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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
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No. 95-1584-D
STATE OF WISCONSIN
: IN SUPREME COURT
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In the Matter of Disciplinary Proceedings Against MICHAEL B. SANDY, Attorney at Law. |
FILED APR 30, 1996 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 Michael B. Sandy to practice law in Wisconsin be suspended for nine
months as discipline for professional misconduct. That misconduct consisted of his attempt to represent a person in
a matter adverse to a client he was representing in a criminal matter, gaining
access to a minor's confidential children's court file without court authority
by misrepresenting that he was the minor's attorney, misrepresenting to the
court the source of his information regarding the minor's prior sexual assault
allegations, failing to keep a client reasonably informed of the status of his
case and refusing to take delivery of the client's certified letter, and using
cocaine with a client. In addition to
the license suspension, the referee recommended that Attorney Sandy be required
to submit to random drug testing for a period of two years, with the results of
those tests reported to the Board of Attorneys Professional Responsibility
(Board).
We determine that the
seriousness of the professional misconduct established in this proceeding
warrants discipline more severe than that recommended by the referee. Attorney Sandy used cocaine on several
occasions with a client he was representing in a criminal matter, and it was
the client who supplied the illegal drug.
That and his other misconduct, particularly his misrepresentations to a
court regarding the source of information he had obtained by making
misrepresentations to court personnel, warrant the suspension of his license for
one year. In addition, it is
appropriate to impose conditions directed to Attorney Sandy's continued
rehabilitation from alcoholism and drug abuse.
Attorney Sandy was admitted
to the practice of law in Wisconsin in 1989 and practices in Oak Creek. He has not previously been the subject of a
disciplinary proceeding but has been suspended from the practice of law since
November 1, 1995 for failure to pay State Bar membership dues. The referee in this proceeding, Attorney
Stanley Hack, made the following findings of fact based on evidence presented
at a disciplinary hearing.
In July of 1993, Attorney
Sandy used cocaine with a client he had been appointed by the State Public
Defender to represent on an arson charge.
Following return of the jury verdict, Attorney Sandy and his client went
to several places to drink and later used cocaine. Between the time of the verdict and the client's sentencing, they
used cocaine together six times. In the
disciplinary proceeding, Attorney Sandy testified that he had a history of
alcohol abuse and cocaine use and that he practiced law and made court
appearances under the influence of alcohol and cocaine, claiming that it
assisted his work. The referee
concluded that Attorney Sandy's use of cocaine constituted criminal acts
reflecting adversely on his trustworthiness or fitness as a lawyer, in
violation of SCR 20:8.4(b).[1]
During March and April of
1993, Attorney Sandy was appointed by the State Public Defender to represent a
man charged with assaulting a minor female residing in a county group home
where he was employed as a counselor and with providing her cocaine. During the last day of trial in the matter,
after he had cross-examined the minor, Attorney Sandy had a telephone
conversation with her during which she asked about the possibility of bringing
a civil action against the group home.
When the client learned of that communication, he became angry and
discharged Attorney Sandy.
After being discharged,
Attorney Sandy made several telephone calls to the minor's home attempting to
ascertain whether she was going to pursue a civil action against the group
home, which would have involved his former client. Attorney Sandy met with the minor at her high school and they
discussed a possible civil action, which Attorney Sandy said he would not
handle but would refer to another attorney, for which he would receive a
portion of the attorney fees. No
agreement was made for the referral of the matter to another attorney, and the
matter was not pursued. Attorney Sandy
did not have permission from his former client to have those contacts with the
minor about a possible civil action against the group home.
The referee concluded that
Attorney Sandy's contacts with the minor during his client's criminal trial and
thereafter in regard to a possible civil action that necessarily would have
involved and been adverse to that client constituted an attempt to violate SCR
20:1.9(a), which prohibits a lawyer from "represent[ing] another person in
the same or a substantially related matter in which that person's interests are
materially adverse to the interests of the former client unless the former
client consents in writing after consultation."
While representing the client
in the sexual assault case, Attorney Sandy learned of information potentially
helpful to his client's defense contained in the minor's confidential
children's court file that concerned prior false allegations the minor had made
of having been sexually assaulted.
Although aware the file was confidential and could not be inspected
without a court order, Attorney Sandy got access to and examined that file
without a proper order by misrepresenting to the clerk of the children's court
that he was the minor's attorney.
After reviewing the
confidential file, Attorney Sandy asked in pretrial motions for permission to
introduce evidence of the minor's prior sexual assault allegations. When the prosecutor questioned how he could
have knowledge of those matters without first having examined the confidential
court file, Attorney Sandy told the court he had obtained the information from
various sources but did not disclose that he had reviewed the confidential
file.
The referee concluded that
Attorney Sandy's gaining access to a confidential file in the children's court
without an appropriate court order by misrepresenting that he was the minor's
attorney constituted the making of a false statement, in violation of SCR
20:4.1,[2]
4.4[3]
and 8.4(c),[4] and violated
the minor's legal rights. The referee
further concluded that his misrepresentation to the court regarding the source
of information about the minor's prior sexual assault allegations violated SCR
20:3.3(a)(1)[5] as a false
statement of fact made to a tribunal.
In another matter, in July,
1993, the State Public Defender appointed Attorney Sandy to provide appellate
representation to a client. In the
middle of August, 1993, Attorney Sandy wrote the client of his appointment and
said he was awaiting transcripts and would meet with the client in October to
discuss the case. Attorney Sandy's next
communication to the client was by letter of February 19, 1994.
The client sent Attorney
Sandy a certified letter the post office attempted to deliver on three dates
from mid-February to early March, 1994, but Attorney Sandy did not pick up that
letter. The client subsequently told
Attorney Sandy that he had not received copies of material he had filed with
the trial court. Attorney Sandy stated
that he probably did not send copies of the material to the client
"because that's time I could have used for a good client." At the time, Attorney Sandy was aware the
client was seeking another attorney to represent him and had filed a grievance
with the Board. After being dismissed
as the client's attorney, Attorney Sandy asked the trial court to remove his
pending postconviction motions from the trial court's calendar but did not tell
the client he had done so. The referee
concluded that Attorney Sandy's failure to keep his client reasonably informed
of the status of the appeal and his failure to take delivery of the client's
certified letter violated SCR 20:1.4(a).[6]
In recommending a nine-month
license suspension as discipline for Attorney Sandy's misconduct in these
matters, the referee considered in mitigation that Attorney Sandy voluntarily
obtained treatment for his substance abuse, is part of an effective Alcoholics
Anonymous program and "appears to be on the way to a recovery." Upon reviewing the referee's findings,
conclusions and recommendation for discipline, the court ordered the parties to
show cause why discipline more severe than the recommended nine-month license
suspension should not be imposed.
In its response, the Board
continued to urge a one-year license suspension and the imposition of
conditions directed to Attorney Sandy's alcohol and drug rehabilitation in
addition to those recommended by the referee.
Specifically, the Board recommended that Attorney Sandy be required to
continue attendance at Alcoholics Anonymous meetings at least three times per
week during the period of license suspension, submit to monthly random drug and
alcohol screenings at his own expense for a period of two years, and submit to
the Board quarterly the results of those screenings and verification of his
attendance at Alcoholics Anonymous meetings.
We adopt the referee's
findings of fact and conclusions of law and determine that the nature and
extent of Attorney Sandy's professional misconduct, its seriousness, and his
need for continued rehabilitation from alcohol and substance abuse warrant a
one-year license suspension and the imposition of the conditions recommended by
the referee and by the Board.
IT IS ORDERED that the
license of Attorney Michael B. Sandy to practice law in Wisconsin is suspended
for a period of one year, commencing June 3, 1996.
IT IS FURTHER ORDERED that
for a period of two years, commencing the date of this order, Michael B. Sandy
comply with the conditions set forth in this opinion.
IT IS FURTHER ORDERED that within 60 days of the date of this
order Michael B. Sandy 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 Michael B. Sandy to practice
law in Wisconsin shall remain suspended until further order of the court.
IT IS FURTHER ORDERED that
Michael B. Sandy 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.: 95-1584-D
Complete Title
of Case: In the Matter of Disciplinary
Proceedings Against
Michael B. Sandy,
Attorney at Law.
_______________________________
DISCIPLINARY PROCEEDINGS AGAINST SANDY
Opinion Filed: April 30, 1996
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented:
Not Participating:
ATTORNEYS:
[1] SCR
20:8.4 provides, in pertinent part: Misconduct
It is professional misconduct for a lawyer
to:
. . .
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
[2] SCR
20:4.1 provides: Truthfulness in
statements to others
In the course of representing a client a
lawyer shall not knowingly:
(a)
make a false statement of a material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
[3] SCR
20:4.4 provides: Respect for rights
of third persons
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
[4] SCR
20:8.4 provides, in pertinent part: Misconduct
It is professional misconduct for a lawyer
to:
. . .
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;