Office of Lawyer Regulation v. Robert Paul D'Arruda ( 2013 )

2013 WI 90
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2338-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Robert Paul D'Arruda, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Robert Paul D'Arruda,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST D’ARRUDA
OPINION FILED: November 20, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2013 WI 90
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2338-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Robert Paul D'Arruda, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
NOV 20, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Robert Paul D'Arruda,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. We review, pursuant to SCR 22.17(2),1 the
report of the referee, Richard C. Ninneman, recommending the
1
SCR 22.17(2) states:
If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.
No. 2012AP2338-D
court publicly reprimand Attorney Robert Paul D'Arruda for
professional misconduct. No appeal has been filed.
¶2 We approve and adopt the referee's findings of fact
and conclusions of law. We agree that Attorney D'Arruda's
misconduct warrants a public reprimand, and we direct Attorney
D'Arruda to reimburse one former client, as provided herein. We
impose the full costs of this proceeding, which total $6,014.07
as of September 4, 2013.
¶3 Attorney D'Arruda was licensed to practice law in
Wisconsin in 1993. He is a criminal defense attorney from
Milwaukee, Wisconsin. Attorney D'Arruda was privately
reprimanded in 2011 for misconduct in two client matters
involving failure to provide clients with a written fee
agreement, failure to provide clients with an itemized statement
or accounting for services, and failure to respond in a timely
manner to clients' grievances and Office of Lawyer Regulation
(OLR) requests for information.
¶4 On October 25, 2012, the OLR filed a 14-count
complaint alleging that Attorney D'Arruda committed misconduct
in connection with four client matters. Attorney D'Arruda filed
an answer admitting allegations related to ten of the counts.
On June 28, 2013, the parties entered into a stipulation
reflecting these concessions. Prior to the hearing, the OLR
voluntarily dismissed one of the remaining counts.
¶5 On July 25, 2013, the referee conducted an evidentiary
hearing. Attorney D'Arruda testified on his own behalf and
called character witnesses. On August 15, 2013, the referee
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No. 2012AP2338-D
filed a report and recommendation accepting the parties'
stipulation and, with respect to the remaining three counts of
misconduct, concluding Attorney D'Arruda engaged in misconduct
on two of the counts and recommending dismissal of the third.
The referee recommended the court impose a public reprimand and
order restitution to one client. No appeal was filed.
¶6 This court will affirm a referee's findings of fact
unless they are clearly erroneous; conclusions of law are
reviewed de novo. See In re Disciplinary Proceedings Against
Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. This
court is free to impose whatever discipline it deems
appropriate, 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.
¶7 The referee accepted the parties' stipulation that
Attorney D'Arruda failed to provide his clients H.A. and A.M. a
written communication explaining the basis or rate of his fee
and the purpose and effect of the advanced fee he accepted in
violation of SCRs 20:1.5(b)(l) and (2)2 (Count 1); failed to
2
SCRs 20:1.5(b)(1) and (2) state as follows:
(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, 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.
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No. 2012AP2338-D
deposit funds in a trust account until earned, and failed to
refund an unearned $500 fee upon request in violation of
SCRs 20:1.15(b)(4)3 (Count 2) and 20:1.16(d)4 (Count 3); and
failed to timely respond to the ensuing grievance in violation
of SCR 22.03(2),5 enforceable via SCR 20:8.4(h)6 (Count 4).
(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.
3
SCR 20:1.15(b)(4) states: Unearned fees and cost
advances.
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.
4
SCR 20:1.16(d) provides as follows:
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.
5
SCR 22.03(2) states:
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
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No. 2012AP2338-D
Record evidence indicates the Wisconsin Lawyers' Fund for Client
Protection (the Fund) subsequently reimbursed Attorney
D'Arruda's client $500 for an advanced fee and Attorney D'Arruda
testified that he, in turn, reimbursed the Fund such that
restitution in this matter is not warranted.
¶8 The referee also accepted the parties' stipulation
relating to the matter of B.F., concluding that Attorney
D'Arruda failed to turn over B.F.'s file and discovery materials
to successor appellate counsel after his representation was
terminated in January 2011, in violation of SCR 20:1.16(d)
(Count 12); and failed to provide a timely written response to
the B.F. grievance in violation of SCR 22.03(2), enforceable via
SCR 20:8.4(h) (Count 13).
¶9 The referee also accepted the parties' stipulation
that Attorney D'Arruda failed to respond to multiple requests by
the OLR regarding a grievance filed by another former client,
D.L. The referee thus concluded that Attorney D'Arruda violated
SCR 22.03(2), enforceable via SCR 20:8.4(h), based on his delay
in responding to the grievance (Count 14).
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
SCR 20:8.4(h) states 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); . . . ."
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No. 2012AP2338-D
¶10 Attorney D'Arruda stipulated to some, but not all of
the allegations pertaining to his representation of L.N.
¶11 L.N. hired Attorney D'Arruda in July of 2009 to
represent her in connection with a police investigation in
Racine County. L.N. paid Attorney D'Arruda $750 in 2009 and
paid him an additional $1,500 in 2010. On May 17, 2010, the
State charged L.N. with a felony.
¶12 Between October 26, 2010, and August 30, 2011, L.N.'s
case was called for trial several times. Each time, the court
convened a status conference instead. L.N. was unhappy with the
delay and eventually filed a grievance with the OLR. In August
2011 L.N. retained new counsel who arranged a plea deal on her
behalf.
¶13 The OLR alleged that Attorney D'Arruda failed to
promptly pursue resolution of L.N.'s case from November 2010
until his representation was terminated in July or August 2011
(Count 5), failed to inform L.N. that he would not appear at all
scheduled court dates (Count 6), failed to respond to L.N.'s
phone calls between March 2011 and July 2011 (Count 7), failed
to give L.N. a final accounting and a refund of any unearned
advanced fees and required notices upon the termination of his
representation (Count 8), failed to refund unearned fees (Count
9), and failed to timely respond in writing to L.N.'s grievance
(Count 10).
¶14 Attorney D'Arruda stipulated to the misconduct alleged
in Counts 6, 8, and 10, and the referee accepted that
stipulation. Attorney D'Arruda contested the OLR's claims that
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No. 2012AP2338-D
he failed to diligently pursue the case, failed to respond to
phone calls, and failed to refund unearned fees.
¶15 Attorney D'Arruda testified that he was prepared to
try L.N.'s case as early as October 26, 2010. However, when the
case was called on October 26, 2010, the prosecutor was in
another trial and the court continued the case. Attorney
D'Arruda admits that he did not appear at a February 15, 2011
trial date because he was in another trial in Milwaukee County.
He explained that he sent a message by facsimile to both the
Racine County District Attorney's office and the court. The
message did not reach the court because Attorney D'Arruda used
an incorrect fax number, but the prosecutor received the message
and the court adjourned the matter. On May 10, 2011, the trial
date was changed to a scheduling conference because of a lack of
communication between Attorney D'Arruda and the district
attorney.
¶16 The referee declined to hold Attorney D'Arruda solely
responsible for these delays in advancing the L.N. matter to
resolution. The referee thus concluded that the OLR failed to
prove this claim by clear, satisfactory, and convincing evidence
and recommended the court dismiss Count 5.
¶17 The referee found that facts set forth in the
stipulation clearly established that Attorney D'Arruda failed to
respond to L.N.'s phone calls during the relevant time period
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No. 2012AP2338-D
and thus concluded that Attorney D'Arruda violated
SCR 20:l.4(a)(4)7 (Count 7).
¶18 Regarding the alleged failure to refund unearned fees,
the referee noted that L.N. paid Attorney D'Arruda $2,250 and
the record evidence indicates the cost of the legal services
Attorney D'Arruda provided exceeded that payment. However, the
June 2, 2010 fee agreement between L.N. and Attorney D'Arruda's
law firm stated that L.N. would be provided with "a written
accounting of all fees incurred in the matter and a refund of
any advanced fees, if any, that have not been earned or advanced
costs that have not been used." Attorney D'Arruda testified
that he was willing to pay $250 as a refund to L.N. for unearned
fees, and the referee recommended this court order Attorney
D'Arruda to do so.
¶19 We accept the referee's conclusions and
recommendations regarding the L.N. matter including the
dismissal of Count 5 of the complaint.
¶20 The referee then considered the appropriate discipline
for Attorney D'Arruda's misconduct. The OLR sought a 60-day
suspension and restitution to L.N. in the amount of $250 for
unearned advanced fees. Attorney D'Arruda asked for a public
reprimand.
¶21 The referee recommends this court impose a public
reprimand. The referee acknowledges that Attorney D'Arruda
7
SCR 20:1.4(a)(4) provides that a lawyer shall "promptly
comply with reasonable requests by the client for
information; . . . ."
8
No. 2012AP2338-D
previously received a private reprimand, but noted the
misconduct in this case occurred at a time when Attorney
D'Arruda faced multiple outside pressures including dissolution
of his small law firm, divorce, financial pressures, and an
excessive caseload. The referee explicitly noted that "[f]rom
the testimony, these pressures and distractions are behind him."
The referee noted that character witnesses described Attorney
D'Arruda as a highly experienced criminal lawyer who is
"competent, dignified and respected." The referee was mindful
that "[a] suspension at this time and the resulting closure of
his sole practitioner office for several months could be
devastating to his law practice." We agree.
¶22 Finally, we turn to the issue of costs. Our general
policy is to impose the full costs of a disciplinary proceeding
on the respondent attorney who is found to have committed
professional misconduct. See SCR 22.24(1m). We see no reason
to depart from that policy in this matter.
¶23 Accordingly, we adopt the referee's findings of fact
and conclusions of law and determine that a public reprimand is
the appropriate discipline for Attorney D'Arruda's professional
misconduct, together with restitution to L.N., and payment of
full costs.
¶24 IT IS ORDERED that Attorney Robert Paul D'Arruda is
publicly reprimanded for his professional misconduct.
¶25 IT IS FURTHER ORDERED that if he has not already done
so, within 60 days of the date of this order, Attorney Robert
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No. 2012AP2338-D
Paul D'Arruda shall pay $250 in restitution to his former
client, L.N.
¶26 IT IS FURTHER ORDERED that, within 60 days of the date
of this order, Attorney Robert Paul D'Arruda shall pay to the
Office of Lawyer Regulation the costs of this proceeding.
¶27 IT IS FURTHER ORDERED that restitution is to be
completed before payment of costs to the Office of Lawyer
Regulation.
¶28 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2012AP2338-D
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