appointment of a referee, we do not impose any costs on Attorney
Moldenhauer. No restitution was sought and none is ordered.
¶3 Attorney Moldenhauer was admitted to practice law in
Wisconsin in 1982. The most recent address furnished by
Attorney Moldenhauer to the State Bar of Wisconsin is in Eau
Claire, Wisconsin.
¶4 Attorney Moldenhauer has a disciplinary history. In
1996, Attorney Moldenhauer consented to a private reprimand for
misconduct consisting of failing to act with reasonable
diligence, failing to communicate properly with a client, and
failing to render a full accounting of estate funds in respose
to a client's request. Private Reprimand 96-28. In 2006,
Attorney Moldenhauer was publicly reprimanded for misconduct in
two matters. In the first matter, he failed to act with
reasonable diligence, failed to return a client's file, and
failed to cooperate with the OLR's investigation. In the second
matter, he failed to provide his client with an itemized billing
statement, failed to refund the unearned portion of his advanced
fee, and failed to cooperate in the OLR's investigation. Public
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Reprimand of James G. Moldenhauer, 2006-11. In 2008, Attorney
Moldenhauer was publicly reprimanded for misconduct consisting
of failing to communicate properly with a client, failing to act
with reasonable diligence, and failing to obey a court order.
Public Reprimand of James G. Moldenhauer, 2008-01. In 2012,
Attorney Moldenhauer was publicly reprimanded for misconduct
consisting of failing to communicate properly with a client and
failing to act with reasonable diligence. Public Reprimand of
James G. Moldenhauer, 2012-13.
¶5 In September 2015, the OLR filed a complaint alleging
that Attorney Moldenhauer engaged in two counts of misconduct
involving his clients, the C.s. In March 2016, the OLR and
Attorney Moldenhauer filed a stipulation pursuant to SCR 22.12.
We take the following facts from the parties' stipulation.
¶6 In 2009, the C.s. hired Attorney Moldenhauer to
represent them in a Wisconsin Department of Revenue (DOR) tax
matter concerning the 2004 through 2007 tax years. In July
2011, Attorney Moldenhauer filed a petition with the Wisconsin
Tax Appeals Commission (Commission) appealing a DOR decision
that disposed of two cases involving the C.s.
¶7 On October 12, 2011, the Commission sent a Notice of
Telephone Status Conference to Attorney Moldenhauer informing
him that a telephone status conference would be held before a
Commissioner on December 13, 2011 at 10:30 a.m. The notice
stated: "If the Commission is unable to reach you or your
representative by telephone, the conference will proceed, and
the petitions for review will be subject to dismissal, pursuant
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No. 2015AP1966-D
to Wis. Stat. §§ 802.10(7) and 805.03." In a subsequent letter
to the C.s., Attorney Moldenhauer stated that he had received
the Notice of Telephone Status Conference, and that it was not
necessary for them to attend the status conference.
¶8 Attorney Moldenhauer failed to appear for the December
13, 2011 telephone status conference, despite the fact that the
Commission called Attorney Moldenhauer's office four times at or
about the scheduled conference time.
¶9 On December 14, 2011, the Commission sent a Status
Conference Memorandum and Order to Attorney Moldenhauer. This
document confirmed that Attorney Moldenhauer did not appear at
the December 13, 2011 telephone status conference; scheduled a
telephone status conference for December 21, 2011 at 2:30 p.m.;
and warned: "The cases will be dismissed if Petitioners'
attorney is not present for the status conference."
¶10 Attorney Moldenhauer failed to appear for the December
21, 2011 telephone status conference, despite the fact that the
Commission called Attorney Moldenhauer's office four times at or
about the scheduled conference time.
¶11 During the December 21, 2011 telephone status
conference, DOR's attorney appeared and made a motion to dismiss
based on Attorney Moldenhauer's failure to appear and failure to
prosecute. In a December 22, 2011 Order of Dismissal, the
Commission dismissed the petition for review in the cases
involving the C.s.
¶12 A Notice of Appeal Information was attached to the
December 22, 2011 Order of Dismissal. The Notice of Appeal
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No. 2015AP1966-D
Information had a notice of rights for rehearing or judicial
review, the times allowed for each, and filing instructions for
each option.
¶13 Attorney Moldenhauer did not inform the C.s. of the
December 22, 2011 Order of Dismissal, nor did he respond to the
C.s.' telephone calls requesting information regarding the
status of the cases, nor did he file a petition for a rehearing
before the Commission or a petition for judicial review.
¶14 In approximately March 2012, the C.s. contacted the
Commission to inquire about the status of the cases. Also in
approximately March 2012, the C.s. terminated Attorney
Moldenhauer's representation.
¶15 On March 27, 2012, the Commission sent the C.s.,
Attorney Moldenhauer, and DOR's attorney a notice that a
telephone status conference would be held on April 5, 2012 at
11:30 a.m. The C.s., Attorney Moldenhauer, and DOR's attorney
appeared for this telephone status conference. During this
conference, the Commission informed the C.s. that the petition
to review their cases was dismissed due to Attorney
Moldenhauer's failure to appear at the December 13 and 21, 2011
telephone status conferences and that the period of time in
which to file an appeal had expired.
¶16 In August 2012, the C.s. filed a malpractice and
breach of contract action against Attorney Moldenhauer for his
mishandling of their tax matters. The case eventually settled
for $50,000.
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No. 2015AP1966-D
¶17 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Moldenhauer's representation
of the C.s.:
 Count One: By failing to appear for telephone status
conferences on December 13 and 21, 2011, resulting in
dismissal of [the C.s.'] cases, and thereafter by failing
to file a petition for rehearing or a petition for judicial
review, and by otherwise failing to act in furtherance of
[the C.s.'] interests, [Attorney] Moldenhauer violated SCR
20:1.3.1
 Count Two: By failing to keep [the C.s.] reasonably
informed regarding the status of the cases, and by failing
to inform [the C.s.] of the December 22, 2011 Order of
Dismissal, and by failing to respond to [the C.s.']
telephone calls requesting information, [Attorney]
Moldenhauer violated SCR 20:1.4(a)(3) and (4).2
¶18 In the stipulation, Attorney Moldenhauer agrees that
the factual allegations in the OLR's complaint are accurate and
that he committed the professional misconduct charged in the
complaint. The stipulation states that Attorney Moldenhauer
fully understands the misconduct allegations against him, his
1
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
2
SCR 20:1.4(a)(3) and (4) provides: "A lawyer shall:
. . . .(3) keep the client reasonably informed about the status
of the matter; (4) promptly comply with reasonable requests by
the client for information."
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No. 2015AP1966-D
right to contest those allegations, and the ramifications that
would follow from this court's imposition of the stipulated
level of discipline. The stipulation also indicates that
Attorney Moldenhauer understands his right to counsel and is
represented by counsel in this matter. Attorney Moldenhauer
verifies that he is entering into the stipulation knowingly and
voluntarily and that his entry into the stipulation represents
his decision not to contest this matter. Attorney Moldenhauer
agrees in the stipulation that it would be appropriate for this
court to impose a 60-day suspension of his license to practice
law in Wisconsin.
¶19 Having considered this matter, we approve the
stipulation and adopt the stipulated facts and legal conclusions
of professional misconduct. From our independent review of the
matter, we agree that a 60-day suspension of Attorney
Moldenhauer's license to practice law in Wisconsin is an
appropriate sanction. We agree with the OLR's observation in
its memorandum in support of the stipulation that Attorney
Moldenhauer's previous private and public reprimands for similar
misconduct have not impressed upon him the importance of his
ethical obligations. We also note that in its memorandum, the
OLR identifies a number of arguably similar cases in which we
imposed a 60-day suspension, as is requested here. See In re
Disciplinary Proceedings Against Ermert, 2007 WI 10, 298 Wis. 2d
622, 726 N.W.2d 250 (attorney who had been disciplined on five
prior occasions received a 60-day suspension for lack of
diligence, failing to keep a client informed, and
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No. 2015AP1966-D
misrepresentation); In re Disciplinary Proceedings Against
Lister, 2010 WI 108, 329 Wis. 2d 289, 787 N.W.2d 820 (attorney
who had been disciplined on two prior occasions received a 60-
day suspension for lack of diligence, failing to keep a client
informed, failing to forward the client's file to successor
counsel and refund advanced fee payments, and failing to
cooperate with an investigation); In re Disciplinary Proceedings
Against Anderson, 2010 WI 39, 324 Wis. 2d 627, 782 N.W.2d 100
(attorney who had been disciplined on three prior occasions
received a 60–day suspension for lack of diligence, failing to
keep a client informed, and failing to explain matters to a
client); In re Disciplinary Proceedings Against Theobald, 2010
WI 102, 329 Wis. 2d 1, 786 N.W.2d 834 (attorney who had been
disciplined on two prior occasions received a 60–day suspension
for lack of diligence and failing to keep a client informed).
Although no two disciplinary matters are identical, we agree
with the OLR's observation that a 60-day suspension of Attorney
Moldenhauer's law license is consistent with the sanctions
imposed in these arguably similar cases.
¶20 Because Attorney Moldenhauer entered into a
comprehensive stipulation under SCR 22.12, thereby obviating the
need for the appointment of a referee and a full disciplinary
proceeding, we do not impose any costs in this matter.
¶21 Because Attorney Moldenhauer entered into a civil
settlement with the C.s. related to his mishandling of their tax
matters, we agree with the OLR that no restitution is warranted.
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No. 2015AP1966-D
¶22 IT IS ORDERED that the license of James G. Moldenhauer
to practice law in Wisconsin is suspended for a period of 60
days, effective June 27, 2016.
¶23 IT IS FURTHER ORDERED that James G. Moldenhauer shall
comply with the provisions of SCR 22.26 concerning the duties of
an attorney whose license to practice law has been suspended.
¶24 IT IS FURTHER ORDERED that compliance with all
conditions of this decision is required for reinstatement. See
SCR 22.28(2).
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No. 2015AP1966-D
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