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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.
95-0815-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against ROBERT M.
WEIDENBAUM, Attorney at Law. |
FILED OCT
13, 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 Attorney Robert M. Weidenbaum to practice law in Wisconsin be
suspended for 60 days as discipline for professional misconduct. That misconduct consisted of his having represented
a client when that representation was directly adverse to another client,
representing a client when that representation was materially limited by his
responsibilities to another client and by his own interests, entering into
three loan transactions with a client that were not fair or reasonable to the
client without the client's consent or opportunity to consult with independent
counsel, and testifying falsely during a deposition in a divorce proceeding and
in the Board of Attorneys Professional Responsibility's (Board) investigation into
his professional misconduct. We
determine that the misconduct of Attorney Weidenbaum in these matters is
sufficiently serious to warrant the recommended license suspension.
Attorney
Weidenbaum was admitted to practice law in Wisconsin in 1980 and practices in
St. Francis. He has not previously been
the subject of a disciplinary proceeding.
Upon his plea of no contest to the allegations of the Board's complaint,
the referee, Attorney Jean DiMotto, made the following findings of fact.
In
1988, Attorney Weidenbaum represented a business owned by a client whose spouse
was in charge of its day-to-day operation.
In the spring of 1989, he agreed to incorporate a new business entity
that would be a wholly owned subsidiary of the client. However, the client and his spouse separated
and Attorney Weidenbaum then incorporated the new entity with all of its shares
in the name of the client's spouse. He
did so without the consent of his client, even though he was aware of the
couple's separation and despite the fact that the client had paid all of the
fees relating to the incorporation of the new entity.
At the spouse's direction and without
consulting or obtaining the consent of the client, Attorney Weidenbaum
redrafted an unexecuted agreement he had previously drafted for the client,
substituting the new entity for the client.
The redrafted agreement was executed in June, 1989 and revenue from it
went to the new entity instead of to the original client.
Also
in the spring of 1989, while he was incorporating the new entity, Attorney
Weidenbaum received from the client's spouse two personal checks, one in the
amount of $7,000 and the other in the amount of $1,500, each of which he placed
in his personal checking account and used the proceeds to pay personal
expenses. He did not give the spouse
any collateral for those funds or a writing setting forth the terms for their
repayment. During the Board's
investigation of this matter, Attorney Weidenbaum testified that he merely
cashed those checks for the spouse and gave her the proceeds.
In
September, 1989, the spouse loaned Attorney Weidenbaum $11,000 but she gave no
written consent to that transaction.
Attorney Weidenbaum gave no collateral for that loan and there was no
requirement that he repay it by a date certain. Further, the amount of the loan set forth in his letter
acknowledging it was approximately $1,100 less than the money he actually
received.
In
February, 1990, Attorney Weidenbaum undertook to represent the spouse in a
divorce proceeding. When notified by
the attorney for her husband of a possible conflict of interest, based on his
having represented the husband's business as well as the new entity, his
possession of client confidences and the possibility that he might be called as
a witness regarding the formation and ownership of various assets of the
marriage, Attorney Weidenbaum responded that he reviewed the applicable rules
of attorney professional conduct and concluded that his representation of the
spouse was not substantially related to his representation of her husband's
business. He did not, however, discuss
any possible conflict of interest with the husband or obtain written consent
for the spouse's representation from either of the parties.
In
March, 1990, Attorney Weidenbaum vacationed with the spouse, using airline
tickets that set forth her surname as Weidenbaum. Attorney Weidenbaum did not obtain his client's consent to his
continued representation of her in the divorce proceeding in light of the
effect their personal relationship might have on the already hostile divorce
proceeding. Attorney Weidenbaum
eventually withdrew from that representation in June, 1990, just prior to a
hearing on a motion to compel his withdrawal.
However, he continued to represent the spouse in business matters. In
July, 1991, during a deposition taken in the divorce proceeding, Attorney
Weidenbaum testified under oath that he and the woman had begun dating in
September, 1990 but did not begin living together until the following February. That statement was contrary to one he had
given to police officers investigating a domestic altercation the preceding
August, in which he identified her as his "live-in girlfriend." During an investigative meeting of the
district professional responsibility committee in October, 1993, Attorney
Weidenbaum testified under oath that he began dating the woman in August, 1990
and they began living together in January or February, 1991.
On
the basis of those facts, the referee concluded that Attorney Weidenbaum
engaged in professional misconduct as follows.
By representing the new business entity without first consulting with
his clients about the conflict of interest and obtaining their written consent
to his concurrent representation of the two entities, he represented a client
when that representation was directly adverse to another client, in violation
of SCR 20:1.7(a).[1] By representing the woman in respect to the
new entity and in her divorce without obtaining written consent from the two
parties, he represented a client when that representation was materially
limited by his representation of the original client and by his personal
relationship with the subsequent client, in violation of SCR 20:1.7(b).[2]
The
referee also concluded that by entering into the loan transactions without the
client's written consent or opportunity to consult with independent counsel and
when the terms of those loans were not fair or reasonable, Attorney Weidenbaum
entered into business transactions with a client prohibited by SCR 20:1.8(a).[3] Finally, by testifying falsely during his
deposition in the divorce proceeding and before the district committee
concerning when he began dating the client and when they began living together
and, in his testimony before the committee, what he did with the two checks she
had given him, Attorney Weidenbaum engaged in conduct involving dishonesty,
deceit and misrepresentation, in violation of SCR 20:8.4(c),[4]
and knowingly made false statements of material fact in connection with a disciplinary
investigation, in violation of SCR 20:8.1(a).[5]
We
adopt the referee's findings of fact and conclusions of law concerning Attorney
Weidenbaum's professional misconduct in these matters. The recommended 60-day license suspension is
appropriate discipline to impose for that misconduct.
IT
IS ORDERED that the license of Attorney Robert M. Weidenbaum to practice law in
Wisconsin is suspended for a period of 60 days, commencing November 6,
1995.
IT
IS FURTHER ORDERED that within 60 days of the date of this order Robert M.
Weidenbaum 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 those
costs within that time, the license of Robert M. Weidenbaum to practice law in
Wisconsin shall remain suspended until further order of the court. IT
IS FURTHER ORDERED that Robert M. Weidenbaum comply with the provisions of SCR
22.26 concerning the duties of a person whose license to practice law in
Wisconsin has been suspended.
JANINE
P. GESKE, J., did not participate.
SUPREME COURT OF WISCONSIN
Case No.: 95-0815-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
Robert M. Weidenbaum,
Attorney at Law.
_________________________________
DISCIPLINARY PROCEEDINGS AGAINST WEIDENBAUM
Opinion Filed: October 13, 1995
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating: GESKE, J., did not participate
ATTORNEYS:
[1] SCR 20:1.7 provides, in pertinent part: Conflict of interest: general rule
(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse to another client,
unless:
(1) the lawyer reasonably believes the
representation will not adversely affect the relationship with the other
client; and
(2) each client consents in writing after
consultation.
[2] SCR 20:1.7 provides, in pertinent part: Conflict of interest: general rule
(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.
[3] SCR 20:1.8 provides, in pertinent part: Conflict of interest: prohibited transactions
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an ownership, possessory,
security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the
lawyer acquires the interest are fair and reasonable to the client and are
fully disclosed and transmitted in writing to the client in a manner which can
be reasonably understood by the client;
(2) the client is given a reasonable opportunity
to seek the advice of independent counsel in the transaction; and
(3) the client consents in writing thereto.