OLR v. Stanley Whitmore Davis ( 2020 )

2020 WI 48SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2417-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Stanley Whitmore Davis, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Stanley Whitmore Davis,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST DAVIS
OPINION FILED: June 12, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 48NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2417-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Stanley Whitmore Davis,
Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, JUN 12, 2020
Sheila T. Reiff
v. Clerk of Supreme Court
Stanley Whitmore Davis,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Referee John B. Murphy's
recommendation that Attorney Stanley Whitmore Davis be declared
in default and his license to practice law in Wisconsin
suspended for one year for professional misconduct. The referee
also recommended that Attorney Davis pay $2,500 in restitution
to G.P. and $3,750 to the Wisconsin Lawyers' Fund for Client
Protection ("the Fund"), and that he pay the full costs of the
proceeding, which are $2,601.62 as of January 15, 2020.
No. 2018AP2417-D
¶2 We declare Attorney Davis to be in default. We agree
with the referee that the record establishes that Attorney Davis
has committed 36 counts of professional misconduct, warranting a
one-year suspension of his license to practice law in Wisconsin.
We also agree that Attorney Davis should pay restitution to G.P.
and to the Fund and we direct him to pay the full costs of this
proceeding.1
¶3 Attorney Davis was admitted to practice law in
Wisconsin in 1998. He practiced in the Madison area. On
August 15, 2018, we temporarily suspended Attorney Davis' law
license for non-cooperation with an Office of Lawyer Regulation
(OLR) investigation.2 On November 2, 2018, his law license was
also administratively suspended for non-payment of state bar
Attorney Davis is the subject of another pending
1
disciplinary matter, presently before a referee. In re
Disciplinary Proceedings Against Stanley Whitmore Davis, Case
No. 2019AP2405-D. After the court finalized this decision but
before our opinion was released, Attorney Davis filed a Petition
for Revocation by Consent in this court. He sought to resolve
this disciplinary proceeding together with his other pending
disciplinary matters. Because the issuance of this decision was
imminent, we dismissed the Petition for Revocation by Consent by
separate order of this court. The other pending disciplinary
matters involving Attorney Davis will proceed in due course.
On January 8, 2018, this court temporarily suspended
2
Attorney Davis' Wisconsin law license for failure to cooperate
with the OLR. OLR v. Davis, No. 2017XX1617, unpublished order
(S. Ct. Jan. 8, 2018). That suspension was lifted on March 2,
2018, after the OLR received Attorney Davis' response to a
pending grievance. Thereafter, Attorney Davis failed to respond
to the OLR's request for additional information. On August 15,
2018, the court again temporarily suspended Attorney Davis'
license to practice law for his noncooperation. OLR v. Davis,
No. 2018XX768, unpublished order (S. Ct. Aug. 15, 2018).
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No. 2018AP2417-D
dues and failure to submit a trust account certification. On
June 5, 2019, he was administratively suspended for failure to
complete mandatory continuing education requirements. His law
license remains suspended.
¶4 On December 20, 2018, the OLR filed its initial
disciplinary complaint against Attorney Davis, alleging 20
counts of professional misconduct. The complaint was personally
served upon Attorney Davis on January 14, 2019. Attorney Davis
did not file an answer. Referee Murphy was appointed on
February 1, 2019 and on February 9, 2019, the referee ordered
the parties to appear by telephone for a February 26, 2019
scheduling conference. Attorney Davis was also ordered to
provide a contact telephone number, in advance. Attorney Davis
failed to provide a telephone number and failed to appear at the
scheduling conference. The OLR requested and received leave to
file an amended complaint and another scheduling conference was
set for May 14, 2019.
¶5 On March 19, 2019, the OLR filed an amended complaint
alleging 26 counts of misconduct. Attorney Davis failed to
answer, failed to provide a telephone number, and did not appear
at the follow-up scheduling conference.
¶6 On August 6, 2019, the OLR filed a second amended
complaint alleging 36 counts of misconduct. Attorney Davis did
not answer. On September 19, 2019, the OLR filed a notice of
motion and motion for summary judgment. Again, Attorney Davis
did not respond.
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No. 2018AP2417-D
¶7 On October 15, 2019, the referee, citing Wis. Stat.
§ 801.11(1), directed the OLR to personally serve Attorney Davis
with the first and second amended complaints.3 An adult woman
with the surname Davis accepted service of the complaints on
October 24, 2019. Additional personal service was attempted on
October 25, 2019. The complaints were accepted by a person
believed to be Attorney Davis' father. The two amended
complaints were also mailed to all three addresses associated
with Attorney Davis. The referee found that it "is undeniably
clear that Davis has no interest in objecting to any of the
allegations made against him by the OLR though he has been given
many opportunities to do so."
¶8 On December 27, 2019, the referee issued his report,
recommending the court grant the OLR's motion and deem Attorney
Davis in default. The referee found that based on the facts
alleged in the second amended complaint and Attorney Davis'
failure to answer the second amended complaint, or otherwise
respond or appear in this matter, the OLR has met its burden of
proof with respect to proving all 36 counts of misconduct
alleged in the second amended complaint. The referee
recommended that Attorney Davis' license to practice law in
Wisconsin be suspended for one year, that he be ordered to pay
restitution to one client, G.P., and to the Fund, and assessed
the costs of this proceeding.
3 The OLR had served the two amended complaints by mail.
4
No. 2018AP2417-D
¶9 Attorney Davis did not appeal the referee's
recommendation so we consider this matter pursuant to
SCR 22.17(2).4 A referee's findings of fact are affirmed unless
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. The court may impose
whatever sanction it sees fit, regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶10 We agree that reasonable diligence was exercised,
attempting to serve Attorney Davis by personal service in the
manner set forth in Wis. Stat. § 801.11(1) and by service under
SCR 22.13(1), which provides that if, with reasonable diligence,
the respondent cannot be served under Wis. Stat.
§ 801.11(1)(a) or (b), "service may be made by sending by
certified mail an authenticated copy of the complaint and order
to answer to the most recent address furnished by the respondent
to the state bar."
¶11 As the second amended complaint reflects, Attorney
Davis' misconduct was serious. It involves 36 counts of
4 SCR 22.17(2) provides:
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.
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No. 2018AP2417-D
misconduct and eight client matters. Attorney Davis missed
deadlines, failed to pursue client claims, lied to clients about
the status of cases, failed to return retainers, failed to
advise clients when his law license was suspended, then failed
to respond to grievances or otherwise cooperate with the OLR.
The referee described him as "absolutely uncooperative." As an
example, one client lost her right to pursue a Title VII claim
because of Attorney Davis' failure to act. We accept the
referee's conclusions, based on the second amended complaint,
that Attorney Davis violated SCRs 20:1.15 (Competence, Count 27);
20:1.36 (Diligence, Counts 1, 5, 10, 13, and 21); 20:1.4(a)(3)7
(Communication, Count 2); 20:1.4(a)(2)8 (Communication, Count
22); 20:1.5(b)(1)9 (Fees, Count 14); 20:1.5(c)10 (Fees, Count
SCR 20:1.1 provides:
5 "A lawyer shall provide competent
representation to a client. Competent representation required
the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
SCR 20:1.3 provides: "A lawyer shall act with reasonable
6
diligence and promptness in representing a client."
SCR 20:1.4(a)(3) provides: "A lawyer shall keep the client
7
reasonably informed about the status of the matter."
SCR 20:1.4(a)(2) provides:
8 "A lawyer shall reasonably
consult with the client about the means by which the client's
objectives are to be accomplished."
9 SCR 20:1.5(b)(1) 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, except when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
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No. 2018AP2417-D
15); 20:1.16(d)11 (Terminating Representation, Counts 3, 11, and
29); 20:3.4(c)12 (Fairness to Opposing Counsel and the Tribunal,
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.
10 SCR 20:1.5(c) provides:
A fee may be contingent on the outcome of the
matter for which the service is rendered, except in a
matter in which a contingent fee is prohibited by par.
(d) or other law. A contingent fee agreement shall be
in a writing signed by the client, and shall state the
method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the
lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the
recovery; and whether such expenses are to be deducted
before or after the contingent fee is calculated. The
agreement must clearly notify the client of any
expenses for which the client will be liable whether
or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer
shall provide the client with a written statement
stating the outcome of the matter and if there is a
recovery, showing the remittance to the client and the
method of its determination.
11 SCR 20:1.16(d) provides:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and
refunding any advance payment of fee or expense that
has not been earned or incurred.
12 SCR 20:3.4(c) provides: "A lawyer shall not knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists."
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No. 2018AP2417-D
Count 31); and 20:8.4(c)13 (Misconduct, Count 28). In addition,
by continuing to represent clients and provide legal advice
while his law license was suspended, Attorney Davis violated
SCR 10.03(6),14 SCR 22.26(2),15 and SCR 31.10(1),16 enforceable
SCR 20:8.4(c) provides:
13 "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
14 SCR 10.03(6) provides:
If the annual dues or assessments of any member
remain unpaid 120 days after the payment is due, the
membership of the member may be suspended in the
manner provided in the bylaws; and no person whose
membership is so suspended for nonpayment of dues or
assessments may practice law during the period of the
suspension.
15 SCR 22.26(2) provides:
An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity
customarily done by law students, law clerks, or other
paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.
16 SCR 31.10(1) provides:
If a lawyer fails to comply with the attendance
requirement of SCR 31.02, fails to comply with the
reporting requirement of SCR 31.03(1), or fails to pay
the late fee under SCR 31.03(2), the board shall serve
a notice of noncompliance on the lawyer. This notice
shall advise the lawyer that the lawyer's state bar
membership shall be automatically suspended for
failing to file evidence of compliance or to pay the
late fee within 60 days after service of the notice.
The board shall certify the names of all lawyers so
suspended under this rule to the clerk of the supreme
court, all supreme court justices, all court of
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No. 2018AP2417-D
via SCR 20:8.4(f)17 (Counts 9, 17, 24, 26, 33 and 35); and, by
failing to notify clients and/or the court and opposing counsel
of his license suspension he violated SCR 22.26(1)(a)-(c),18
appeals and circuit court judges, all circuit court
commissioners appointed under SCR 75.02(1) in this
state, all circuit court clerks, all juvenile court
clerks, all registers in probate, the executive
director of the state bar of Wisconsin, the Wisconsin
State Public Defender's Office, and the clerks of the
federal district courts in Wisconsin. A lawyer shall
not engage in the practice of law in Wisconsin while
his or her state bar membership is suspended under
this rule.
SCR 20:8.4(f) provides:
17 "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
18 SCR 22.26(1)(a)-(c) provides:
(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:
(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.
(b) Advise the clients to seek legal advice of
their choice elsewhere.
(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.
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No. 2018AP2417-D
enforceable via SCR 20:8.4(f) (Counts 6, 8, 16, 19, 23, and 32).
Finally, by failing to cooperate with the OLR Attorney Davis
violated SCR 22.03(2)19 and/or SCR 22.03(6),20 enforceable via
SCR 20:8.4(h)21 (Counts 4, 7, 12, 18, 20, 25, 30, 34, and 36).
¶12 We next consider the appropriate sanction. The first
complaint filed against Attorney Davis sought a 90-day
suspension. The first amended complaint reflected additional
misconduct and requested a nine-month suspension. The second
amended complaint added six more counts of misconduct and sought
a one-year suspension. The OLR bases this recommendation on In
19 SCR 22.03(2) provides:
Upon commencing an investigation, the director
shall notify the respondent of the matter being
investigated unless in the opinion of the director the
investigation of the matter requires otherwise. The
respondent shall fully and fairly disclose all facts
and circumstances pertaining to the alleged misconduct
within 20 days after being served by ordinary mail a
request for a written response. The director may
allow additional time to respond. Following receipt
of the response, the director may conduct further
investigation and may compel the respondent to answer
questions, furnish documents, and present any
information deemed relevant to the investigation.
20SCR 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."
21SCR 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 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."
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No. 2018AP2417-D
re Disciplinary Proceedings Against Chavez, 2015 WI 39, 361
Wis. 2d 636, 862 N.W.2d 142. Attorney Chavez's law license was
suspended for one year for continuing to accept legal work after
knowing he faced a license suspension, failing to inform clients
of his suspension, abandoning clients, then failing to
participate in or cooperate with the disciplinary proceeding.
The OLR states that it considers Attorney Davis' misconduct less
serious than that in In re Disciplinary Proceedings Against
Tully, 2005 WI 100, 283 Wis. 2d 124, 699 N.W.2d 882, where the
attorney, who had no prior discipline, was suspended for two
years for 29 counts of misconduct, including failure to act on
her clients' behalf, failure to respond to her clients,
practicing while her license was suspended, lying to the Board
of Bar Examiners in her reinstatement petition, and failing to
cooperate in the disciplinary investigation. Certainly, a
lengthy suspension is appropriate. As Attorney Davis has been
suspended since August 15, 2018, we will accept the referee's
recommendation, and impose a one-year suspension on Attorney
Davis' law license.
¶13 We further agree that Attorney Davis shall make
restitution in the amount of $2,500 to G.P. and $3,750 to the
Wisconsin Lawyers' Fund for Client Protection. We note with
some concern that the OLR's restitution statement states there
was "no reasonably ascertainable amount of restitution" with
respect to Attorney Davis' representation of C.B. on the
employment matter, or his representation of T.F., O.O., R.P.,
and T.M. We recognize that Attorney Davis' utter refusal to
11
No. 2018AP2417-D
cooperate with the OLR may account for this troubling
conclusion. We emphasize that if Attorney Davis ever seeks
reinstatement, he will be required to satisfy to this court that
he has addressed the question of restitution. See, e.g., SCR
22.29(4)(c) and (4m). Finally, we agree with the referee that
Attorney Davis should bear the full costs of this proceeding.
¶14 IT IS ORDERED that the license of Stanley Whitmore
Davis to practice law in Wisconsin is suspended for a period of
one year, effective the date of this order.
¶15 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Stanley Whitmore Davis shall pay restitution to
G.P. in the amount of $2,500 and to the Wisconsin Lawyers' Fund
for Client Protection in the amount of $3,750.
¶16 IT IS FURTHER ORDERED that restitution to client G.P.
is to be completed prior to paying restitution to the Wisconsin
Lawyers' Fund for Client Protection, and restitution to the
Wisconsin Lawyers' Fund for Client Protection is, in turn, to be
completed before paying costs to the Office of Lawyer
Regulation.
¶17 IS FURTHER ORDERED that within 60 days of the date of
this order, Stanley Whitmore Davis shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$2,601.62, as of January 15, 2020.
¶18 IT IS FURTHER ORDERED that, to the extent he has not
already done so, Stanley Whitmore Davis shall comply with the
provisions of SCR 22.26 concerning the duties of an attorney
whose license to practice law has been suspended.
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No. 2018AP2417-D
¶19 IT IS FURTHER ORDERED that the temporary suspension of
Stanley Whitmore Davis' license to practice law, entered on
August 15, 2018, is hereby lifted.
¶20 IT IS FURTHER ORDERED that the administrative
suspensions of Stanley Whitmore Davis due to his failure to pay
mandatory bar dues, failure to file a trust account
certification, and failure to comply with continuing legal
education requirements, will remain in effect until each reason
for the administrative suspension has been rectified, pursuant
to SCR 22.28(1).
¶21 IT IS FURTHER ORDERED that as a condition of
reinstatement of his license to practice law in Wisconsin,
Stanley Whitmore Davis will be required to demonstrate he has
made full restitution to or settled all claims of all persons
harmed by the misconduct that is the subject of this proceeding,
as set forth in the second amended complaint.
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No. 2018AP2417-D
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