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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.
94-3118-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against JAMES P.
O'NEIL, Attorney at Law. |
FILED NOV
21, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
ATTORNEY disciplinary proceeding. Attorney's license suspended.
PER
CURIAM. We review the recommendation of the referee that the
license of James P. O'Neil to practice law in Wisconsin be suspended for 12
months as discipline for engaging in dishonesty, fraud, deceit and
misrepresentation by retaining and failing to report to his law firm
approximately $26,700 in fees for professional services he rendered as
court-appointed guardian ad litem and in numerous files he had opened but did
not disclose to his law firm at the time he separated from employment. In addition, he retained a check from Brown
county knowing it was a duplicate payment of guardian ad litem fees the firm
already had been paid.
We
determine that, under the circumstances presented, the recommended one-year
license suspension is appropriate discipline to impose for Attorney O'Neil's
professional misconduct. By failing to
report his receipt of fees for his legal services to which his law firm was
entitled and keeping a county check knowing it constituted a double payment of
his fees as court-appointed guardian ad litem, Attorney O'Neil has seriously
breached his duty of honesty and his fiduciary obligation in respect to the
firm that employed him, as well as his duty of honest dealing with the county
that retained him for legal services.
Attorney
O'Neil was admitted to the practice of law in Wisconsin in 1988 and practices
in Green Bay. He has not previously
been the subject of a disciplinary proceeding.
The referee, Attorney John E. Shannon, Jr., made findings of fact based
on Attorney O'Neil's stipulation.
Although
there was no written employment agreement, it was understood that the law firm
in which Attorney O'Neil began practice in June, 1988 was entitled to all fees
generated by him while employed at the firm.
In January, 1992, the compensation arrangement between him and the firm
changed, and he was to receive a base salary and a percentage of all net fees
generated above a specified amount. All
fees were to be billed through and paid to the firm.
Attorney
O'Neil took a leave of absence from the firm from December, 1990 to July, 1991,
while on active duty in the U.S. Army Reserve, serving in the Gulf War. Following his return to the firm, Attorney
O'Neil learned that it had terminated his pension plan by not making payments
to it while he was on active duty. In
addition, the firm began excluding him from social activities.
When
it was decided in May, 1993 that his employment with the firm would terminate,
Attorney O'Neil submitted a list of what he represented as all active files he
currently was working on. In fact, that
list was not complete. Soon after his
departure, the firm received a check for some $8400 from Brown county circuit
court addressed to Attorney O'Neil, but it found no record of the case in which
he had served as guardian ad litem and the fees for which the check
represented. The firm's subsequent
investigation disclosed that Attorney O'Neil had served in the matter from 1991
to 1993.
When
the firm confronted him concerning that check, Attorney O'Neil admitted that it
was payment for services he had rendered as guardian ad litem during the time he
was employed with the firm. At the same
time he produced a list of 43 files he had opened during that period but failed
to disclose to the firm at the time of his termination. It was determined that he had retained
approximately $26,700 of fees he generated on files and cases, including the
guardian ad litem fee.
During
the investigation into this matter conducted by the Board of Attorneys
Professional Responsibility, it was discovered that in September, 1992 Attorney
O'Neil had deposited into his personal account a Brown county check for
approximately $2130 in payment of his fees in a guardian ad litem case for
which the firm already had received payment.
An employee of the firm reported having given that check to Attorney
O'Neil, telling him it was a duplicate payment, and that Attorney O'Neil said
he would take care of it. The
investigation also disclosed that Attorney O'Neil had retained another
duplicate payment from the county but he denied knowledge that the firm
previously had been paid for those services.
The
referee concluded, consistent with Attorney O'Neil's admissions, that the
misconduct in this matter involved dishonesty, fraud, deceit and
misrepresentation, in violation of SCR 20:8.4(c).[1] In recommending a 12-month license
suspension, the referee acknowledged the testimony of six character witnesses
who testified on Attorney O'Neil's behalf, one of them his current law
partner. The referee also found that
Attorney O'Neil has admitted his misconduct, expressed remorse for it and made
full restitution to his firm and to the county. The referee expressed his belief that Attorney O'Neil is not
likely to repeat the misconduct and that he has rehabilitated himself, as
evidenced by his competent and ethical practice of law in another firm.
We
adopt the referee's findings of fact and conclusions of law and determine, in
view of the factors considered by the referee, that the recommended license
suspension is appropriate discipline to impose for Attorney O'Neil's
professional misconduct. In addition,
we require that Attorney O'Neil pay the costs of this proceeding, as the
referee had recommended.
IT
IS ORDERED that the license of Attorney James P. O'Neil to practice law in
Wisconsin is suspended for a period of one year, commencing December 21, 1995.
IT
IS FURTHER ORDERED that within 60 days of the date of this order James P.
O'Neil 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 James P. O'Neil to practice law in Wisconsin
shall remain suspended until further order of the court.
IT
IS FURTHER ORDERED that James P. O'Neil 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.: 94-3118-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
James P. O'Neil,
Attorney at Law.
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DISCIPLINARY PROCEEDINGS AGAINST O'NEIL
Opinion Filed: November 21, 1995
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS: