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NOTICE This opinion is subject to further editing and
modification. The final version will
appear in the bound volume of the official reports. |
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No.
94-2428-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against MEL CYRAK,
Attorney at Law. |
FILED DEC
18, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
ATTORNEY disciplinary proceeding. Attorney's license suspended.
PER
CURIAM. This is an appeal from the referee's conclusion that
Attorney Mel Cyrak engaged in professional misconduct in his representation of
a bankruptcy client in Texas and by his failure to respond to the Board of
Attorneys Professional Responsibility (Board) in the course of its
investigation of the matter. In
addition to that conclusion, Attorney Cyrak appealed from the referee's
recommendation that his license to practice law in Wisconsin be suspended for
60 days as discipline for that misconduct.
We
determine that Attorney Cyrak's failure to represent his bankruptcy client
diligently and promptly and keep her informed of the status of her legal matter
by responding to her repeated requests for information, as well as his refusal
to respond to the Board in its investigation, warrant the recommended license
suspension. Attorney Cyrak failed to
meet his professional responsibility to the client who retained him and
violated his professional duty to respond to the authority charged with
enforcing the court's rules of attorney professional conduct.
Attorney
Cyrak was admitted to practice law in Wisconsin in 1972 and, until moving to
Texas in 1984, practiced in Madison and Waterloo. He was never admitted to the Texas bar but was admitted to
practice before the U.S. District Court for the Northern District of Texas in
1985. The bankruptcy court of that
district barred him from practice before it in May, 1994 for inattention to his
obligations in representing bankruptcy clients and, while a member of the
Chapter 7 trustee panel, ignoring and repeatedly violating the Federal Rules of
Bankruptcy Procedure, including his consistent failure to file necessary
paperwork timely, and for his failure to refund a portion of his attorney fee
in a case as ordered. His disbarment
from practice before that court was also based on his failure to maintain his
right to practice law in Wisconsin, which was suspended for his noncompliance
with continuing legal education rules, as his admission to the bar of the
bankruptcy court was predicated on his admission to the Wisconsin bar. Attorney Cyrak currently is suspended from
practice in Wisconsin for failure to comply with those rules.
The
referee, Attorney Rudolph P. Regez, made findings of fact following a
disciplinary hearing. In February,
1993, Attorney Cyrak was retained by a Texas resident to file a Chapter 13
bankruptcy petition, for which she gave him $750, $150 for the filing fee and a
$600 advance on his attorney fee.
Attorney Cyrak filed the bankruptcy petition March 3, 1993 and the court
scheduled a meeting of creditors for April 22, 1993.
On
March 31, 1993, the bankruptcy trustee issued a notice of intent to certify the
case for dismissal because certain schedules had not been filed with the
petition and the debtor's statement of financial affairs and preliminary plan
were not filed. The notice stated that
failure to cure the deficiencies within 48 hours would subject the petition to
dismissal without further notice. A
copy of that notice was mailed to Attorney Cyrak and to his client.
When
the deficiencies were not remedied, the bankruptcy court dismissed the client's
case without prejudice April 1, 1993, providing that the case could be refiled
upon payment of the required fee.
Attorney Cyrak did not tell his client of the dismissal until he filed a
second petition on her behalf May 4, 1993.
Three weeks later, the trustee issued another notice of intent to
certify the case for dismissal and subsequently dismissed the case because the
debtor's preliminary plan and mailing matrix did not list the same creditors
and because the debtor failed to provide a certificate of service showing that
the documents had properly been served on all parties in interest.
The
client wrote to Attorney Cyrak five times between May 24 and November 3, 1993
requesting information concerning the status of her petition. She reminded Attorney Cyrak that she had
sent him copies of bills from her creditors but they told her that her case had
been dismissed. When Attorney Cyrak
refused to answer those letters or return her telephone calls, the client
dismissed him as her attorney on November 27, 1993 and demanded return of the
$750 she had paid him. Attorney Cyrak
did not acknowledge or respond to her communication.
Asserting
that she had been subjected to penalties in respect to her mortgage
indebtedness and had incurred additional court expense as a result of Attorney
Cyrak's neglect of her bankruptcy matter, the client filed a grievance with the
State Bar of Texas. Because it lacked
jurisdiction to take any action for the reason that Attorney Cyrak was not
licensed to practice in Texas courts, the Texas State Bar forwarded the
grievance to the Board here. When the
Board informed him of the grievance December 7, 1993 and requested a written
response within 20 days, Attorney Cyrak did not respond. He also made no response to a subsequent
certified letter from the Board informing him of his duty to cooperate with the
Board in its investigation and the consequences of his failure to do so.
On
the basis of those facts, the referee concluded that Attorney Cyrak failed to
respond to reasonable client requests for information concerning the status of
her legal matter, including the fact that her bankruptcy cases had been
dismissed, in violation of SCR 20:1.4(a).[1] Also, by failing to timely file required
documents in the bankruptcy proceedings, which resulted in their dismissal,
Attorney Cyrak violated SCR 20:1.3,[2]
which requires an attorney to act with reasonable diligence and promptness in
representing a client. Finally, the
referee concluded that Attorney Cyrak violated SCR 21.03(4)[3]
and 22.07(2)[4] by failing
to respond to requests of the Board for information concerning the client's
grievance.
As
discipline for that misconduct, the referee recommended that Attorney Cyrak's
license to practice law in Wisconsin be suspended for 60 days. The referee took into account as a
mitigating factor that during the period of time relevant to his misconduct,
Attorney Cyrak had spent considerable time traveling from Texas to Wisconsin to
care for his dependent mother, who had suffered serious heart problems and
underwent surgery. The referee also
noted Attorney Cyrak's cooperation during the disciplinary proceeding itself
and that he has refunded the client's retainer in full.
In
this appeal, Attorney Cyrak contended that the federal bankruptcy court had
exclusive jurisdiction in respect to disciplinary matters concerning his
conduct before that court and, consequently, he was under no obligation to
respond to the disciplinary authority of this court investigating his client's
grievance. There is no merit to that
contention. Our rules specifically
provide that a person admitted to practice law in Wisconsin is subject to the
court's disciplinary authority regardless of the location of the lawyer's
practice. SCR 20:8.5.[5]
Likewise
without merit are Attorney Cyrak's arguments that his conduct in the client's
bankruptcy matter did not constitute a "serious" failure to act with
reasonable diligence and promptness and that his communications with her
regarding the matter were reasonable under the circumstances. While he insisted that his client was aware
that his mother's health problem necessitated his frequent travel to Wisconsin,
Attorney Cyrak never discussed with the client the possibility of another
attorney handling her bankruptcy matter while he was away from Texas.
We
adopt the referee's findings of fact and conclusions of law and determine that
the recommended 60-day license suspension is appropriate discipline to impose
for Attorney Cyrak's professional misconduct established in this
proceeding. We also require Attorney
Cyrak to pay the costs of this proceeding.
IT
IS ORDERED that the license of Attorney Mel Cyrak to practice law in Wisconsin
is suspended for a period of 60 days, effective the date of this order.
IT
IS FURTHER ORDERED that within 60 days of the date of this order Mel Cyrak pay
to the Board of Attorneys Professional Responsibility the costs of this
proceeding, provided that if the costs are not paid within the time specified
and absent a showing to this court of his inability to pay the costs within
that time, the license of Mel Cyrak to practice law in Wisconsin shall remain
suspended until further order of the court.
IT
IS FURTHER ORDERED that Mel Cyrak comply with the provisions of SCR 22.26
concerning the duties of a person whose license to practice law in Wisconsin
has been suspended.
SUPREME COURT OF WISCONSIN
Case No.: 94-2428-D
Complete Title
of Case: In the Matter of Disciplincary
Proceedings Against
Mel Cyrak,
Attorney at Law.
______________________________________
DISCIPLINARY PROCEEDINGS AGAINST CYRAK
Opinion Filed: December 18, 1995
Submitted on Briefs: November 30,
1995
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For Mel Cyrak the cause was submitted on
the brief by Mel Cyrak, Dallas, TX.
For the Board of Attorneys Professional
Responsibility there was a brief by John F. Jenswold, counsel, Madison.
[1] SCR 20:1.4 provides, in pertinent part: Communication
(a) A lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable
requests for information.
[2] SCR 20:1.3 provides: Diligence
A
lawyer shall act with reasonable diligence and promptness in representing a client.
[3] SCR 21.03 provides, in pertinent part: General principles.
. . .
(4) Every attorney shall cooperate with the
board and the administrator in the investigation, prosecution and disposition
of grievances and complaints filed with or by the board or administrator.
[4] SCR 22.07 provides, in pertinent part: Investigation.
. . .
(2) During the course of an investigation, the
administrator or a committee may notify the respondent of the subject being
investigated. The respondent shall
fully and fairly disclose all facts and circumstances pertaining to the alleged
misconduct or medical incapacity within 20 days of being served by ordinary
mail a request for response to a grievance.
The administrator in his or her discretion may allow additional time to
respond. Failure to provide information
or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation
before making a recommendation to the board.