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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.
94-2563-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against DONALD J.
KRAEMER, Attorney at Law. |
FILED MAY
1, 1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
ATTORNEY disciplinary proceeding. Attorney's license suspended.
PER
CURIAM. The Board of Attorneys Professional Responsibility
(Board) appealed from the referee's conclusions of law in respect to the
professional misconduct of Attorney Donald J. Kraemer in having engaged in
sexual contact with a client and from the recommendation that Attorney Kraemer
be publicly reprimanded for that misconduct and receive a private reprimand for
his neglect of that client's legal matter.
The Board contended that the referee's application of a rule of
professional conduct to conduct that occurred several years prior to the
effective date of the rule was improper and that the applicable rules were
those in effect at the time of the misconduct.
We
determine that the applicable professional conduct rules are those that were in
effect when Attorney Kraemer's misconduct occurred, not the rule subsequently
enacted. On the issue of discipline, we
determine that the seriousness of Attorney Kraemer's having unsolicited sexual
contact with a client, together with his neglect of a legal matter, warrants
the suspension of his license to practice law for six months. Attorney Kraemer used his professional
position in the attorney-client relationship for purposes of his own personal
gratification, violating thereby the fundamental duty of trust inherent in the
position he assumed as lawyer for his client.
Attorney
Kraemer was admitted to practice law in Wisconsin in 1962 and practices in
Waukesha. In 1991, the Board publicly
reprimanded him for having had his secretary sign and notarize a client's name
on a notice of personal injury claim to be filed with the state and falsely
stating to the Board in its investigation of the matter that he had no
knowledge of the forgery. That
reprimand was imposed also for his neglect in filing the notice of claim
late. The referee in this proceeding,
Attorney Joan Kessler, made findings of fact based on testimony and evidence
presented at a disciplinary hearing, and those findings are not disputed.
In
May, 1985, dissatisfied with the representation provided by a law firm she had
retained to represent her in a personal injury matter, a woman retained the law
firm at which Attorney Kraemer was employed.
Attorney Kraemer became acquainted with the woman while he was working
on her legal matter. In August, 1987,
when it appeared the personal injury action would go to trial, the matter was
transfered to another attorney in the office but that transfer of
responsibility was not made known to the client. The referee found that a "sexual relationship" began
between Attorney Kraemer and the client, with a number of sexual contacts
between the two occurring at the client's apartment, while the personal injury
matter was pending with the law firm but after Attorney Kraemer ceased any
personal involvement in it.
Sometime
after the client's claim was settled in early March, 1988, Attorney Kraemer
gave the woman expensive jewelry, which she accepted, and sexual intimacy
followed. The referee considered the
gift and its retention as reflecting the voluntary and mutual nature of the
sexual relationship between the client and Attorney Kraemer.
Following
the gift, there was no contact between Attorney Kraemer and the client until
the woman called Attorney Kraemer in 1992 for legal assistance in pursuing
support arrearages and other payments that had been ordered in a paternity
matter concerning the child the woman had in March, 1990, fathered by a man she
had expected to marry. The woman had
called several other attorneys to represent her but was unable to pay the
hourly fees of $120 to $130 they had requested. The woman offered to pay Attorney Kraemer an hourly fee of $25 or
$30 and he agreed to represent her but did not charge her a fee. While representing her in that matter,
sexual contact occurred between them.
In
the course of the representation, Attorney Kraemer obtained but neglected to
record a judgment for child support arrearages and medical payments to which
the woman was entitled. The client
herself recorded a judgment lien prior to the sale of real estate to which it
applied and received the funds to which she was entitled by virtue of the
lien.
In
determining whether Attorney Kraemer's sexual contact with the client in 1988
and 1992 constituted professional misconduct, the referee applied the rule the
court adopted in April, 1995, SCR 20:1.8(k),[1] prohibiting a lawyer's sexual relations with
a client under specified circumstances.
The referee applied that rule to conduct that had occurred long before
its enactment apparently because she understood the Board to have agreed to
that rule's applicability, based on Board counsel's assertion that the 1995
rule codified existing law.
The
referee concluded that the sexual contact Attorney Kraemer had with the client
while his law firm was representing her in the personal injury matter violated
the rule but that the sexual contact three years later during his
representation of her in the paternity matter did not because a "consensual
sexual relationship" existed between them before the attorney-client
relationship in that matter commenced.
The referee based the latter finding, in part, on the fact that after
the personal injury matter was concluded, Attorney Kraemer gave the woman a
present, she accepted it, and sexual contact followed.
The
referee further concluded that Attorney Kraemer's failure to record the
judgment in the paternity matter as a lien against real estate constituted
neglect, in violation of SCR 20:1.3.[2]
The
referee recommended separate discipline for each type of Attorney Kraemer's
misconduct: a public reprimand for the
sexual contact and a private reprimand for the neglect. The referee recognized the seriousness of
sexual contact with a client because of the substantial risk it poses to the
quality of the attorney's legal services and that the client will be imposed
upon unfairly, but she opined that neither of those circumstances was present
here.
In
this appeal, as in the course of the disciplinary proceeding, the Board
asserted that the rules of professional conduct applicable to Attorney
Kraemer's conduct are those that were in force at the time of that
conduct: the general rule prohibiting a
lawyer from representing a client if that representation may be materially
limited by the lawyer's own interests, unless the lawyer reasonably believes
the representation will not be adversely affected and the client consents in
writing after consultation, SCR 20:1.7(b);[3]
and the conduct rule established by this court in the line of cases dealing
with lawyer unsolicited sexual contact with clients. See State v. Heilprin, 59 Wis. 2d 312, 207 N.W. 2d
878 (1973); Disciplinary Proceedings Against Gibson, 124 Wis. 2d 466,
369 N.W.2d 695 (1985); Disciplinary Proceedings Against Hallows, 136
Wis. 2d 72, 401 N.W.2d 557 (1987); Disciplinary Proceedings Against
Woodmansee, 147 Wis. 2d 837, 434 N.W.2d 94 (1989); Disciplinary
Proceedings Against Hanson, 150 Wis. 2d 588, 442 N.W.2d 51 (1989); Disciplinary
Proceedings Against Ridgeway, 158 Wis. 2d 452, 462 N.W.2d 671 (1990); Disciplinary
Proceedings Against Heilprin, 168 Wis. 2d 1, 482 N.W.2d 908 (1992); and Disciplinary Proceedings Against
Strigenz, 185 Wis. 2d 370, 517 N.W.2d 190 (1994). Pursuant to SCR 20:8.4(f),[4]
violation of the latter rule constitutes professional misconduct.
The
Board's contention is correct. Whether
or not the Board correctly characterized the 1995 rule as codifying existing
law in respect to attorney sexual contact with clients, SCR 20:1.8(k) was
adopted with no retrospective effect.
Accordingly, Attorney Kraemer's conduct is governed by SCR 20:1.7(b) and
8.4(f).
Applying
those rules to the facts before us, we conclude that Attorney Kraemer's sexual
contact with his client while she was represented by his law firm and while he
represented her in the paternity matter violated SCR 20:8.4(f). In respect to his failure to file the
judgment lien, we adopt the referee's conclusion that his neglect of the
client's legal matter violated SCR 20:1.3.
On
the issue of discipline, the Board contended that the seriousness of Attorney
Kraemer's misconduct warrants discipline more severe than the reprimands
recommended by the referee. Based on
discipline imposed in prior cases for attorney sexual contact with clients and
in light of Attorney Kraemer's neglect of the client's legal matter and his
prior discipline, the Board argued that the misconduct established in this
proceeding warrants a six-month license suspension. The Board also took the position that the court should not follow
the unprecedented recommendation of separate discipline for different acts of
misconduct, as the court heretofore has considered the totality of an
attorney's misconduct established in a proceeding in determining the discipline
to impose.
In
determining appropriate discipline to impose here, we consider the seriousness
of that misconduct, particularly Attorney Kraemer's sexual contact with his
client while he or his law firm represented her in two different matters at two
different times, as well as the comparatively less serious matter of his
failure to file a judgment lien on her behalf, which resulted in no harm to the
client due to her resourcefulness in protecting her own interests. To assess the seriousness of Attorney
Kraemer's sexual dealings with his client, it is necessary to understand the
nature of what the referee's report referred to as their "consensual
sexual relationship." The nature
and extent of that relationship are disclosed in the undisputed testimony of
Attorney Kraemer and the client in the record before us.
In
1987, when the first sexual contact between Attorney Kraemer and the woman
occurred, the woman was 33 years old, single and childless. Attorney Kraemer was 48, married and had
children. Between 1987 and 1992, the
two had sexual contact on six or seven occasions. Each of those took place during Attorney Kraemer's visits to the
client's apartment, visits he initiated.
The
first time Attorney Kraemer visited her, the client expected he would discuss
the pending personal injury matter.
Instead, Attorney Kraemer talked about marital problems he was
experiencing. During that visit,
Attorney Kraemer initiated sexual contact, which culminated in
intercourse. The client testified that
she initially refused his proposal of sexual contact but agreed because she
thought it was expected of her and that if she did not consent, Attorney
Kraemer would have her personal injury action dismissed.
During
the months that followed, Attorney Kraemer visited the client at her apartment
on five or six occasions, each time telephoning from his automobile at midday
and asking if he could stop by. Most,
if not all, of the sexual contact that occurred during those visits consisted
of masturbatory manipulation by the client on Attorney Kraemer. Two months after the client's personal
injury case settled in early 1988, Attorney Kraemer visited her and gave her a
pearl necklace and earrings and a masturbatory act ensued.
There
was no further contact between Attorney Kraemer and the woman until February,
1992, when the woman asked his assistance in pursuing child support arrearages
and payment of medical bills to which she was entitled pursuant to the
resolution of a paternity proceeding.
Attorney Kraemer went to the client's apartment to pick up an
authorization to permit him access as her attorney to the paternity file and,
while there, he requested that she perform a masturbatory act on him. The client testified that she felt pressured
to comply because she needed legal assistance promptly, as a court hearing was
scheduled for a month thereafter.
After
the paternity matter was completed, Attorney Kraemer called the woman in June,
1993 stating that he wanted two hours alone with her. When the woman told him that her need to care for her child
seldom left her alone, Attorney Kraemer responded, "Work it out. That's an order." The woman did not comply with that demand
and had no further contact with Attorney Kraemer.
Those
facts demonstrate that, rather than a sexual "relationship," the
sexual contact Attorney Kraemer had with his client constituted the recurrent
sexual exploitation of her.
Notwithstanding that the sexual contact was consensual, at least to the
extent that the client did not physically resist, it was unsolicited by her
and, she testified, unwelcome.
Moreover, other than his visits to her apartment, Attorney Kraemer never
met with the client socially.
Except
for the occasion on which he gave her the jewelry, the only time he spent with
her occurred while he or his law firm was representing her in a pending legal
matter. The fact that it was Attorney
Kraemer who initiated the sexual contact in each instance and the nature of
that contact support the conclusion that Attorney Kraemer was using his
professional position representing the woman's interests in pending litigation
to extract sexual favors from her. In
so doing, he impermissibly took advantage of the dominance that often
characterizes the lawyer's position in an attorney-client relationship.
A
lawyer frequently is retained to protect a client's interest that is threatened
or to promote the client's interests by recourse to the legal system. The attorney-client relationship is grounded
in trust: the client's justifiable
expectation that the lawyer retained will act in the client's best interests. Dependent on the lawyer to determine how
best to protect or further those interests the client is apt to accede to the
lawyer's advice and counsel and becomes vulnerable to a lawyer's inappropriate
personal conduct. The prospect of
terminating the lawyer's representation and starting over with new counsel
places the client at a disadvantage in dealing with the lawyer on a personal
level.
It
is clear from the record before us that Attorney Kraemer's client was at a
disadvantage in dealing with his sexual advances. Moreover, even if his representation of the client was not in
fact materially limited by his personal interests, Attorney Kraemer's sexual
contact with her created the potential for such conflict. His fiduciary relationship as the client's
attorney imposed on Attorney Kraemer the responsibility to act in her best
interests. His abuse of that
relationship to further his own personal interests was egregious.
As
discipline for his professional misconduct established in this proceeding, we
suspend Attorney Kraemer's license to practice law for six months. Consistent with prior cases dealing with
attorney unsolicited sexual contact with clients, that suspension corresponds
to the seriousness of that misconduct.
IT
IS ORDERED that the license of Attorney Donald J. Kraemer to practice law in
Wisconsin is suspended for a period of six months, commencing June 3,
1996.
IT
IS FURTHER ORDERED that within 60 days of the date of this order Donald J.
Kraemer 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 Donald J. Kraemer to practice law in Wisconsin
shall remain suspended until further order of the court.
IT
IS FURTHER ORDERED that Donald J. Kraemer 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.: 94-2563-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
Donald J. Kraemer,
Attorney at Law.
_________________________________
DISCIPLINARY PROCEEDINGS AGAINST KRAEMER
Opinion Filed: May 1, 1996
Submitted on Briefs: February 29,
1996
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: For the Board of Attorneys Professional
Responsibility there were briefs by Gregg Herman, counsel, Milwaukee.
For Donald J. Kraemer there was a brief by Gerald
P. Boyle, Milwaukee.
[1] SCR 20:1.8 provides, in pertinent part: Conflict of interest: prohibited transactions
. . .
(k)(1) In this paragraph:
(i) "Sexual relations" means sexual
intercourse or any other intentional touching of the intimate parts of a person
or causing the person to touch the intimate parts of the lawyer.
(ii) If the client is an organization,
"client" means any individual who oversees the representation and
gives instructions to the lawyer on behalf of the organization.
(2) A lawyer shall not have sexual relations
with a current client unless a consensual sexual relationship existed between
them when the lawyer-client relationship commenced.
(3) In-house attorneys representing governmental
or corporate entities are governed by SCR 20:1.7(b) rather than by this
paragraph with respect to sexual relations with other employees of the entity
they represent.
[2] SCR 20:1.3 provides: Diligence
A
lawyer shall act with reasonable diligence and promptness in representing a
client.
[3] SCR 20:1.7 provides, in pertinent part:
. . .
(b) A lawyer shall not represent a client if the
representation of that client may be materially limited by the lawyer's
responsibilities to another client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the representation
will not be adversely affected; and
(2) the client consents in writing after
consultation. When representation of
multiple clients in a single matter is undertaken, the consultation shall
include explanation of the implications of the common representation and the
advantages and risks involved.
To the extent
any of Attorney Kraemer's sexual contact with the client occurred prior to
1988, it is governed by the predecessor of that rule, former SCR 20.24
(1):
Refusing
employment when the interests of the lawyer may impair his or her independent
professional judgment.
(1) Except with the consent of the client after
full disclosure, a lawyer may not accept employment if the exercise of his or
her professional judgment on behalf of the client will be or reasonably may be
affected by his or her own financial, business, property or personal
interests.